If the Rt Hon Sir Stephen Rose had been more transparent and explicit in his (censored) Annual Report of the Chief Surveillance Commissioner to the Prime Minister and to Scottish Ministers for 2008-200 (.pdf) under the Regulation of Investigatory Powers Act 2000 and the Police Act 1997, which fails to "name and shame" the culprits at the "public authorities" who have been acting illegally, the perhaps today's story in the Daily Telegraph, about the increasingly meddlesome and authoritarian function creeping "Executive Non-departmental Public Body ", the Environment Agency, would already have been dealt with over 2 years ago.
Government officials have been improperly tracking cars and trespassing on private property after receiving advice from the Home Office on circumventing the law, internal documents seen by The Daily Telegraph have disclosed.
By Jon Swaine and Holly Watt
Published: 5:32PM BST 21 Sep 2009
Reports from the Office of Surveillance Commissioners (OSC), a Government agency, found that staff from the Environment Agency investigating the illegal disposal of waste may have broken the law.
The OSC uncovered evidence that the Home Office may have improperly advised the Environment Agency on how to circumvent strict laws governing the use of covert surveillance.
Despite the alleged breaches being uncovered last year, the documents - released following a Freedom of Information request - show that the Environment Agency has continued to use the controversial tactics.
Last night, the Environment Agency said that it was suspending use of the tactics pending a legal judgement on whether they were acceptable.
However, the agency is also trialling a register of secret informants who report suspected waste offences in the north east of England, and eventually plans a national spy network, the Commissioner reported.
"a register of secret informants" or "a national spy network" ? How soon before all their names and addresses etc. are dumped onto an unencrypted USB memory stick to be lost or stolen ? Or will they simply be sold by insiders to criminals ?
Why should anybody trust the untrained, inexperienced Environment Agency with the recruitment and handling and protection of Covert Human Intelligence Sources ?
The Environment Agency investigates suspected environmental crime for the Government. It is among hundreds of public bodies - including the BBC and local authorities - controversially allowed to use spying powers under the Regulation of Investigatory Powers Act (RIPA).
How much of this "suspected environmental crime" investigation duplicates the work of Local Authorities in this area ?
The agency is inspected annually by the Office of Surveillance Commissioners, headed by Sir Christopher Rose, to ensure it is using the powers correctly. Reports from recent inspections show that "fundamental flaws" were discovered in some of its operations. The surveillance commissioner has also repeatedly raised concerns over the proportionality of the Environment Agency's operations.
The reports - marked "restricted" - show that in 2007 the Home Office advised officials that "affixing a magnetic device to a vehicle on the public highway" was "not a criminal offence" and "putting an arm into a wheel arch or under the frame of a vehicle is straining the concept of trespass."
But, Sir Christopher said his view was that "any such deployment on a vehicle or property not owned by the Agency would constitute Property Interference - which of course the Agency was not empowered to do under the Police Act 1997".
Only certain law-enforcement agencies, including the police and security services, are entitled to covertly interfere with private property if they have a warrant.
The Office of Surveillance Commissioners' website lists all of the relevant legislation:
Sir Christopher also found that in some regions, particularly "rural locations", "operatives [were] entering the private land of a suspect without permission in order to carry out surveillance or install a camera" to detect illegal activity.
In 2007 he concluded that "any such entry onto private land was Property Interference" and told the agency to obtain "definitive" guidance on the issue.
Yet in the 2008 inspection, the Commissioner found that nothing had changed, prompting him to advise the agency to "cease" all trespassing by officials. "When I raised this matter with the Chief Prosecutor he was disappointed that trespass was still occurring," Sir Christopher said.
The reports suggested that the agency was considering specifically including evidence gained through trespass and vehicle tracking devices in an attempt to have a court rule on whether it was allowed to continue.
A spokesman for the Environment Agency said: "Last year we sought clarification on the use of vehicle tracking devices from the Office of Surveillance Commissioners, who recommended we obtain legal advice on the issue of interference with property. We have sought legal advice and in the meantime voluntarily suspended use of the devices. We strictly follow guidelines to comply with all regulations."
A spokesman for the Home Office said: "To ensure the appropriate use of RIPA the Home Office has recently completed a public consultation on revised Codes of Practice, and on all public authorities able to use certain techniques relating to RIPA, the ranks at which these techniques can be authorised and the purposes for which they can be used."
Note the weasel words from the Home Office,, who are perfectly well aware that "property interference" comes under the Police Act 1997, and not under RIPA at all.
However the words "some public authorities" in the RIPA Annual Report, implies that the Environment Agency are not the only culprits - who else is involved ?
5.30. Easily available technology has encouraged some public authorities to favour the use of equipment such as tracking devices. Their motives are understandable. However, the use of such devices involves property interference and may only be authorised by an authority empowered by the Police Act 1997 and may only be used for the prevention and detection of 'serious crime'.7 not, as some believe, enabled by RIPA or RIP(S)A.
7Police Act 1997, Section 93(2)(a).
No local or central government public authority, department or quango etc., nor any private sector subcontractors working for these "public authorities", should have any direct access to "intrusive surveillance" or "property interference" or investigative powers,or should recruit or run Covert Human Intelligence Sources whatsoever .
If a fly tipping or toxic waste dumping or tax evasion investigation etc. has got to the point where it is obviously no longer a trivial offence, but one which falls into the serious organised crime category, then the Police and or the Serious Organised Crime Agency should be co-opted into a joint investigative team, and they should be the one dealing with snooping, bugging, tracking etc., and the recruitment and management of Covert Human Intelligence Sources (spies and informants) within such criminal gangs.
RIPA and the Police Act should be amended to require even such investigations to be authorised via a warrant obtained from independent Judge, before any such snooping takes place, and then only for a strictly limited time period.
Merely informing, in secret, the former Judges at the Office of the Surveillance Commissioners is not an adequate safeguard for the public, against officious and over zealous bureaucrats, since the OSC have no legal sanction available to them, to prevent further illegal abuses, has clearly shown.
Will the electorate punish the Labour government for this creeping bureaucratic authoritarianism, which they have enabled and encouraged ?.