Full case report
Paton v Poole BC
Reference IPT/09/01/C - IPT/09/05/C
Court Investigatory Powers Tribunal
Judge The President Mummery LJ, the Vice President Burton J and Mr Peter Scott QC
Date of Judgment 29 Jul 2010
Privacy – Article 8 ECHR – Regulation of Investigatory Powers Act 2002 – Surveillance – Local Education Authority – Application to School – Necessity – Proportionality
The eponymous complainant (C1), her partner and three daughters (C2 – C5) were put under covert surveillance authorised and carried out by the Respondent Council (R) as part of an investigation to determine the veracity of the information supplied by C1 regarding the ordinary residence of the family. C1 had stated that their ordinary residence was a property in the catchment area of the particular school for which C1 had applied for a place for C5. The council had received two phone calls from members of the public making formal complaints alleging that the family was not living at the property in the catchment area. The second caller claimed that C1 had boasted about pretending to live in the property. The family owned two flats in another property out of the catchment area and both addresses were kept under surveillance. An education officer employed by R monitored the family on a daily basis for three weeks and their movements were recorded in detailed surveillance forms. No digital camera or recording equipment of any kind was used in the surveillance. C1 discovered they had been under surveillance only when it was disclosed during a meeting with council officials to discuss the school application. C1 – C5 complained of unlawful directed surveillance and interference with their Article 8 rights. R defended its actions by claiming the cases were treated as potential criminal activity, which allowed it to use surveillance powers under RIPA. R further claimed that the directed surveillance was duly authorised under RIPA and was lawful, necessary for the prevention or detection of a crime and proportionate.
1) Whether the authorisation sought and granted within R for directed surveillance of C1 – C5 was for a permissible purpose, i.e. for the prevention or detection of crime;
2) Whether the person granting the authorisation believed that authorisation of directed surveillance of Cs was necessary on the ground of preventing or detecting crime; and
3) Whether the person granting the authorisation believed that authorised surveillance was proportionate to what was sought to be achieved by carrying it out.
4) Whether, in the absence of valid authorisation under RIPA, R as a public authority had interefered with Cs’ Article 8 rights.
Finding in favour of the Complainants:
1) The directed surveillance was not for the purpose of preventing or detecting crime but rather to detect whether Cs were ordinarily resident in the catchment area of the preferred school, and if not, to prevent C5 from taking up a place at that school.
2) There was no evidence that prior to authorisation of the surveillance R had considered whether measures other than covert surveillance were feasible and sufficiently effective to enable admissions information to be verified when suspicions were aroused. Further no consideration had been given as to whether it was necessary to subject the three complainants who were minors to surveillance in order to detect or prevent a ‘crime’ by their mother in supply allegedly false information to R about their ordinary residence.
3) The surveillance was disproportionate and could not reasonably have been believed to be proportionate. No consideration was given and no allowance was made in the setting of conditions of the surveillance for the fact that three of the targets were young children who were not believed to be parties to a suspected crime. The suspected crime could be prevented or detected without the children themselves being made targets of the surveillance.
4) In the light of its findings relating to the necessity and proportionality of the directed surveillance, the Tribunal concluded that R had acted in a manner incompatible with Cs’ Article 8 rights.
This is the first open hearing of the IPT of a challenge to councils’ wide-ranging powers under RIPA to carry out surveillance where criminal activity is suspected.
More from 5RB
5RB is the pre-eminent set in the area for handling defamation, privacy, contempt and data protection matters. Interviewees praise the set for having great depth and quality of counsel, and note that it boasts many of the top barristers in the field. Get the lowdown here.
New 22nd Edition of Clerk & Lindsell on Torts, published by Sweet & Maxwell. Further info here.