Fraud Guide Surveillance

8/13/2019 Fraud Guide Surveillance

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Surveillance

00 Introduction

Introduction1. This section provides comprehensive guidance on surveillance, the

Regulation of Investigatory Powers Act (RIPA) 2000 and the HomeOffice Statutory Code Of Practice (COP) covering the authorisationof covert (directed) surveillance.

2. Directed surveillance requires authorisation in accordance withRIPA 2000 where it is conducted covertly and undertaken for thepurposes of a specific investigation or operation and is likely toresult in the obtaining of private information about a person.decision

3. There is no requirement for an authorisation in accordance withRIPA 2000 where the surveillance undertaken will not obtain privateinformation about a person.

4. Under RIPA, the Department for Work and Pensions (DWP) cannotauthorise intrusive surveillance. For information and definition ofintrusive surveillance, see Intrusivesurveillance.

5. Covert surveillance against DWP employees can only be carried outby Fraud Investigation Service (FIS) as part of an investigation intobenefit-related fraud. Any suggestion that a DWP employee isinvolved in other types of fraud, or wrongdoing and where a SocialSecurity benefit is not involved must be referred to Risk Assurance

Division (RAD).6. Where the proposed surveillance is overt, for example, use of

Closed Circuit Television (CCTV), and it is considered that noprivate information will be obtained, a RIPA authorisation is notrequired. For further details, see ClosedCircuitTV(CCTV).

7. The Surveillance COP provides several reasons why surveillancecan be legitimately used. However, for benefit fraud investigations,the only relevant justification for the use of surveillance is for theprevention or detection of crime. For the purposes of paragraph 5.1of the Surveillance COP, this means the investigation of benefitfraud offences.

8. RIPA recommends that alldirected surveillance is authorised. InDWP, this is mandatory.

9. Note: Local Authorities (LAs) in Scotland have to abide by theRegulation of Investigatory Powers (Scotland) Act (RIP(S)A) 2000.RIP(S)A has its own Covert Surveillance: Code of Practice.

10. Surveillance should not be undertaken unless it is necessary andproportionate to the alleged offence and has been properlyauthorised. This means that all other avenues of obtaining theinformation must be considered first.

11. Paragraph 2.24 of the Surveillance COP states that general

observation does not usually require authorisation under RIPA. It is

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important to understand that general observation in this context isnot systematic surveillance as described in this manual.

12. Observation of a location for the purposes of conducting a pre-surveillance check or on an employers premises to ascertainnumbers of employees to inform how best to conduct a fraud drive

using s109B or109C powers, do not require RIPA authorisation.13. Investigators must not undertake surveillance unless they have

completed the relevant professionalism in Security (PINS) learning.

Objectives of surveillance

14. Surveillance operations can have many objectives:

the purpose of surveillance is to prevent or detect a crime includingbenefit offences

surveillance may involve: obtaining detailed information about a subjects activities

checking on the reliability of information received obtaining information to use later in an interview getting a picture of a subjects movements or work pattern obtaining evidence for use in court establishing a subjects whereabouts or domicile.

01 Definitions

Surveillance

1. Section 48(2) of Regulation of Investigatory Powers Act (RIPA) 2000subject to subsection (3) sets out the following interpretation of

surveillance:a) monitoring, observing or listening to persons, their movements, theirconversations or their other activities or communications;b) recording anything monitored, observed or listened to in the course ofsurveillance; andc) surveillance by or with the assistance of a surveillance device.

2. Subsection (3) states:

References in this Part to surveillance do not include references to:a).any conduct of a covert human intelligence source for obtaining or

recording (whether or not using a surveillance device) any informationwhich is disclosed in the presence of the source;b).the use of a covert human intelligence source for obtaining orrecording information; orc).any such entry on or interference with property or with wirelesstelegraphy as would be unlawful unless authorised under i).Section 5 of the Intelligence Services Act 1994 (warrants for theintelligence services); orii).Part III of the Police Act 1997 (powers of the police and of customsofficers).



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3. For Local Authorities (LAs) in Scotland, the equivalent part of Regulation ofInvestigatory Powers (Scotland) Act (RIP(S)A) 2000 is Section 31(2).

Directed Surveillance

4. Directed surveillance is defined in paragraph 2.2 of the Surveillance COP

with reference to section 26(2) of RIPA as directed if the following are alltrue:

it is covert, but not intrusive surveillance;

it is conducted for the purposes of a specific investigation or operation;

it is likely to result in the obtaining of private informationabout a person(whether or not one specifically identified for the purposes of theinvestigation or operation);

it is conducted otherwise than by way of an immediate response toevents or circumstances the nature of which is such that it would not bereasonably practicable for an authorisationunder Part II of the 2000 Act

to be sought5. Thus, the planned covert surveillance of a specific person, where notintrusive, would constitute directed surveillance if such surveillance is likelyto result in the obtaining of private informationabout that, or any otherperson.

Private Information

6. The 2000 Act states that private informationincludes any informationrelating to a persons private or family life. Privateinformation should betaken generally to include any aspect of a persons private or personalrelationship with others, including family and professional or business

relationships.

7. Whilst a person may have a reduced expectation of privacy when in apublic place, covert surveillance of that persons activities in public maystill result in the obtaining of private information. This is likely to be thecase where that person has a reasonable expectation of privacy eventhough acting in public and where a record is being made by a publicauthorityof that persons activities for future consideration or analysis.

Example:

Two people holding a conversation on the street or in a bus may have a

reasonable expectation of privacy over the contents of that conversation, eventhough they are associating in public. The contents of such a conversationshould therefore still be considered as private information. A directedsurveillance authorisation would therefore be appropriate for a public authorityto record or listen to the conversation as part of a specific investigation or

operation.

8. Private life considerations are particularly likely to arise if several recordsare to be analysed together in order to establish, for example, a pattern ofbehaviour, or if one or more pieces of information (whether or not availablein the public domain) are covertly (or in some cases overtly) obtained forthe purpose of making a permanent record about a person or for

subsequent data processing to generate further information. In such



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circumstances, the totality of information gleaned may constitute privateinformationeven if individual records do not. Where such conduct includessurveillance, a directed surveillance authorisationmay be consideredappropriate.

Example:

Officers of a local authority wish to drive past a caf for the purposes ofobtaining a photograph of the exterior. Reconnaissance of this nature is notlikely to require a directed surveillance authorisation as no private informationabout any person is likely to be obtained or recorded. However, if the authoritywished to conduct a similar exercise, for example to establish a pattern ofoccupancy of the premises by any person, the accumulation of information islikely to result in the obtaining of private information about that person and adirected surveillance authorisation should be considered.9. Private informationmay include personal data, such as names, telephone

numbers and address details. Where such information is acquired by

means of covert surveillance of a person having a reasonable expectationof privacy, a directed surveillance authorisationis appropriate11.

Example:

A surveillance officer intends to record a specific person providing their nameand telephone number to a shop assistant, in order to confirm their identity, aspart of a criminal investigation. Although the person has disclosed thesedetails in a public place, there is nevertheless a reasonable expectation thatthe details are not being recorded separately for another purpose. A directedsurveillance authorisation should therefore be sought.

Intrusive surveillance10. Intrusive surveillance is covert surveillance that is carried out in relation to

anything taking place on residential premises or in any private vehicle (andinvolves the presence of an individual on the premises or in the vehicle oris carried out by means of a surveillance device.

11. The definition of surveillance as intrusive relates to the location of thesurveillance, and not any other consideration of the nature of theinformation that is expected to be obtained. In addition, surveillance underthe ambit of the 2010 Order is to be treated as intrusive surveillance.Accordingly, it is not necessary to consider whether or not intrusivesurveillance is likely to result in the obtaining of private information.

Residential Premises

12. For the purposes of the 2000 Act, residential premises are considered tobe so much of any premises as is for the time being occupied or used byany person, however temporarily, for residential purposes or otherwise asliving accommodation. This specifically includes hotel or prisonaccommodation that is so occupied or used.

13. However, common areas (such as hotel dining areas) to which a personhas access in connection with their use or occupation of accommodationare specifically excluded.



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14. The 2000 Act further states that the concept of premises should be takento include any place whatsoever, including any vehicle or moveablestructure, whether or not occupied as land.

Examples of Residential Premises

15. Examples of residential premises would therefore include: a rented flat currently occupied for residential purposes

a prison cell (or police cell serving as temporary prison accommodation)

a hotel bedroom or suite

private vehicles.

Examples of Premises that are not Residential

16. Examples of premises which would not be regarded as residential wouldinclude:

a communal stairway in a block of flats (unless known to be used as a

temporary place of abode by, for example, a homeless person); a prison canteen or police interview room;

a hotel reception area or dining room;

the front garden or driveway of premises readily visible to the public;

residential premises occupied by a public authority for non-residentialpurposes, for example trading standards house of horrors situations orundercover operational premises.

Private Vehicles

17. A private vehicle is defined in the 2000 Act as any vehicle, includingvessels, aircraft or hovercraft, which is used primarily for the privatepurposes of the person who owns it or a person otherwise having the rightto use it. This would include, for example, a company car, owned by aleasing company and used for business and pleasure by the employee ofa company.

Places for Legal Consul tation

18. The 2010 Order provides that directed surveillance that is carried out inrelation to anything taking place on so much of any premises specified inArticle 3(2) of the Order as is, at any time during the surveillance, used forthe purpose of legal consultations shall be treated for the purposes of Part

II of the 2000 Act as intrusive surveillance. The premises identified inarticle 3(2) are:

a. any place in which persons who are serving sentences ofimprisonment or detention, remanded in custody or committed in custodyfor trial or sentence may be detained;b. any place in which persons may be detained under paragraph 16(1),(1A) or (2) of Schedule 2 or paragraph 2(2) or (3) of Schedule 3 to theImmigration Act 1971 or section 36(1) of the UK Border Act 2007;c. police stations;d. hospitals where high security psychiatric services are provided;e. the place of business of any professional legal adviser; and



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f. any place used for the sittings and business of any court, tribunal,inquest or inquiry.

Drive-Bys

19. Drive-bys are used prior to obtaining a surveillance authorisation and are

not classed as directed surveillance. Drive-bys should be kept to aminimum and will normally be conducted in order to identify a vehicle(s).They do not require authorisation under RIPA.

20. Sightings of vehicles obtained during drive-bys can be used to counttowards the sighting requirements for Driver Vehicle Licensing Agency(DVLA) enquiries. Alternatively they may be used to establish/identify anemployer in cases involving the use of a commercial vehicle.

21. The Fraud Investigator (FI) should record in their notebook and onFRAIMS the date and time of the drive-by and details of any vehicle(s)sighted.

22. If drive-bys form part of a systematic approach they will require RIPAauthorisation. This applies to continuous drive-bys conducted over aperiod of time and used to build up a pattern of when a vehicle may beparked at an identified location.

Unforeseen circumstances

23. Directed surveillance does not include covert surveillance carried out byway of an immediate response to events or circumstances which, by theirvery nature, could not have been foreseen.

24. If an investigator suspects that they have witnessed an offence the detailsshould be recorded as soon as possible and reported as a referral in the

normal way. If the investigator wishes to conduct immediate observations,urgent oral authorisation must be sought.

25. Further information can be found in Urgent Authorisations.

Joint investigations with the Local Authority

26. In England and Wales where Department for Work and Pensions (DWP)and Local Authority (LA) investigators are carrying out a joint operationinvolving surveillance only one authorisation by the lead organisation isrequired under Regulation of Investigatory Powers Act (RIPA).

27. If the LA in England and Wales is leading the surveillance operation, thesurveillance authorisation must be approved by a magistrate by the

granting of an order under section 32A of RIPA (inserted by Section 38 ofthe Freedom of Information Act 2012).

28. In Scotland surveillance carried out by DWP will be authorised underRIPA. Surveillance carried out by Local Authorities will be authorisedunder Regulation of Investigatory Powers (Scotland) (RIP(S)A) 2000.Separate authorisations under RIPA and RIP(S)A will not be required fromDWP and the LA respectively when joint operations take place. The leadauthority will authorise the surveillance activities using the legislationrelevant to that authority.

29. The provisions in section 38 of the Freedom of Information Act 2012 do notapply to LAs using RIP(S)A in Scotland. This means that surveillanceauthorisation for LAs in Scotland does not require judicial approval.



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Intrusive surveillance

30. Department for Work and Pensions (DWP)/Local Authority (LA)Authorising Officers cannot authorise intrusive surveillance underRegulation of Investigatory Powers Act (RIPA) 2000/Regulation ofInvestigatory Powers (Scotland) Act (RIP(S)A) 2000.

31. Intrusive surveillance is covert surveillance that:

is carried out in relation to anything taking place on any residentialpremises or in any private vehicle

involves the presence of an individual: on the premises in the vehicle is carried out by means of a surveillance device.

32. The Individual refers to the investigator or Covert Human IntelligenceSources (CHIS).

Necessity and propor tionality33. Obtaining an authorisation under Regulation of Investigatory Powers Act

(RIPA) 2000/Regulation of Investigatory Powers (Scotland) (RIP(S)A)2000 will only ensure that there is a justifiable interference with anindividual's rights under Article 8 of the European Convention on HumanRights if it is necessary and proportionatefor these activities to takeplace. (Paragraphs 3.3 to 3.7 Surveillance COP refers).

34. In order to demonstrate necessity there must be an identifiable offence toprevent or detect before an authorisation can be granted. It is also usefulto detail the seriousness/duration of an offence, including the implicationsif the offence was to continue. It is important that the offence under

investigation is clearly described. For example, failing to report a changeof circumstances, in that it is alleged that a partner is living in thehousehold

35. If the activities are necessary, the Authorising Officer must believe that theactivities are proportionate to what is sought to be achieved by carryingthem out. This involves balancing the intrusiveness of the activity on thetarget(s) against the need for the activity in investigative and operationalterms.

36. The activity will not be proportionate if it is excessive in the circumstancesof the case or if the information which is sought could reasonably beobtained by other less intrusive means. All such activity should be carefullymanaged to meet the objective in question and must not be arbitrary orunfair. It is important that RIPA applications deal with proportionality byshowing that the methods to be employed are proportionate to theexpected result rather than describing the surveillance operation.

37. In order to demonstrate that the activities to be authorised areproportionate the application must:

balance the size and scope of the operation against the gravity andextent of the perceived offence

show that the activity is an appropriate use of the legislation and theonly reasonable way, having considered all others, of obtaining the

necessary result



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provide evidence of what other methods had been considered and whythey would not achieve the necessary result

explain how and why the methods to be adopted will cause the leastpossible intrusion on the target and others.

38. In granting the authorisation the Authorising Officer must set out in his own

words why he is satisfied that: the use of surveillance is necessary for the purpose of preventing or

detecting crime

the activity to be carried out is not excessive

the information to be obtained cannot reasonably be obtained by othermeans.

39. Surveillance can only be authorised for the statutory period of threemonths. For example:

request for surveillance is authorised on 01/04/2009. The authorisationwill expire at 23.59 on 30/06/2009.

40. In granting the authorisation the Authorising Officer should not applyrestrictions on timing and length of each individual period of surveillanceas a means of addressing proportionality. If there are concerns relating tofrequency or duration of surveillance they should be addressed byincluding regular reviews within the authorisation procedure.

Collateral intrusion

41. This means surveillance, which indirectly intrudes on the privacy ofindividuals who are not the direct subject(s) of surveillance, for example,where you observe one or more innocent bystanders, including children ofthe individuals subject to surveillance. The potential risk of intrusion into

the privacy of persons other than the specified subject of surveillance mustbe considered.

42. Measures should be taken, wherever practicable, to avoid or minimiseunnecessary intrusion into the lives of those not directly connected with theinvestigation or operation. A RIP1 must include an assessment of the riskof any collateral intrusion and why it is unavoidable. The AuthorisingOfficer must take this into account, when considering the proportionality ofthe surveillance.

43. Authorising Officers need to take into account, where known, particularsensitivities in the local community where the surveillance is taking placeor similar activities being undertaken by other law enforcement agencies

that could impact on the deployment of surveillance.

Confidential information

44. Confidential information consists of matters subject to legal privilege,confidential personal information or confidential journalistic information. Incases where through the use of surveillance it is likely that confidentialinformation will be acquired, the use of surveillance is subject to a higherlevel of authorisation.

45. Annex A to The Surveillance Code Of Practice (Surveillance COP) sets therequired level of authorisation for:



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Local Authorities (LAs) as The Head of Paid Services(England andWales)/ Chief Executive (Scotland) or (in their absence) a Chief Officer

Department for Work and Pensions (DWP) as the Chief Executive.

Matters subject to legal privilege

46. Matters subject to legal privilege are described in section 98 of the PoliceAct 1997 (England and Wales). In Scotland, the relevant description iscontained in section 33 of the Criminal Law (Consolidation) (Scotland) Act1995. For Northern Ireland, Article 12 of the Police and Criminal Evidence(Northern Ireland) Order 1989 contains the relevant description.

47. In England and Wales legal privilege includes both oral and writtencommunications between a professional legal adviser and their client orany person representing a client, when the purpose of the communicationis to provide legal advice where legal proceedings may occur.Communications and items held with the intention of furthering a criminalpurpose are not matters subject to legal privilege.

48. In Scotland, legal privilege includes both oral and written communicationbetween a professional legal adviser and their client. It also includescommunication by a person (whether or not with a professional legaladviser) that is done in contemplation of legal proceedings. In both casesthe communication must be of a kind that would be exempt from disclosurein court proceedings.

49. Legally privileged communications will lose their protection if there isevidence, for example, that the professional adviser is intending to hold oruse them for a criminal purpose. Privilege is not lost if a professional legaladviser is properly advising a person who is suspected of having

committed a criminal offence. The concept of legal privilege shall apply tothe provision of professional legal advice by any agency or organisation.

Confidential personal information

50. Confidential personal information is information held in confidenceconcerning an individual (whether living or dead) who can be identifiedfrom it, and relating:

to their physical or mental health or

to spiritual counselling or other assistance given or to be given, and

to information which a person has acquired or created in the course ofany trade, business, profession or other occupation, or for the purposes

of any paid or unpaid office.51. Confidential personal information might, for example, include consultations

between a health professional or a professional counsellor and a patient orclient, or information from a patient's medical records.

52. It includes both oral and written information and also communications as aresult of which personal information is acquired or created. Information isheld in confidence if:

it is held subject to an express or implied undertaking to hold it inconfidence or

it is subject to a restriction on disclosure or an obligation of secrecy

contained in existing or future legislation.



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Confidential journalistic information

53. Confidential journalistic information includes information acquired orcreated for the purposes of journalism and held subject to an undertakingto hold it in confidence.

54. In cases where the likely consequence of the surveillance would be for any

person to acquire confidential information, the surveillance will only beauthorised in connection with serious crime. This is unlikely to apply in themajority of Fraud Investigation Service (FIS) and LA cases. However, itremains a possibility and appropriate authorisation must be obtained.

55. If an investigation/operation might lead to the acquisition of confidentialinformation contact FIS Business Support for details of the requiredauthorisation.

Authorising Officer

56. In Department for Work and Pensions (DWP), only an officer of the

appropriate grade, not lower than Band E, who has received the relevantlearning Professionalism In Security (PINS) 23, has the authority toauthorise directed surveillance.

57. In Local Authorities (LAs), Regulation of Investigatory Powers Act (RIPA)Statutory Instrument Order 2010 (No.521) sets the prescription of officers,rank and positions as:

Assistant Chief Officer,

Assistant Head of Service,

Service Manager or equivalent.58. For Scottish LAs, it is RIP(S)A SSI 2000 (No.343) and the prescription of

officers as:

Assistant Head of Service, Investigation Manager.They should also have completed PINS 23 or its equivalent.

59. It is not within the spirit of the Act to allow a lower graded officer to betemporarily promoted for the specific purpose of authorisation, althoughprovision should be made within procedures for authorisations to becovered in case of absences and leave of the Unit Fraud Investigator (UFI)including temporary promotion where appropriate.

60. Every authorisation should show the rank of the person giving it.Designated Deputies must identify themselves as such and say why theyare giving the authorisation.

Liability

61. The Human Rights Act 1998 protects an individuals rights to privacy. Ifthere has been an intrusion into an individuals privacy investigators willneed to demonstrate that it was necessary for the prevention and detectionof crime. The demonstration of conformance with the Surveillance Code OfPractice (Surveillance COP) and a thorough risk assessment leading tothe surveillance should demonstrate that the use of surveillance wasreasonable and had not been sought or authorised irregularly.

62. Department for Work and Pensions (DWP) and Local Authorities (LAs) are

vicariously liable if there has been a breach of the guidelines, for example,



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the authority is responsible for the acts of its employees and tocompensate individuals if it is found at fault and the aggrieved persontakes civil action.

63. It is the responsibility of the Authorising Officers to demonstrate, viarecords, that authorisation, granted under Regulation of Investigatory

Powers Act (RIPA) 2000/Regulation of Investigatory Powers (Scotland) Act(RIP(S)A) 2000, was given individual consideration, and the actionauthorised was necessary & proportionate, including reviews andrenewals.

64. Failure to obtain proper authorisation for surveillance could result in thefollowing:

any member of the public taking civil action against the DWP/LA (Theindividual working for the DWP/LA would not be personally liable)

the surveillance evidence may not be used to prove the case and thecase might not be accepted for prosecution

if the lack of authorisation did not become apparent until the case wasin court, the case could be dismissed, the Department/LA criticised andembarrassed and the officer admonished by the Judge, Magistrate orSheriff

criticism from the Surveillance Commissioner and even removal fromthe list of public authorities allowed to undertake directed surveillance

the individual could be the subject of disciplinary or inefficiency action orbe required to undertake remedial learning, dependant on thecircumstances of the case

the officer might have to attend an Investigatory Powers Tribunal inaccordance with Section 65 of RIPA to justify their actions.

02 Private Premises

Directed surveillance from or within private premises

1. The procedures outlined in Applying for Directed Surveillance applies tomaking applications for surveillance from within private premises.

2. The use of private premises to conduct directed surveillance activity canonly take place with the consent of the owner and/or occupier and mustnot involve trespass on or interference with property, see Definitions Private Premises

3. It will usually be from inside private premises but could also apply toparking an observation vehicle on private premises.ExampleA person is suspected to be working in a caf. At the pre-surveillancecheck visit, the investigator identifies the public house car park oppositethe caf as the most suitable for parking an observation vehicle. The carpark is for Patrons use only. In these circumstances, the car park isclassed as private premises and consent of the owner must be obtained.

4. Before authorisation for such surveillance is sought, other means ofobtaining the necessary information must be considered.

5. It is essential that the investigator involved in the investigation visits the

premises prior to applying for surveillance authorisation, not only to obtain



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consent to use the premises but also to explain the possibleconsequences of disclosure of the location of static surveillance.

6. The investigator must be satisfied that the owner and/or occupierunderstand the use that will be made of the premises and make it clearthat there is no compulsion to make the premises available. The

Investigator must also explain that the premises, owner and/or occupiermight be identified in subsequent court proceedings. Details of thisdiscussion must be recorded in the investigators official notebook andmarked sensitive. (In England and Wales - Section 6 of the CriminalProcedures and Investigation Act 1996 Code Of Practice refers).

Disclosure to the Court of the location used

England and Wales

7. The general rule of law is that investigators should not be required todisclose the location of their observation point, except to prevent amiscarriage of justice or to establish the innocence of the accused.

8. In the judgement Regina v Johnson, the Court of Appeal provided criteriawhich must be adopted if premises used for observation purposes are notto be disclosed in open court.

9. The judgement requires that the Authorising Officer responsible for therelevant RIP1 form must be able to testify that immediately prior to trial:

they visited the premises used for the surveillance

they obtained and recorded the views of the owner and/or occupier inrespect of the use made of the premises and the possibleconsequences of disclosure which could lead to identification of the

premises and occupiers.10. Such views must be recorded in the investigators official notebook and therecord must be marked sensitive. It is not appropriate for a statement to betaken as this may have to be revealed to the defence and the objective isnot to disclose the identity of the private premises.

11. This information is necessary to allow the prosecution to make a detailedand evidence-based argument requesting that identification of premises isnot disclosed.

12. The ultimate decision on whether to disclose the location of the premisesis for the trial judge. They will direct disclosure if it is considered that theinterest of justice for the accused outweighs the public interest in

preserving confidentiality.

Scotland

13. In Scotland the question of disclosure is one for the Procurator Fiscal.

Authorisat ion for surveillance

14. Where a request for surveillance is made the Investigator must show insection 3 of the RIP1 application form that they intend using privatepremises for surveillance and have obtained the consent of theowner/occupier.



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15. Where a request for surveillance is made, the Authorising Officer mustconfirm that the applicant has previously visited the owner and/or occupierand the outcome of the visit is recorded in the investigators officialnotebook.

16. The Authorising Officer must be satisfied that surveillance from private

premises is necessary and proportionate and that the necessary riskassessment, including collateral intrusion, has been properly considered.For more information, see Definitions - Collateral Intrusion.

Surveillance into private premises From a public place

17. Surveillance can be performed into private premises that are being usedfor work activities such as a building site or a garage providing thatsurveillance can be performed from a point at which the public has access.Surveillance must not involve trespass or interference with property.

18. If surveillance has to be performed from private premises either intoprivate premises adjacent to the target site or from within the privatepremises themselves then permission must be sought from the owners ofthe premises, see Directed surveillance from or within private premises.

19. Surveillance can be performed from a public highway such as lookingthrough an open or un-obscured window to observe the suspects activitiesas long as no surveillance devices are used e.g. binoculars. Use of such adevice would be considered to be intrusive surveillance.Example:A referral is received that a claimant is working as a painter and decoratorand is followed to a private address. The investigator parked on the roadoutside the house can see into the living room and observes the claimant

working. As no surveillance device is used this is not intrusive surveillancebut the activity would have to be covered as part of a directed surveillanceauthorisation.

Private premises Compliance employer cases

20. Surveillance is unnecessary if an employer is considered reliable, as theinvestigator would normally approach the employer for wage details andhours of employment for the individual concerned. However, if theemployer is not reliable, for example, non-compliant, and a visit isunlikely to produce quality evidence, the alternative may be to conductsurveillance.

21. The legal view is that an employer's premises, which are visible from apublic highway (for example, an open garage) will probably fall into thedefinition of Directed Surveillance. To this extent, consent from theemployer is not required but surveillance must not involve trespass orinterference with the property.

22. The application for surveillance must record if the employer is suspectedof being collusive and what evidence this is based on. It must alsoconfirm that the premises are visible from a public place and detail thelocation from which observations will be made.



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03 Surveillance Activity

Methods of surveillance

1. There are several methods of organising surveillance operations and the

choice of method will depend upon the circumstances: static point surveillance this is where observations are conducted from

a building or a stationary vehicle

mobile surveillance this involves using vehicles, excluding bicycles

foot surveillance for example with a team of three persons

combined surveillance this will include all or combinations of the otherthree types of surveillance.

2. It is the policy of the Fraud Investigation Service (FIS) that bicycles mustnot be used under any circumstances when carrying out surveillance.

3. Lone officers can carry out surveillance activities but must not engage incommunications while undertaking mobile surveillance. In Scotland two

officers would be required to carry out surveillance for purposes ofcorroboration.

4. If communication is required during the course of mobile surveillance eachvehicle involved must contain at least two officers one of whom, apassenger, must be the designated communications officer.

Planning and preparation

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6. If possible, park so as not to impede any local residents.7. It is advisable to inform the local police, or other interested parties, for

example; Local Authority (LA) counterparts, in advance of a surveillanceoperation in order to avoid being approached and therefore compromised

during the operation.8. Where surveillance is to be carried out the surveillance team can only

achieve its objectives when they have been clearly defined. In the case ofR v Sutherland the police carried out surveillance that exceeded theRegulation of Investigatory Powers Act (RIPA) authorisation and wastherefore unauthorised.

9. In order to ensure that Fraud Investigation Service (FIS) investigators donot carry out unauthorised surveillance a briefing must be held where twoor more officers are involved in the surveillance prior to commencement ofthe surveillance activity. The briefing must cover the following:



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ensure all those involved in the operation understand exactly whatactivity has been authorised to avoid unauthorised surveillance takingplace

show the objective of the intended activity

establish the length of the operation

define the roles and personnel involved check equipment and ensure all those taking part understand the

capability of the equipment and any restrictions on its use e.g. ensurethat cameras are not used to capture images from inside a housewhich would constitute intrusive surveillance

appoint a loggist where appropriate and emphasise the need for fullcontemporaneous observation notes, which must be kept secure at alltimes, see Keeping Record

give details of breaks, shifts etc

consider contingency plans in the event of the operation being

compromised, loss of subject, additional subjects define emergency procedures in the event of illness, road traffic

accident etcetera.10. Regular debriefing sessions should be held to discuss progress and

decide the direction of the operation.

Office of Surveillance Commissioners

11. Inspections of the surveillance activities of fraud teams are performed bythe Inspectors of the Office of Surveillance Commissioners (OSC).

12. The purpose of an inspection is to confirm that counter fraud activityundertaken by investigators complies with and is within the spirit of current

Human Rights and Regulation of Investigatory Powers Act(RIPA)/Regulation of Investigatory Powers (Scotland) Act (RIP(S)A)legislation.

13. The Inspectors within the OSC may visit and conductinterviews/discussions with Authorising Officers and investigators. Theywill check surveillance records and analyse policies and training.

14. The OSC will report their findings direct to the Chief SurveillanceCommissioner, Local Authority (LA) Chief Executive, and Department forWork and Pensions (DWP) Head of Fraud Investigation Service.

15. If the OSC find failings that are not addressed then ultimately the ChiefSurveillance Commissioner might report the public authority to the PrimeMinister or First Minister for Scotland with a recommendation to withdrawthe authority to carry out surveillance.

16. OSC Procedures and Guidance issued by the Chief SurveillanceCommissioner explain the role of OSC and how Commissioners carry outtheir statutory functions.

17. For more information on the role of the OSC and how Commissionerscarry out their statutory functions, see the OSC website.



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Closer working and Surveillance

Local Authorities

18. In England and Wales, a DWP Authorising Officer can grant a directedsurveillance authorisation to cover both Department for Work and

Pensions (DWP) and Local Authority (LA) investigators involved in a jointinvestigation as both authorities are covered under Section 30 ofRegulation of Investigatory Powers Act (RIPA) 2000 where DWP areleading the surveillance operation.

19. In England and Wales where the LA is leading the surveillance operation,an order under section 32A of RIPA (inserted by Section 38 of theFreedom of Information Act 2012) approving the authorisation must beobtained from a magistrate.

20. The nominated lead investigator will complete the application, including thenames, where known, and organisation of all investigators likely to beinvolved in the surveillance. The Authorising Officer from the leadorganisation must make the decision and retain records as described inprevious paragraphs.

21. To ensure that the Authorising Officer is aware of the full facts of the case,the applicant must record the following information in section 3 of formRIP1:

that the request for surveillance is part of a joint investigation

include how many of the officers to be deployed at any one time areinvestigators from the LA or DWP and

where known, name the investigators involved.22. Where joint surveillance is authorised by one organisation, that is the lead

organisation it is good practice for the investigation officer/manager of theother organisation to advise their Authorising Officer of the surveillanceactivity. This advice is given so that each Authorising Officer is aware of allsurveillance activity being undertaken by their investigators, regardless ofwhich organisation authorised the activity.

23. Exceptionally, one organisation may provide all of the investigators likely tobe involved in the joint investigations surveillance activity. Where thisoccurs the application for and the authorisation of surveillance will bemade by the organisation that provides all of the investigators.

24. In Scotland, the Scottish LAs are not included in Section 30 of RIPA 2000but are included under Section 8 of RIP(S)A 2000. However, in joint

working cases between DWP and LA in Scotland where officers from boththe DWP and LA are planning to perform surveillance together as a team,separate authorisations will not be needed. Whichever party takes the leadwill authorise the surveillance activity using RIPA or RIP(S)A asappropriate covering the terms of which both parties will operate.

25. The provisions in section 38 of the Freedom of Information Act 2012 doesnot apply to RIP(S)A. This means that LAs in Scotland where the LA leadsin the surveillance operation are not required to apply for judicial approval.

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Other Government Departments

26. Investigators participate in cross government working initiatives withcolleagues from the Her Majestys Revenue & Customs (HMRC) workingin co-located teams across the country.

27. Investigators undertaking surveillance activity as part of cross government

working do not need to be authorised by their own organisationsAuthorising Officer. HMRC Authorising Officers can only authoriseapplications from their own officers, but they can allow other bodiesofficers to conduct surveillance under that authorisation.

28. The investigator will complete form RIP1, which must be countersigned bythe appropriate manager and passed to their own organisationsAuthorising Officer for consideration.

29. The appointed manager will, in effect, take over the role of the Team FraudInvestigator (TFI) for the purposes of the surveillance instructions. Thisinvolves countersigning RIP applications, reviews and changes ofcircumstances and cancellations.

30. In situations where there is no DWP benefit, including those administeredby LAs Housing Benefit/Council Tax Benefit (HB/CTB), involved in theinvestigation, DWP/LA Authorising Officers cannot authorise any of theirofficers to perform surveillance.

Complaints

31. Regulation of Investigatory Powers Act (RIPA)/Regulation of InvestigatoryPowers (Scotland) Act (RIP(S)A) 2000 establishes an independentTribunal. This Tribunal will be made up of senior members of the judiciaryand the legal profession and is independent of the Government. The

Tribunal has full powers to investigate and decide any case within itsjurisdiction.

32. The Tribunal can consider complaints about any conduct, which a personbelieves to have been carried out in relation to them by certain PublicAuthorities such as Department for Work and Pensions (DWP) or LocalAuthorities (LAs) in the circumstances set out below:

the interception of communications by post or telecommunications

surveillance which has resulted, or is likely to result, in privateinformation being obtained

covert human intelligence which has been or is being used in relation toa person, for example, the use of a personal relationship for thepurpose of getting information without that person knowing about it

any entry or interference with property or interference with wirelesstelegraphy.33. Persons wishing to make a complaint in the above circumstances

can obtain details of the complaints procedure together with therelevant complaint form from the following address:

Investigatory Powers TribunalPO Box 33220London SW1H 9ZQTel: 020 7273 4514



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04 Evidence Obtained

Recording surveillance activity

1. Courts always consider the reliability of evidence. All evidence must

therefore be correctly obtained and it must be clear that at no time has theevidence been tampered with. There should be a clear audit trail to showhow the evidence was obtained and subsequently handled until the day itis produced in court this is called the continuity of evidence.

2. The taking of original notes is an essential part of evidence gathering.They may have to be produced in Court or referred to by the person longafter they were made.

3. Surveillance logs and official notebooks (N1) constitute original notes ofevidence and as far as practicable it is essential that they are preparedand preserved strictly in accordance with the rules of evidence. Each entrymust follow consecutively with no spaces left and any items deleted must

be initialed.4. When recording information in the surveillance log, the 24-hour clock must

be used at all times.5. No erasure or obliteration on notes is permissible at any time and once an

entry in a surveillance log has been signed, it cannot be altered in anyway. Any corrections made before sign off are to be initialed.

6. The pages of the surveillance log must be numbered. A page-numberedbook should be used for this purpose. No pages may be removed. At theconclusion of the operation, the surveillance log should be stored securelyfor future production as required.

7. Unnecessary spaces must be avoided between words or at the end of

lines. Unused spaces should be struck out and, if a space is left afterrecording, a line drawn to the end and initialed.

8. If a mistake is identified, it is to be struck out with a single line and initialedby the officer who transmitted the information. They must also explain inwriting, at the end of the log, why the entry has been deleted or changed.

9. The role of the loggist is to accurately record events as they aretransmitted or reported to them and keep the log secure during theoperation. It is the lead investigators responsibility to ensure thesurveillance log is completed.

10. At the commencement of the surveillance, the loggist will be responsiblefor completing details of the officers employed on the operation on a daily

basis. These details will be recorded on the opening page.11. The loggist will record the date, the time, their name and the fact that they

are the loggist. On being relieved from this duty, regardless of the duration,the loggist will sign off adopting the same procedures as when signing on.When it is not practicable to conform strictly to these procedures, suchfacts should be recorded, as soon as possible.

12. The person who witnesses a particular event will initial alongside the entrywhere their name appears at the first available opportunity. They must alsosign and date the surveillance log at the conclusion of the notes. Where itis not possible to communicate with the loggist, the person witnessingmust record details, in writing, in the officers notebook, of the event at thetime or as soon as practicable.



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13. Where two or more persons are present at an occurrence and where thenotes have been made by only one person in their notebook, it isacceptable for these notes to be used by another person when givingevidence, provided the person who has not written the notes reads themas soon as possible after they are made, accepts that they are accurate,

and signs and dates them. For further details, see Official Notebook.14. An officer may need to record details in their personal log for example

where it is not possible to transmit information to the loggist. The existenceof a personal log entry must be notified to the loggist as soon as possible.The information from the personal log must be entered in the main body ofthe log before the conclusion of the debrief. This information must benoted as supplementary entries A, B, C in sequence. It is essential that theentries in the personal log and the main log are the same.

15. The names of all officers present at the debrief must be noted togetherwith the date, time and location. The names of any participating officer notpresent must be listed along with reasons why. At the conclusion of the

debrief, all officers present must sign the log. Those not present must viewthe log and sign any relevant entries as soon as is possible.

16. The surveillance log should be available for production, if requested by theCourt or Counsel, who may wish to examine them. Copies of the notesmust not be taken into Court; the original must be used in every case. If itshould be necessary to make an original note on a loose piece of paperand subsequently copy it into the surveillance log, the original note mustbe carefully preserved for production if required.

Radio communications

17. Under no circumstances should Fraud Investigation Service (FIS) transmitinformation over the Airwave Service network that is classified aboveRestricted, see Appendix B in the Radio Code of Practice.

18. Investigators should use short clear messages. If any person other thanthe officer having primary visual contact with the subject wishes to pass amessage they must first ask permission. Strict radio discipline should beobserved. All investigators should ensure they are familiar with:

Glossary, and

Identity (ID) Codes.19. Each time it changes, it is imperative that the speed/direction of the

subject is passed to the investigators following. It is advisable and

of assistance to the convoy, if the eyeball gives roadsigns/identifiable places as the subject passes them. Thosefollowing can then confirm the route and judge their distance fromthe subject.

Photographic evidence

20. Both analogue and digital video, or stills, photography obtained from asurveillance operation may be used as evidence in criminal proceedings.In order to prove that the video/photographic equipment is reliable, strictprocedures relating to the use of such machinery must be adhered to.When using either an analogue or digital camera, video recorder orcamcorder, it is essential that the use of the equipment is meticulously



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recorded so that the integrity and authenticity of the recording is placedbeyond reasonable doubt.

21. When investigators gather photographic and video evidence, in anyformat, they should also obtain a chain of witness statements showingevery action that was taken in relation to each piece of evidence. This

must include from when they sign for any piece of equipment, includingfilm, memory cards, Digital Versatile Discs (DVDs), Compact Discs (CDs),videotapes, etc with an equipment officer, if appropriate, through to all thestages of the continuity of the production of evidence.

22. The use of equipment logs is recommended at all times to prove theintegrity of the evidence gathered and it should be borne in mind that theequipment logs will need to form part of the unused material schedules inany disclosure as appropriate.

23. Where practicable, all equipment should be signed out daily before thecommencement of operations and signed back in daily after theconclusion. Where it is not possible to sign equipment back in it must be

retained securely by the officer who initially signed for the equipment. Theequipment log must be documented accordingly. Logs must be keptmeticulously to provide probity to the courts, if required.

24. If, for example, a stills/digital camera was used on surveillance thefollowing points would have to be included in a statement and thereforeshould be recorded in the investigators Notebook, the:

time and date the camera was signed for, giving the serial number,make and model

time and date the film(s)/memory card was signed for, the referencenumber of the film(s)/memory card, the make and ASA rating (denoting

the speed of the film), where applicable time, date and location where the seal was broken on a new film. When

the film/memory card was loaded into the camera (quoting thereference number)

time, date and place each photograph is taken, keeping a record of thenumber of each photograph taken

identity of each person whose photograph is taken, if known, or subject1, 2 etc, if not known, and/or a brief description of the subject matter ofthe photograph

name of the photographer

number of photographs taken

time, date and place the film/memory card is removed from the camera time and date the film/memory card is handed over to the nominated

officer (if they are responsible for taking the film to the developers, orthe printing of digital images from the memory card)

time, date and place the investigator takes the film to be developed andthe name of the developers and

processing method and number of prints made from the exposed film. Astatement from the developer is required to ensure continuity ofevidence

25. The use of video recording equipment, for example xxxxx in FraudInvestigation Service (Organised) (FIS(O)) cases, should be recorded in



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either the individual or operational surveillance log, or both, if appropriate.This can then be utilised to construct the officers witness statement.These procedures will support the reliability and accuracy of theinvestigators statement. The surveillance logs will be subject to the normalrules of disclosure.

26. It is essential that equipment featuring time and date stamp facilities areactivated and set to the correct time/date prior to use.

27. It is advisable to use the film/memory card reference number provided bythe stockholder who issued the film/memory card to the investigator whenrecording these actions. The individual log, showing the details of imagestaken, should be retained in the fraud file to which it relates. Secure andreliable laboratories that will be able and prepared to provide continuitystatements must undertake processing of the film.

28. The officer who took the photographs or the nominated officer will then beresponsible for:

recording the date the film/memory card was returned or collected from

the laboratory storing the photographs in a secure cabinet with restricted access.

29. It is recommended that a register is kept to record thefilms/negatives/memory card and signed, dated and timed by anyone whosubsequently has access to these. Only one set of prints is required at thisstage.

30. The films/memory card/DVD, whichever is applicable, should be given anexhibit number by the officer who took them, using their initials and anumber. This should follow the reference number of the film/memorycard/DVD (for example, film with stockholder reference number A1 and

officer taking the photographs with initials MH: - A1/MH1, A1/MH2, etc)(England and Wales only).31. In Scotland procedures are different, documents produced as productions

can be certified under section 279A of Criminal Proceedings (Scotland) Act(CP(S)A) 1995, however, these certificates are prepared by the CentralProsecution Team (CPT), and submitted with the report to the ProcuratorFiscal (PF).

32. The investigator must account for the secure whereabouts of the film/printsat all times and be able to state that the film/prints has not been tamperedwith.

33. Some of the photographs that will be used in evidence will eventually be

placed on the prosecution file. Where the investigator decides to store thenegatives/memory cards/DVDs elsewhere, the fraud file and notebookshould describe clearly where they are held and provide the referencenumber for retrieval purposes together with the procedure for retrieval.

34. The disclosure officer will have to view the photographs and the register aspart of any eventual disclosure procedure and any unused photographsand the register will have to be listed on the unused material schedule.

35. Details of the location of the evidence must be recorded on FRAIMS.

Transfer of digital images to other recordable formats

36. It will be necessary to transfer digital images captured during surveillance,

from a flashcard, or a cameras hard drive if a xxxxxxxxxxxxx is used, onto



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another secure recordable format for example, Digital Versatile Discs(DVD), Compact Discs (CD). xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx.

37. You must ensure that all images taken are transferred on to the newformat, which will be classed as a master copy. Do not attempt to delete

any recorded images on the master copy.38. Once the images have been burned onto a DVD the recording must be

locked in a secure environment to alleviate tampering.39. The transfer of data must be fully documented on the fraud file and

supported by a witness statement. The statement must be retainedsecurely with the transferred data, with a copy being placed on theevidence file, see Specimen Witness Statements Surveillance - DVDProduced by the Investigator.

40. The footage on the Cameras hard drive will be erased once a DVD hasbeen produced so that it can be used in future surveillance operations.

41. If the investigator does not have the necessary software for transferring

images from a flashcard xxxxxxxxxxxxxxxx to a DVD a nominated laptopuser must be asked to carry out this action.

Nominated laptop user

42. Most FIS teams will have an officer who has been authorised by the TFI touse a laptop that contains software for the transfer of digital images from aflashcard or cameras hard drive and for editing DVDs. Only the nominatedofficer will have the software for editing DVDs.

43. Once the nominated officer has burned the footage onto a DVD theimages on the flashcard or cameras hard drive will be deleted. The

nominated officer will give a statement explaining the actions taken seeSpecimen Witness Statements Surveillance - DVD Produced bynominated laptop user.

Editing of recorded footage

44. Footage obtained during a surveillance operation may include informationthat is either irrelevant or of no interest to the investigation. If theinvestigator is of the opinion that some of the footage can be deleted theDVD must be referred to a nominated laptop user.

45. Once an edited DVD has been obtained the original master copy as wellas the edited DVD must be retained. The nominated laptop user must also

produce a statement to explain the actions taken, see Specimen WitnessStatements Surveillance - Edited DVD produced by nominated laptopuser.

Logging of photographs and videos

46. In this section, for ease of reference, the term videotape may apply to anyrecordable format for example, DVD, CD, memory card etc.

47. Photographs/video recordings taken during a surveillance operation mustbe recorded in the investigators Notebook or an individual surveillancelog, if appropriate. If large numbers of photographs or video footage aretaken in the course of a day, they should be recorded in a photographic logor an individual surveillance log. This should be kept for production as an



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exhibit. These procedures will support the reliability and accuracy of theinvestigators statement. Any photographic evidence obtained during thecourse of surveillance should be recorded in either the individualssurveillance log and/or cross referenced to the operational surveillance logat the appropriate time of the event.

48. Should digital images/videotape require editing or highlighting, this mustbe done on a working copy and not the original. A separate statementmust be obtained from the laboratory technician responsible for theediting/highlighting and the investigator must include in his own statementdetails of the movements of the original videotape to and from thattechnician or any other person. The original videotape must be retained assecure evidence.

49. Recorded visual evidence may be available from another source, forexample a Post Office, Jobcentre Plus or cheque cashing shop, usually inthe form of a Closed Circuit Television (CCTV) tape or DVD.

50. In England and Wales (E&W), the witness/operator concerned must

produce the videotape and relevant stills as evidence. Statements relatingto the operational loading, recording and unloading of recording equipmentwithin an establishment should be taken from the relevant witness/ personwho operated the equipment. Their statement should include the handingover of the videotape as their exhibit to an officer of the department. Thevideotape, now an exhibit itself, should always be played back to theoriginal identifying witness, the person who served/viewed the suspect, forthat person to be given the opportunity of identifying any suspect(s) to theofficer and be recorded in their witness statement.

51. The statement should also set out the procedures adopted by the personresponsible for the use of the videotape, (with a view again to establishingthe reliability of the videotape) the statement should cover for example:

the origin of the videotape and whether it was pre-erased

the procedure adopted for loading it setting the date and time on it

the procedure adopted for taking it out of the recording equipment andwhat happened to the videotape once it was taken out of the recordingequipment (continuity evidence)

52. In Scotland, the investigator must produce the videotape as evidence.53. If the videotape is to be used, for example, to confirm a transaction took

place, the witness must be asked to produce a statement of facts giving anaccount of the transaction. If the statement seems reliable and confirms

what is on the videotape the investigator can play back the videotape tothe witness. They should make reference in their witness statements tohaving been shown the videotape by the investigator and their consequentidentification of the suspect, noting the time stated on the videotape.

Closed Circuit TV (CCTV) and Automatic Number PlateRecognition (ANPR) Equipment

54. The use of overt CCTV cameras by public authoritiesdoes not normallyrequire an authorisationunder the 2000 Act. Members of the public will beaware that such systems are in use, and their operation is covered by theData Protection Act 1998 and the CCTV Code of Practice 2008, issued bythe Information Commissioners Office. Similarly, the overt use of ANPR



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systems to monitor traffic flows or detect motoring offences does notrequire an authorisation under the 2000 Act.

Example: Overt surveillance equipment, such as town centre CCTV systemsor ANPR, is used to gather information as part of a reactive operation (e.g. toidentify individuals who have committed criminal damage after the event).

Such use does not amount to covert surveillance as the equipment was overtand not subject to any covert targeting. Use in these circumstances would not

require a directed surveillance authorisation.

55. However, where overt CCTV or ANPR cameras are used in a covert andpre-planned manner as part of a specific investigation or operation, for thesurveillance of a specific person or group of people, a directed surveillanceauthorisationshould be considered. Such covert surveillance is likely toresult in the obtaining of private informationabout a person (namely, arecord of their movements and activities) and therefore falls properly withinthe definition of directed surveillance. The use of the CCTV or ANPR

system in these circumstances goes beyond their intended use for thegeneral prevention or detection of crime and protection of the public.Example:A local police team receive information that an individual suspectedof committing thefts from motor vehicles is known to be in a town centre area.A decision is taken to use the town centre CCTV system to conductsurveillance against that individual such that he remains unaware that theremay be any specific interest in him. This targeted, covert use of the overt towncentre CCTV system to monitor and/or record that individuals movementsshould be considered for authorisation as directed surveillance.Example: Fraud Investigation Service (FIS) receive information that aclaimant in receipt of benefit is working for a local retailer. The owner of the

retail premises, which have CCTV in place, is approached to request accessto future CCTV footage. Although the person under surveillance has beenidentified; CCTV will not be used to target the individuals specific movements.In this scenario directed surveillance authorisation must be obtained as theuse of overt CCTV and request for footage is pre-planned.

Approaching CCTV Operators

56. When making an initial approach to a CCTV operator a copy of the CCTVProtocol (CCTV1)signed by the FI and the operator should be handed tothe operator. A signed copy of this document should be retained in theevidence file. This document explains the legal requirements for obtaining

CCTV footage and how it should be supplied.57. Some information providers may request that their own version of the

CCTV Protocol is used; this could mean that the wording is slightlydifferent to the CCTV1. These requests should be accepted providing thatthe revised document contains all the required information contained in thenational protocol and does not breach the DWP data protection policy.

Obtaining CCTV images from Land Securi ties Trillium

58. In the event of an investigator wishing to secure CCTV footage locally fromLand Securities Trillium, they should contact the Trillium Customer

Services Helpdesk on xxxx xxxxxxx. Give Trillium details of the office site

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and the date the CCTV evidence is required for, requesting a job ordernumber. Confirm the request by sending an e-mail to Land SecuritiesTrillium with a copy of the CCTV Protocol (CCTV1), Include in the requestthat this is in connection with an ongoing criminal investigation and theevidence must also include the stated job order number obtained from

Trillium.59. Land Securities Trillium will endeavour to ensure that an engineer is

scheduled to attend the local site urgently, prior to any over copying, tosecure the evidence and to avoid the potential loss of any such CCTVevidence to the investigation. The evidence should then be obtained fromthe local Land Securities Trillium presence at the local site.

Other Devices

Mobile camera phones

60. Investigators must not use mobile camera phones for the purpose ofobtaining photographic video evidence as:

there is a greater prospect of being detected using camera phones, theinvestigator must be within close proximity of the subject in order tocapture an image. Detection could result in the investigator beingconfronted by the subject with the risk of both the investigation and theinvestigators security being compromised

the image quality is unlikely to be of satisfactory quality so the evidentialvalue of the image will be weakened

if there is incompatibility of software it will not always be possible todownload the image from the camera phone.

61. In subsequent criminal proceedings it may be necessary to proveauthenticity of the image and demonstrate that the captured image has notbeen changed since its creation. An image captured on a camera phonemay not be deemed sufficiently secure to guarantee its authenticity.

Disclosure

62. If any RIP forms or any information surrounding surveillance containmaterial, which could potentially undermine a prosecution or assist thedefence, the Team Fraud Investigators (TFI) in charge of observationsshould alert the prosecutor of this when the file is initially submitted forprosecution.

63. This enables the prosecutor to make their prosecution decision on all thefacts.

64. In all proceedings cases the duty of disclosure under Criminal Proceedingsand Investigation Act arises. For further information, see:

Court Hearing (England and Wales)

Court Hearings (Scotland) and

CPIA (Including Disclosure Officer duties).65. RIP forms should usually be listed on the non-sensitive disclosure

schedule66. If the RIP form(s) contain sensitive information they should be listed on the

sensitive disclosure schedule.



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67. The Disclosure Officer must asterisk any RIP forms containing materialwhich undermines the prosecutions case on whichever schedule theforms appear and provide a copy of the undermining material.

68. The item must be separately listed on the disclosure certificate and a copysent to the relevant prosecuting authority.

69. The relevant prosecuting authority will then decide whether the formshould be disclosed to the Defence.

70. If the RIP form(s) contain sensitive information and the materialundermines the prosecutions cases/assists the defence, the relevantprosecuting authority will have to decide whether to apply to the Judge todetermine disclosure or whether to withdraw the case. .

71. As the RIP forms may be disclosed to the defence it is important to onlyinclude information that is absolutely relevant to the authorisation requestin the application. Unless it is essential to do so do not include details ofthe source of the allegation or query in the application.

72. If the original RIP forms are required for Court purposes, these must be

provided to the relevant prosecuting authority and a copy retained. TheAuthorising Officer must annotate, initial and date the top of the copy RIPforms to show that the originals have been sent to the relevant prosecutingauthority. Following the Court case, the Authorising Officer must ensurethat all original forms are returned at which time the copies should bedestroyed via confidential waste.

To the Appeal Tribunal

73. If the claimant raises concerns about the conduct of officers in obtainingsurveillance evidence during the appeal tribunal hearing, the Appeal

Tribunal may request a copy of the application and authorisation for thesurveillance (RIP1).74. For more details on the actions to be taken when a request is received

from the Decision Maker, see Decision Making.

For Prosecutions

England and Wales

75. Material obtained through covert surveillance may be used in evidence incriminal proceedings. Properly authorised surveillance should ensure thatthe observational evidence that has been obtained will be admissible incriminal proceedings.

76. The evidence/information obtained as a result of surveillance is alsosubject to the ordinary rules for retention and disclosure of material underthe Criminal Procedure and Investigations Act 1996 (not applicable inScotland).

Scotland

77. In Scotland the question of disclosure is one for the Procurator Fiscal butFIS have a duty to reveal evidence/information obtained as a result ofsurveillance under Criminal Justice and Licensing (Scotland) Act 2010.



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05 Pre-surveillance checks

Pre-Surveillance Checks

1. Pre-surveillance checks must be conducted in all cases before requesting

authorisation for surveillance.2. The purpose of pre-surveillance checks is to establish that surveillance isrelevant to the investigation, that the information cannot be obtained byother less intrusive means and to ensure that any proposed surveillanceactivity is properly planned. It is acceptable for lone officers to carry outpre-surveillance activities.

3. A pre-surveillance check must involve:

conducting background checks from other sources such as benefitcomputer systems

visiting a location to identify if it is suitable for surveillance for riskassessment purposes.

If surveillance is planned at different times of the day at a particularlocation the risk assessment should cover all the proposed times

If more than one location is involved, a visit can be made to eachlocation.

4. A written Health and Safety risk assessment must be completed using theRisk Assessment Pro-formaand attached to the activity on FRAIMS.

5. More than one pre-surveillance visit may be undertaken but must benecessary to reinforce the risk assessment. If so, full details as to whymore than one visit was considered necessary must be noted in an e-mailto the Team Fraud Investigator (TFI) and agreement obtained. If thedecision of the TFI is for another pre-surveillance check, attach the e-mail

with the decision of the TFI to the FRAIMS activity, see FRAIMS guidance- 01 Pre-Surveillance Checks.

6. It may also involve Other Government Departments (OGDs) where there isa legal gateway for exchange of information or where a Memorandum ofUnderstanding (MOU) exists.

7. Information provided by OGDs or other Agencies such as the police inrelation to pre-surveillance activity can be accepted and included in therisk assessment. Pre-surveillance visits do not require an authorisationunder Regulation of Investigatory Powers Act (RIPA) 2000/Regulation ofInvestigatory Powers (Scotland) Act (RIP(S)A) 2000.

8. The visit will involve a survey of the area to assess collateral intrusion,operational/personal risks and any particular sensitivity in the localcommunity where surveillance will take place. Details of the visit must berecorded in the official notebook with relevant information recorded onFRAIMS.

9. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

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considers that it does not meet the legislative criteria, but allows it tocontinue.

6. It does include activity which should have been authorised but wasn't orwhich was conducted beyond the directions provided by an authorisingofficer. All activity which should have been authorised but was not should

be recorded and reported to the Inspector(s) at the commencement of aninspection.

Authorisat ions in Jo int Working Cases wi th Local Authori ties

7. When directed covert surveillance is required in a joint working case withan LA where HB/CTB is being investigated, only one authorisation toinclude both organisations is required.

8. In England and Wales if the LA is leading in the surveillance operation, theLA will arrange authorisation for both organisations but are required toapply to a magistrate for an order under section 32A (inserted by section38 of the Protection of Freedoms Act 2012).

9. DWP do not require judicial approval as section 32A of RIPA does notapply to DWP authorisations.

10. Judicial approval is not required by LAs in Scotland using RIP(S)A asthese provisions do not apply to RIPA(S)A.. This means that an LAManager can authorise surveillance for both organisations in Scotland.

11. If DWP are leading in the surveillance operation, DWP will authorise thedirected covert surveillance. This applies in England, Wales and Scotland.

Subjects of surveillance

12. Depending on the type of investigation, authorisations may be requested

for one or more subjects of surveillance and for different locations. It isimportant that the authorisation covers the subject(s) identified on theapplication form whether by name or, if the name is not known, the exactor approximate number of subjects or unidentified subjects involved or whomay become involved and specific locations if known depending on thenature of the offence being investigated.

13. It is acceptable to include the phrase alleged to be in relation to thesubject. For example:

14. An investigation involving manipulated Instrument Of Payments (IOPs) atdifferent post offices may require the application to cover all of the subjectsbelieved to be involved in this investigation including those whose

identities are not yet known during the course of the surveillance. It mayalso require authorisation at known post offices at the outset and postoffices identified as being used during the course of surveillance.

15. In cases where the subject's identity is not known, include any availableadditional information about the subject(s) to help the Authorising Officerdecide if surveillance is appropriate, for example, any availabledescriptions of subject(s) to distinguish between subject 1 and subject 2.

16. If the subject is later identified and named, a RIP4 will need to becompleted within three working days detailing the new information. Furtherclarification on RIP4 completion can be found in Surveillance Reviews.

17. If additional/new subjects or specific locations within the

operation/investigation are subsequently identified, which were not



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covered on the initial RIP1, further authorisation to conduct surveillancewill be required. New individuals or specific locations must not be added tothe original authorisation retrospectively.

18. The additional subjects or specific locations will not have been subject toformal authorisation by the Authorising Officer, therefore a new RIP1 will

need to be submitted for authorisation to cover new subjects or specificlocations identified.

19. Observations can be conducted on people who are not in receipt ofbenefit, such as the partner in a Living Together As Husband andWife/Civil Partner (LTAHAW/CP) allegation or query, providing that therelevance of such action to the investigation can be demonstrated in theapplication for surveillance. In LTAHAW/CP cases, the subjects of thesurveillance application are likely to be the benefit claimant and thesuspected partner.

Number of investigators

20. One authorisation will cover the maximumnumber of officers to bedeployed at any one time as recorded in section 3 of the RIP1. Thenumber of officers must be proportionate to the offence being investigatedor to achieve the outcome of the surveillance. Each case must beconsidered on its individual merits

21. It should be noted that the example given below is not necessarilyindicative or prescriptive of the number of officers to be deployed. Insimilar circumstances, it may be proportionate to deploy more officers. Forexample:

22. A team of six investigators may be required to conduct surveillance on a

collusive employer with two officers deployed at any one time.23. It is acceptable in England and Wales for lone officers to carry outsurveillance activities but they must not communicate whilst they areundertaking mobile surveillance due to the risks of Health and Safety, formore information see Health and Safety.

24. In Scotland any evidence obtained must be corroborated thereforesurveillance should be carried out by a minimum of two officers.

25. If the number of officers to be deployed at any one time exceeds themaximum on the original authorisation, including observers or trainees, thechange must be reported to the Authorising Officer on form RIP4.

26. If the investigator who commenced the investigation is no longer involved

for any reason, the other investigators working on that case would notrequire further authorisation. Neither would a replacement investigatorrequire further authorisation where only one investigator was considerednecessary for the investigation.

Use of radios and surveillance equipment

27. The procedures detailed in Radio Procedures should be followed if it isintended to loan radio equipment to a partner organisation during thecourse of joint working.

28. Details of any radio equipment to be used should be recorded in section 3of the RIP1. If the surveillance includes officers from another authoritysuch as a Local Authority (LA) and radio equipment is to be loaned to them



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details should be included in section 3. Before requesting authority to loanequipment to a partner organisation, the Fraud Investigator (FI) mustensure a Personnel Baseline Security Check or equivalent has beencompleted for the recipient. In order to assure that the check has beencompleted the Personnel Baseline Security Check certificate should be

completed by the partner organisation and attached to the RIP1.29. Authority to loan equipment to a partner organisation will be provided in

writing by the Team Fraud Investigation (TFI) in section 12 of the RIP1.30. The recipient of the equipment should be briefed on the COP and informed

of the requirement to comply with its provisions including use of correctcommunication protocols prior to the equipment being issued.

31. A description in general terms of all equipment that is to be used duringthe surveillance operation must be included on the RIP1. Although there isa requirement to record a description of equipment to be used(make/model), and for what purpose, in section 3 of the RIP1, there is norequirement to record details of serial numbers.

Purchasing Items

32. Purchasing items is classed as covert surveillance even though theinvestigator comes face to face with the subject. This is because the act ofpurchasing an item is carried out in a manner calculated to ensure that theperson subject to surveillance is unaware that it is or may be taking place.

33. Where the object of purchasing an item is to simply obtain evidence ofemployment no authorisation is required. This is because the purchasingtakes place in a public place and no private information is obtained, andthere is no intention to ask further questions or establish a relationship to

elicit further information which may be regarded as private. However, if it isintended to purchase items on a number of different occasions the activitywill be Directed Surveillance and authorisation will be required. Seeexamples below.

34. Any conversation with the suspect must be restricted to normal generalconversation a claimant would have with a vendor. The purpose of thepurchase is to confirm that the suspect is indeed selling either items or aservice. It is not to try and obtain information about any other clients fromthe vendor or any other private information. This would have to beobtained by other means or by questioning at any interview that is beingconsidered with the suspect.

Author isation not required

35. A suspect allegedly works as a shop assistant. Activity should be restrictedto purchasing an item and then to leave the premises. A systematicapproach to obtaining evidence over a period of time, at different times ofthe day, is not appropriate and therefore must not be applied.

Author isat ion required

36. Where a suspect works in a bar and a drink is purchased the likelihood isthat surveillance will take place while the drink is consumed. Thepurchasing activity in this instance will form part of directed surveillanceand therefore must be included as an authorised activity.



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37. If surveillance activity is required in addition to purchasing an item it isgood practice to include the purchasing activity in the surveillanceauthorisation even if it is intended to make only one pu

Documents

Fraud Guide Surveillance