There have been some recent changes to the way that local authorities go about surveillance activities. The provisions brought about by the Protection of Freedoms Act 2012 tighten surveillance authorisation procedures and further restrict the ability to conduct directed surveillance activities. The new rules impose a “crime threshold” so that local authorities may now only authorise the use of directed surveillance to prevent or detect criminal offences that are assigned a maximum term of at least 6 months imprisonment; effectively, excluding cases involving statutory nuisance.
The new legislation does not affect noise investigations in the sense that the definitions of intrusive and directed surveilance under the Regulation of Investigatory Powers Act 2000 remain unchanged. However, in this area there still appears to be some contraversy and confusion as to where enforcers stand in relation to noise investigations and surveillance in their day-to-day work.
RIPA AND STATUTORY NUISANCE
Generally speaking local authorities are not permitted to use intrusive surveillance techniques to gather evidence. In addition, in the case of statutory nuisance, RIPA does not allow for the authorisation of directed surveilance at any stage prior to the service of an abatement notice. This is due to RIPA providing for local authorities to conduct surveillance for the purpose of “preventing and detecting crime or preventing disorder”. The vast majority of noise cases do not involve the service of an abatement notice (a civil procedure). Thus, in order to take full advantage of any evidence gathered by the local authority it would be preferable that “surveillance” fell outside of the scope of RIPA; in that it is neither intrusive or directed.
Surveillance is intrusive if it is covert and carried out in relation to anything taking place on any residential premises carried out by an individual or surveillance device on that premises. Where the surveillance device is not located at the premises being surveyed its use may still constitute intrusive surveillance if the device “consistently provides information of the same quality and detail as might be expected to be obtained from a device actually present on the premises”. The use of high quality sound recording equipment may therefore, in some circumstances, fall under the scope of intrusive surveillance where they are used covertly.
Whilst intrusive surveillance applies to information gathered from residential premises it appears not apply to the surveillance of commercial or industrial premises. However, both may fall under the scope of directed surveillance. Surveillance is directed if it is:
(a) Covert but not intrusive;
(b) Carried out for a specific investigation;
(c) Carried out in such a manner as is likely to result in the obtaining of private information about a person;
(d) Carried out otherwise than as an immediate response to events or circumstances.
Crucial to the interpretation of “directed surveillance” then are the following terms:
- Private information;
- Specific investigations; and
- Immediate response.
“Surveillance is covert if, and only if, it is carried out in a manner that is calculated to ensure that persons who are subject to the surveillance are unaware that it is or may be taking place”. As a result it may be sufficent at the start of an investigation for the officer to provide a clear warning to the alleged perpetrator that their investigation may involve monitoring and recording noise from neighbouring property. Many Councils will do this routinely.
Private information should be taken generally to include “any aspect of a person’s private or personal relationship with others”. It could therefore encompass many aspects of life and communication with others. Unlimited recording of the activities of neighbours with the use of noise nuisance recording devices will undoubtably trigger the need for authorisation where investigations are covert as they provide a recording of the sound experienced by the sufferer. However, the Code of Practice states that an authorisation may not be necessary in the case of the covert recording of suspected noise nuisance “where the intention is only to record excessive noise levels from adjoining premises and the recording device is calibrated to record only excessive noise levels”. The implication is that this “exemption” is likely to be more relevant to investigations undertaken under the Noise Act 1996 rather than statutory
nuisance. However, it may be argued that the use of devices to record noise such as music, barking dogs or noise not involving the potential for capturing personal information (such as actual conversation) falls outside the scope of directed surveillance.
The majority of neighbour noise investigations will, by their very nature, involve a reactive response directed to a specific investigation. The definition of directed surveillance may, in effect, limit the ability of enforcers to monitor commercial (e.g. licensed) premises unless it is in response to a specific complaint or if it forms part of a general or routine inspection or, perhaps, wider project involving more than one premises.
Where covert surveillance, likely to reveal private information, is carried out by way of an immediate response to events it may not require directed surveillance authorisation. This may include immediate responses to noise complaints on out-of-hours or night-time response services. Both the legislation and the Code recognise that it would not be reasonably practicable to seek authorisations in such circumstances.
The duties placed on local authorities to investigate and survey for nuisance provide an implied authority to conduct surveillance activity but the local authority must always consider whether their activity falls into the definition of intrusive or directed surveillance. The carrying out “overt” surveillance may provide enough flexibility to enforcers to conduct suitable noise investigations. The decision to conduct “overt” investigations shouldn’t ride roughshot over the rights of individuals though and it is important to recognise that public authorities must still consider compatability with Convention Rights when conducting investigations. In the absence of any legal authority on the issue Councils are advised to clarify duties, methods of investigation and proposed time-scales at the earliest opportunity.
The courts have a wide discretion in accepting different forms of evidence in civil proceedings (especially where it is compelling). Enforcers therefore need not worry themselves too much over the minuiaes of RIPA. In court (and it rarely gets this far), and at worst, they run the risk of some evidence not being accepted. Furthermore it is worth remembering that, in many respects, human rights laws mirror nuisance laws in the sense that it will consider balancing interests and the principle of proportionality. The protocol right to peaceful enjoyment should therefore not be disregarded due to a perpetrator’s right to privacy.