A number of people have asked me if our company has a blog about RIPA and covert activity. My answer was always "No, I'm sorry we don't". For a number of reasons I thought it wouldn't work but I still keep getting requests and also a number of questions about different aspects of RIPA or conducting various different covert activities so I thought I'd give it a go and try to help our numerous delegates with the areas that concern them, look at new and emerging areas (social media or online research) and even look at some 'old favourites' which keep coming up (drive by's or use of CCTV). So having said all that, here we go...
I joined law enforcement just as the Police & Criminal Evidence Act was being introduced and I remember the 'old sweats' telling me that 'the job' was finished and no one would get convicted anymore. Actually that wasn't the case and PACE protected people whom were under investigation and also clearly set out powers available to investigators. In fact it gave them a lot of powers that they never previously had. Prior to PACE the stock answer to an uncomfortable question about a power was always "it's common law" or "ways and means act" even though they know it wasn't and they actually didn't have lawful basis for doing it.
Now when I train groups of investigators, no matter where they sit in the law enforcement community or what offences they investigate none of them would even consider trying to circumvent PACE. (I know this because I ask them on every course). In fact some of them look deeply offended that I could even contemplate that they may be tempted to do so. So why do so many people ask me for "ways to get round RIPA"?
I think the first thing we need to think about and get straight is that RIPA is primary legislation. I know that section 80 of RIPA doesn't make it unlawful not to get a RIPA authorisation but it does make it far more challengeable by the defence if you don't and not getting an authorisation is definitely seen as fertile ground to explore by them in court.
Yes, RIPA can be bureaucratic but that's probably because the applications and authorisations aren't constructed properly, (on our RIPA Applicants, Gatekeepers and Authorising Officers we look at the correct way to construct these documents to prevent duplication whilst ensuring the application or authorisation is lawful. I'm still pleased at how amazed people are at the amount of time they can save when completing these forms going forward).
Yes you have to keep updating the Authorising Officer of new subjects and yes you have to submit cancellations but those should all be seen as positives. These stages ensure that, as an investigator, you have not only the protection of a senior manager but also the protection of the law. If you can convince an objective senior manager, possibly a magistrate that the law has been applied correctly then you should feel very secure about the evidence that you've obtained.
On our training courses all of our trainers discuss court cases where investigators have fallen foul of RIPA but this is because the investigators have generally done something wrong, or in legal terms, acted in bad faith. However, we also talk about the many successes that RIPA has helped investigators to achieved, even after these cases have been examined in minute detail by the courts or tribunals. RIPA has even protected investigators whom without the protection of it should have probably been prosecuted for their actions. There aren't many pieces of legislation that I know of which can keep you out of trouble, in fact the normal purpose of law in the criminal arena is exactly the opposite.
Also I hear investigators saying RIPA hasn't kept up to date with technology but I don't agree. I think RIPA is written in such a way that you can make it work for you even in this fast moving technological age. In future blogs we will look at why I believe this to be the case.
So before we start looking at anything specific, let's be clear, I honestly believe that RIPA is a good piece of legalisation that is generally used badly. If we (by we I mean you) use it properly then we (you) will have greater protection for the activities we undertake and more importantly the evidence that we (you) obtain.
I hope you enjoy this and the forthcoming blogs (or at least find them useful) and please let me know if there is anything you want to cover, not only about RIPA but other bits of associated law, tactics or the wider considerations, as I'm really keen to make sure this blog helps you work smarter and if you don't believe what I've put here then put us to the test through getting some up to date training, all of which is backed by our money back guarantee!