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Revealing the malingerer - surveillance of claimants not covered by RIPA
14 May 2008
We have all heard stories of claimants alleging significant
disability, only to be shown on covert video surveillance
undertaking strenuous activities or scoring goals for a local
football team. However, legislative provisions potentially
restrict the powers of public bodies to protect their financial
interests by investigating exaggerating claimants. In particular,
the Human Rights Act 1998 and the Regulation of Investigatory
Powers Act 2000 (RIPA) have required public bodies to put in place
stringent procedures to control operations such as covert
surveillance.
Concerned public authorities, however, should
take some comfort from the much overlooked decision of C –v-
The Police (1) and Secretary of State for the Home Department
(2). That was a decision of the Investigatory Powers
Tribunal in November 2006. The Investigatory Powers Tribunal
attempted to clarify the remit of RIPA and the limits of its
application. In that case, C, a police sergeant who had made
a personal injury claim was video taped in public carrying out
various strenuous activities. C complained that the
provisions of RIPA had not been followed and that, therefore, the
surveillance was unlawful. The Tribunal considered RIPA and
reached the following conclusions:
The main purpose of RIPA is to ensure that the
relevant investigatory powers of public authorities are used
lawfully and compatibly with the European Convention on Human
Rights
- Surveillance by public authorities (or anyone else) is not in
itself unlawful at common law
- The act of putting an ex-employee claimant under covert
surveillance was not directed surveillance as defined by RIPA
- The phrase "directed surveillance" relates to the discharge of
specific public functions where investigatory powers are given, or
to use another phrase, specific core functions
- There is no reason why the performance of ordinary functions,
like the employment of staff, should fall within the RIPA
framework
- The covert surveillance of an ex-employee was not part of the
"core function" of the police and therefore was not governed by
RIPA
Conclusion
The Tribunal drew a distinction between the
exercise of powers during the course of a specific investigation
(eg a police investigation into crime) and the exercise of the
ordinary function of the police authority (in this case defending
its private law rights).
The Tribunal decision was that non core
function surveillance would not be governed by the RIPA regime and
therefore the stringent RIPA requirements do not have to be
followed. However, public bodies are obliged to observe and
apply the Human Rights Act 1998 and in particular, Article 8, the
right to respect for private and family life. The Human Rights Act
will require consideration as to whether the surveillance is
necessary and proportionate to the situation.
Good risk management should dictate that local
authorities have a robust system for ensuring that surveillance
does not breach the Human Rights Act, however, C –v- The
Police confirms that the strict requirements under RIPA need
not be followed for this type of investigation.
RIPA will, however, still apply to specific
investigations within the core functions of all public bodies.
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