Annual Report of the Chief Surveillance Commissioner to the Prime Minister and to Scottish Ministers for 2007-2008 (.pdf 32 pages) by the Rt. Hon. Sir Christopher Rose, published on 22nd July 2008.
Unlike the other two RIPA Commissioners, there is a website for this one: Office of Surveillance Commissioners, which implies a bit more openness and transparency, but not much.
There is no mention this year of Automatic Number Plate Recognition, despite the mention of it in the previous two Annual Reports, and despite the scandalous slurping of the London Congestion Charge scheme CCTV, ANPR and other data into a secret Metropolitan Police system, which we wrote to Sir Christopher about, to no avail.
Sir Christopher gives no details about the use of the new RIPA Part III section 49 notice powers to demand Encryption Keys or plaintext decrypted electronic data, which came into force on 1st October 2007.
There are no more details about the Sadiq Khan MP / Babar Ahmad bugging in Woodhill Prison scandal, which Sir Christopher produced a separate report on.
The reports by the Chief Surveillance Commissioner manage to give a breakdown into various broad categories e.g. illegal drugs, kidnapping, terrorism etc. of the statistics which they publish, without compromising any national security or serious organised crime investigations, so why can't the other RIPA Commissioners do likewise ?
Local Authorities, by virtue of dealing with far fewer requests for Directed Surveillance or for the use of Covert Human Intelligence Sources than the Police, spend less on training, make more mistakes and do not seem to understand the concept of "proportionality". We feel that they should be stripped of these RIPA powers entirely.
Sir Christopher makes some peculiar comments on the Freedom of Information Act, to which his Office is not actually subject.
See our more detailed comments on this latest report below:
As with all of these RIPA Commissioner reports, several paragraphs are devoted simply to explaining which bits of the complicated legislation this particular Commissioner operates under.
The Chief Surveillance Commissioner operates under 3 Acts of Parliament:
1.2. It is my duty to keep under review:
(a) The performance of functions under Part III of the Police Act 1997 ('the 1997 Act');
(b) (except in relation to the Interception of Communications and the Intelligence Services) the exercise and performance of the powers and duties conferred or imposed by or under Part II of the Regulation of Investigatory Powers Act 2000 ('RIPA'); and
(c) The exercise and performance of the powers and duties conferred or imposed by or under the Regulation of Investigatory Powers (Scotland) Act 2000 ('RIP(S)A').
The Scottish version of RIPA is more akin to the Police Act 1997 Part III, than to the main Regulation of investigatory Powers Act 2000 i.e. it does not cover interception of communications , communications traffic data or encryption keys.
1.3. This covers the covert activities (except telephone and mail interception) carried out by all public authorities, except the intelligence services. This now include Part III of RIPA relating to protected electronic information which came into force during the period covered by this report.
We were expecting some actual mention of RIPA Part III section 49 notices for encryption keys (or the plaintext of data protected by those keys) in this report, but there is none.
1.4. It is the duty of the Surveillance Commissioners ('the Commissioners') to appraise all authorisations for property interference and intrusive surveillance either before or immediately after they have been given. There is a right of appeal against their decisions to me.
Almost none of the general public even know about the existence of the Chief Surveillance Commissioner, so it is hardly a surprise that there are many appeals to him about abuses of surveillance which happens in secret.
Similarly there is no further detail on the Sadiq Khan MP / Babar Ahmad bugging in Woodhill Prison scandal:
2.5. Finally, I was asked by the Lord Chancellor and the Secretary of State for Justice to investigate and report on two visits by Sadiq Khan MP to Babar Ahmad at Her Majesty's Prison Woodhill. I submitted my Report to the Prime Minister, the Lord Chancellor and the Home Secretary on 20th February 2008. I make no further reference to it in this report. The Report was presented to the House of Commons by the Home Secretary on 21st February and published in full. It speaks for itself.
Neither prisons nor secure mental hospitals are actually within the statutory remit of any of the RIPA Commissioners, but the Interception of Communications and the Chief Surveillance Commissioners were asked to inspect them anyway by the Home Secretary.
3.2. I have now conducted the first inspections of the Healthcare Commission, the Gambling Commission and the Gangmasters Licensing Authority. I no longer intend to inspect the special hospitals at Ashworth, Broadmoor and Rampton because legislative adjustments indicate that they can no longer grant covert activity independently. Any covert activity to be conducted in these establishments should be authorised by the NHS Counter Fraud and Security Management Service which I already inspect.
These "special hospitals" are where some extremely dangerous criminally insane people are held, supposedly under conditions of high security.
3.3. I have not inspected the Local Authorities in Northern Ireland as I have not beengiven the power to do so. I note that these authorities have never been inspected.
Given the disproportionate behaviour of some Local Authorities in England and Wales, there is no excuse for Local Authorities in Northern Ireland to be exempt from inspections. This needs to be fixed in any amended Regulation of Investigatory Powers Act.
3.4. The Commissioners have deduced that they do not currently have the statutorypowers to provide the independent judicial oversight required by the judgment delivered in the High Court of Justice in Northern Ireland, Queen's Bench Division (Judicial Review) in the matter of an application by C, A, W, M and McE ( NIQB 101) relating to the conduct of covert activity that is considered likely to acquire confidential information as defined by the legislation. I understand that the judgement is the subject of appeal to the House of Lords.
"judgment" or "judgement" ? Technically "judgement" is the correct British spelling, and "judgment" is the American version, but even the House of Lords , the highest Court in the United Kingdom seems to be using the US spelling - see House of Lords Judgments , and this is also the usage on the Judiciary of England and Wales website.
If the "e" is really superfluous, then why not spell "Judge" as "Judg" or even phonetically as "Juj" ?
Is this a deliberate choice, or is it sneaking in because people have not installed a British dictionary in their American computer software ?
See C & Ors, Re Judicial Review  NIQB 101 (30 November 2007)
which involves cases where the authorities have electronically snooped on supposedly legally privileged conversations between lawyers and their clients, and between doctors and conducting psychiatric medical examinations in police stations. or prisons,
Why is the Government seeking to continue with these clear breaches of Article 8 in Northern Ireland, especially following the promises made by Ministers about "legal privilege" following the Sadiq Khan MP / Babar Ahmad bugging in Woodhill Prison scandal ? ?
5.2. I continue to require Chief Officers to report to me all covert operations in which statutory requirements have not been observed and also cases which fail in Court on account of defects in covert surveillance. Out of the 56 unauthorised surveillance activities reported to me by law enforcement agencies in this reporting year, most have resulted from the non-retrieval of technical equipment either because circumstances prevented early retrieval or a failure to confirm retrieval at the time the relevant authorisation was cancelled. I am, however, satisfied that appropriate remedial action has been taken in each case.
We assume that this "non-retrieval of technical equipment" i.e. "electronic probes", audio and/or video transmitters or recorders, and vehicle tracking devices etc. is also what has happened with
Thirteen errors in respect of RIPA authorisations and ISA warrants
the majority of the thirteen errors occurred in respect of surveillance and interference with property for which there was for a comparatively short time no valid authorisation or warrant in force
There seems to have been an increase in Kidnapping investigations, compared with the previous year:
6.3. Excluding renewals, there were 2,493 property interference authorisations during 2007-2008, which is slightly up on the previous year (2,311). There were 525 renewals of authorisations made during 2007-2008, compared with 481 in the previous year.
6.4. There were 242 cases where the urgency provisions allowed for in the legislation were used. There were also two cases where an authorisation was properly given in the absence of the Chief Officer. In the previous year these figures were 216 and four respectively. The increase in the number of urgent cases again appears to be due to the large numbers of investigations into offences of kidnapping.
There is an obscure hint about illegal surveillance which has been detected, but which is not being prevented by Surveillance Commissioners:
6.6. Four authorisations were quashed, where the necessity test was not met - the same number as in the previous year. There were also four invalid cases where there was no power to quash or cancel the authorisations because they did not fall within the relevant Act.
How can there be authorisations for intrusive property interference which "did not fall within the relevant Act." ?
How often is this legal loophole being exploited ?
6.7. There were 355 intrusive surveillance authorisations during 2007-2008 which is comparable with numbers authorised in the previous year (350). Renewals of authorisations also remain relatively stable, with 77 renewals granted this year, compared with 88 during 2006-2007.
6.8. Urgency provisions were used in 25 authorisations this year, without any needing to be signed in the absence of the Chief Officer. This is a significant increase on the previous year where the numbers were 11 and nil respectively.
7.2. Law enforcement agencies granted 18,767 directed surveillance authorisations during the period 1 April 2007 to 31 March 2008, and 3,020 were still in place at the end of that period. This compares with 19,651 and 2,526 respectively in the previous year indicating a relatively stable situation.
7.3. In relation to other public authorities 9,535 directed surveillance authorisations were granted during the year, of which 1,217 were still in place at the end of the reporting year. With a similar number of public authorities providing statistics as in the previous year, this indicates a significant decrease in the use of such powers, the figures for the previous year being 12,494 and 1,800 respectively.
For some reason, Sir Christopher does not bother to explain the jargon term "CHIS", which stands for Covert Human Intelligence Sources i.e. informers, infiltrators, paid denouncers, secret agents, undercover operatives, spies, agent provocateurs,"grasses", "snouts", "touts" etc. Some of these will be decent people, acting as "whistleblowers", others will be active criminals who are being allowed to continue to commit crimes with a view to informing on their bosses or confederates.
7.4. There were 4,498 CHIS recruited by law enforcement agencies during the year; 4,653 were cancelled during the year (including some who were recruited in the previous year); and 3,776 were in place at the end of March 2008. The figures for the previous year which were 4,373, 4,800 and 3,705 respectively indicate a stable usage of CHIS.
7.5. During the current reporting year other public authorities recruited 204 CHIS, of whom 105 were cancelled during the year with 72 in place on 31 March 2008. This is a significant reduction in the use of these powers compared with the previous year when there were 429 recruited, 345 cancelled and 143 in place at the end of the year.
Later in the Report, Sir Christopher comments again on the new Police jargon term tasked witness", which was, perhaps, being used as a means of evading the scrutiny procedures laid down for CHIS.
8.9. I reported last year on the use of the term 'tasked witness' as an alternative to the correct, legally recognised term (CHIS). The Commissioners have reconsidered their stance on this issue and confirm that the use of the term is acceptable on the understanding that whatever term is used anyone acting as a CHIS within the legislative definition is treated accordingly.
The correct handling of such CHIS is important because they and their families could well be in physical danger if their identities are revealed by Government data security blunders, or by corrupt insiders.
There are also huge potential dangers for innocent people who may be falsely accused, arrested, fingerprinted, DNA sampled, and dragged through the Courts, without being able to challenge the testimony of CHIS who become Anonymous Witnesses, who may be acting maliciously or for profit. See the controversial Criminal Evidence (Witness Anonymity) Act 2008.
It was entirely foreseeable that the use of information technology, coupled with a secretive, bureaucratic mindset, and the vast increase in the use of the RIPA and Police Act surveillance powers, without any public transparency or individual accountability, would result in:
8.8. The areas that have received the most criticism in this reporting period are:
(a) the incorrect reference to biographical detail as the method to judge whether private information will be acquired when the proper consideration is whether privacy, in its widest sense, will be intruded upon;
(b) the use of templated wording which invariably leads to error and is often an indicator of speculative activity;
(c) the timely cancellation of authorisations and insufficient detail in cancellations;
(d) an apparent over-reliance, by authorising officers, on information technology to prompt management actions and the incorrect use of set times before review; and
(e) the continued failure to articulate properly why the proportionality test has been met.
Sir Christopher re-iterates the lack of proper IT security accreditation for the the IT systems which run the " application and authorisation processes"
8.10. Last year I said that there was a need for agreement on who holds the authority to accredit information technology solutions designed to enhance application and authorisation processes. I have not detected any enthusiasm for this but it seems to be an inhibitor to the proper transfer or storage of information especially in the domain of counter terrorism and inter-agency management of CHIS. In my opinion it is an area on which I am entitled to express a view because it is a requirement for RIPA authorising officers to assess risk; they cannot do so if either they do not have the confidence that they have access to all relevant information or the information that they do have is held on systems that they are not certain are secure.
Why are Privately run Prisons, or indeed State run Prisons, not already under the auspices of all of the RIPA Commissioners ?
8.11. I reported last year that I would welcome an improvement to the regulatory oversight of privately run prisons. I have been informed that it is intended to include these establishments, by way of a Statutory Instrument, on the Schedule of public authorities to be inspected by me.
There appears to have been some sloppiness or incompetence by the Security Service MI5:
8.13. I have no responsibility for the inspection of the Security Service's authorisations but have had occasion to criticise the duplication, by the law enforcement agencies, of RIPA authorisations resulting from dissatisfaction with the details contained in the proper authorisation from the Security Service. If those conducting the surveillance are uncomfortable or unsure of what is being required of them then the authorising officer should be challenged to clarify. There can only be one authorising officer per authorisation and one set of documentation.
This issue has not been highlighted by the Intelligence Services Commissioner Sir Peter Gibson, who does have responsibility for the Security Service's authorisations, or perhaps it has, but it is being kept secret.
Local Authorities have been in the news recently, especially the notorious (Conservative run) Poole Council, which has snooped disproportionately on a couple of parents who were applying to place their child in a particular school catchment area.
None of the RIPA Commissioners will investigate any complaints about such abuses from members of the public or from the media, but they might bring up the topic when the Local Authority is next inspected, which might take a couple of years.
The criticisms of the inexperience and lack of training of Local Authority personnel made here, mirrors that made in the Report of the Interception of Communications Commissioner for 2007 by the Rt. Hon. Sir Paul Kennedy
9. Inspections of Government Departments and Local Authorities
9.1. This year 174 inspections of Local Authorities were carried out, which is a slight decrease over the preceding year (184). These authorities do not have the power to grant authorisations for property interference or intrusive surveillance and continue to be inspected less often than law enforcement agencies as they use their powers much less (see Annex E).
9.2. The evidence is that these authorities tend to resort to covert activity as a last resort but, when they do, have a tendency to expose lack of understanding of the legislation by completing documentation poorly. In particular there is a serious misunderstanding of the concept of proportionality. It is not acceptable, for example, to judge, that because directed surveillance is being conducted from a public place, this automatically renders the activity overt or to assert that an activity is proportionate because it is the only way to further an investigation. At the end of the reporting period, media reports highlighted the need for a public debate on the use of these powers and specifically the issue of proportionality. I encourage any debate which assists in educating the public and which enables authorising officers to judge proportionality better.
9.3. The inexperience of some authorising officers is matched, in many cases, by poor oversight by those nominated as monitoring officers and a tendency for Chief Executives not to understand the risks that face their authorities. Many authorities do not recognise that they are vulnerable to criticism - and potentially the exclusion of evidence - if activity is conducted without appropriate management or if activity is being conducted in a disproportionate manner. If authorities wish to retain the protection that RIPA affords, I encourage a greater attention to detail.
There is a strong case for Local Authorities to be stripped of these RIPA directed surveillance powers entirely. On the rare occasions where, say a Trading Standards or Environmental Health investigation becomes serious enough to contemplate the use of RIPA powers, it should be handed over to the Police to investigate.
9.4. An area of concern is the increasing temptation to use innovative technology without properly considering the application of the legislation. I cautioned against this last year (paragraph 11.2). It is not necessarily the fault of the authority but is often a reaction to Government initiatives. For example, the use of tracking devices often introduces the need to acquire a property interference authorisation, as well as a directed surveillance authorisation, and this prevents Local Authorities from using this type of activity. Another example is the use of covert techniques to monitor activities which may provide a product, of the same quality as that of a surveillance device inside a private vehicle, which requires consideration of whether the activity is crossing the line into intrusive surveillance, for which Local Authorities do not have the power.
Is Sir Christoper referring to GPS Tracking devices and Directional Microphones ?
Private vehicles (but not necessarily company fleet or commercial vehicles) are treated the same as residential properties (but not necessarily business premises) under European Court of Human Rights case law regarding Article 8 "Everyone has the right to respect for his private and family life, his home and his correspondence", which is incorporated into the UK's Human Rights Act 1998 Schedule 1
Local Authorities appear to have similar problems of of infrequent use of RIPA powers, leading to inexperience and a lack of willingness to invest in proper training, in regard to the use of Covert Human Intelligence Sources (CHIS), as they do with Directed Surveillance.
9.7. Another common weakness is where the authorising officer is head of the department conducting the surveillance. If an authorising officer is too close to the investigation it is difficult to demonstrate the independence and objectivity encouraged by the legislation. On the other hand, it is necessary for authorising officers to have sufficient operational experience to exercise judgment. In many cases, authorising officers are conducting detailed operational discussions and managing investigations well, but this sometimes results in scant description of the details of the activity on the RIPA application - the 'who, what, when, where, why and how' of the surveillance activity: this is often not noticed by the authorising officer partly because such discussions have taken place. In these situations, it is often advisable that another authorising officer, less familiar with the specific operational tactics, be used.
There is an even stronger case for Local Authorities to be stripped of their Covert Human Intelligence Sources powers under RIPA, since many of them are already, sensibly, getting their local Police force to handle such sensitive matters. There is no reason why there should not be joint Local Authority Trading Standards and Police investigations into , say, organised gangs of counterfeit goods suppliers etc.
There are some Annexes in the Report with more detailed breakdowns of the statstics, into broad categories which do not compromise national security or criminal investigations. Why can't the other RIPA Commissioners do the same ?
Cases requiring prior approval
• Office premises
• Hotel bedroom
• Matters subject to legal privilege
• Confidential journalistic material
• Confidential personal information
(including armed robbery)
Murder/loss of life
Organised illegal immigration
Cases by category:
• Private vehicle
• Residential premises
What about RIPA Part III ?
Apart from the mention in the paragraphs outlining under what legal powers he operates under, there is no mention whatsoever of any RIPA Part III section 49 notices, which came into force on 1st October 2007, involving Encryption Keys or de-cryptyed plaintext protected electronic data. We know from a Parliamentary Written Answer that there have been at least 8 such cases, and it would have been a bit more reassuring to know that Sir Christopher had actually been informed about them as required.
Finally, the Chief Surveillance Commissioner the Rt. Hon. Sir Christopher Rose seems to hold views about the Freedom of Information Act which contradict, somewhat, those of the Rt. Hon. Sir Paul Kennedy, the interception of Communications Commissioner, when it comes to the Freedom of Information Act (FOIA).
N.B. Unlike , say, the information Commissioner, none of the RIPA Commissioners are technically subject to the FOIA, despite meeting not just one, but both, of the statutory requirements to be placed on the Schedule of Public Bodies i.e. their Offices have been created by an Act of Parliament (RIPA 2000 and Police Act 1997) and they are appointed by a Minister (the Prime Minister).
10. Freedom of Information
10.1. During this reporting period there has been a significant increase in the number of Freedom of Information requests from the media. It is not usually an area on which I comment but I report my concern. I never disclose the contents of my reports to anyone other than the relevant Chief Constable or Chief Executive. But requests to the recipients of my reports have been aimed at acquiring my reports,my correspondence to and from Chief Officers and the action plans related to the recommendations that I make. Responses by public authorities have been inconsistent and there is the perception that a decision by one authority to respond positively may lead the requestor to view negatively those which do not
disclose the information requested.
10.2. When asked for guidance I have responded that it is in the public interest to demonstrate that covert surveillance conducted on behalf of the State is properly regulated. This Annual Report is designed to provide that assurance.
Whilst slightly better than the other RIPA Commissioners' Reports, this Annual Report fails to provide us or the wider public with that assurance.
Seeking assurance of regulation is one thing, but attempting to acquire, under the auspices of freedom of information, operational details or knowledge of covert techniques is another. Redaction of these details from my reports could be misconstrued as secrecy or might adversely affect context and meaning.
There are a huge number of Exemptions to the Freedom of Information Act 2000, which are regularly applied by the Police and Government Departments, so that is hardly a risk at all.
10.3. I favour the advice provided by the Information Commissioner (Guidance Note 25). I regard myself as a 'qualified person' as defined by Section 36 of the Freedom of Information Act and it is my 'reasonable opinion' that for public authorities to disclose the contents of my reports would prejudice the effective conduct of public affairs. The risk of disclosure might tempt some individuals to withhold the full details of covert activities from me or my representatives; it might inhibit my ability to provide the evidence that is necessary to support my recommendations and it might inhibit the free and frank exchange of views and provision of advice that is currently the hallmark of the relationship which my Office enjoys with public authorities.
How can a former senior Judge regard himself as a "qualified person" under the Freedom of Information Act, when his Office is not actually listed as a Public Body under that Act ? If he wants to be a "qualified person", then he should be pressing to have his Office included in that Schedule of Public Bodies (there about 100,000 of these at present).
See our rejected request for this to happen back in 2006:
10.4. I was particularly concerned by one reporter who declared that the reason for seeking the information (detailed statistical data) would "save him time". This is an abuse of the Act and damages the prospects of those making legitimate
This is not and abuse of the Act !
This demonstrates a fundamental misunderstanding of the Freedom of Information Act by Sir Christopher.
There is a presumption of openness and transparency created by the Freedom of Information Act 2000, only under exceptional circumstances is it legitimate for a Public Body to withhold it.
It is entirely legitimate to request such detailed statistical data, without having to give any reason whatsoever, and even without having to give your name and address (a contact email address is sufficient), provided that such data already exists, and would not require excessive extra work to compile specifically for the FOIA request.
There is already a provision for rejecting "vexatious requests", and a vast array of other Exemptions which are regularly rightly used and wrongly abused to hide information from those seeking it under FOIA.
This contrasts with Report of the Interception of Communications Commissioner for 2007 by the Rt. Hon. Sir Paul Kennedy, who seems happy enough for Public Authorities like the Police or Local Authorities etc. to comply with FOIA requests:
although there is no reason why public authorities cannot make a further disclosure in compliance with a request under the Freedom of Information Act if they so wish. There is provision for this in the Code of Practice although each public authority must seek my prior approval before making any further disclosure. That is to ensure that the wider public interest is not adversely affected by a disclosure.
There is no mention this year of Automatic Number Plate Recognition, despite the mention of it in the previous two Annual Reports, and the scandalous slurping of the London Congestion Charge scheme CCTV, ANPR and other data, in Bulk, in Real Time, into a secret Metropolitan Police system, presumably so that data mining and snooping on innocent motorists can be conducted without letting Transport for London staff know what is going on, by virue of Data Protection Act section 29 requests for specific, narrowly targeted data.
See our letter to Sir Christopher, which seems to have resulted in no scrutiny of this mass surveillance scheme whatsoever London ANPR mass surveillance snooping - Chief Surveillance Commissioner Sir Christopher Rose refused to get involved
The Chief Surveillance Commissioner has seen your letter and asked me to reply on his behalf. He notes your interest in these matters but does not think it appropriate to answer your questions.
This mechanism of a RIPA Commissioner's Annual Report, does not provide the proper level of transparency and scrutiny of secret snooping and surveillance, which the public has a right to demand in a democratic society.