In early 2018 British Transport Police (BTP) commenced a misconduct investigation in relation to one of their Police Officers. The investigation was undertaken by the Counter Corruption Unit (‘CCU’) in the Professional Standards Department at BTP in relation to allegations that included that the Officer:
“was leaving work prior to the end of his rostered shifts for non-police purposes, including visiting a female friend, on duty time”
The female friend referred to was my client Alice, although it was not alleged that she herself was involved in any kind of wrongdoing.
During the course of the misconduct investigation, GPS data obtained for the Officer indicated that on several occasions during his rostered hours he had apparently left work early and had spent time at or in the vicinity of Alice’s home address.
In June 2018, the Counter Corruption Unit conducted the following online enquiries:
(a) a ‘Google street view’ search on my client’s address;
(b) a further search showed that the address was registered to Alice; and
(c) a Google search in relation to my client which “revealed her public Facebook page on which there were photographs indicating that she described [the Officer under investigation] as her boyfriend”.
The CCU investigator took screenshots of these photographs and included them in his investigation report. The images included pictures of Alice with a school-age child (her son).
In July 2018, the CCU investigator submitted an application for ‘Non-Regulated Covert Surveillance’ pursuant to a non-RIPA internal authorisation procedure [i.e a surveillance investigation which did not fall under the governance of the Regulation of Investigatory Powers Act 2000, succinctly known as “RIPA”]. He sought authorisation for “covert, directed but not intrusive surveillance of [the Officer]” including:
1. “the monitoring observing and listening to, of the movements, associations and
conversations of [the Officer], and/or the monitoring and observing of [Alice’s address]”;
2. the subsequent recording of anything monitored, heard or observed during the course of the
surveillance;
3. “surveillance activity to be carried out by trained surveillance operatives working for and/or on behalf of the British Transport Police, supported by or with the assistance of surveillance devices namely imaging equipment to include static and/or hand held digital still and/or video cameras and vision enhancing equipment to include binoculars and night vision equipment if necessary”; and
4. the use of observation vehicles, observation points and foot and mobile surveillance tactics where necessary.
In relation to collateral intrusion, the application stated:
“It is considered that there will be a certain amount of collateral intrusion when officers/surveillance operatives are deployed as the activity will be monitoring [the Officer] from his place of work to locations of interest that may be residential properties… Those impacted would be any other residents at the addresses he attends and also any other members of the public in company with [the Officer] …
However, no private information is anticipated to be obtained nor will it have any impact on their private lives or breach any privacy under the Human rights Act as surveillance officers will be working in public areas, where members of the public would not normally expect to have a privileged amount of privacy…”
On the same day, a Detective Superintendent approved the surveillance operation subject to the following restrictions:
- the activity was to be concentrated on the Officer and no images of other individuals were to
- be taken or obtained during the surveillance;
- no surveillance was to be conducted with Alice’s address: and
- on foot/mobile surveillance was not approved.
A covert surveillance vehicle was then ‘deployed’ outside Alice’s house on four occasions during August 2018. On each occasion the vehicle was deployed, it was left unmanned in a position where an onboard camera could observe the pavement and front gate to Alice’s house. The camera was switched on and off remotely on various occasions. On one occasion a surveillance officer (who was in charge of the vehicle) specifically took photographs on his mobile phone not only of Alice but also her young son, as they left the house in the company of the Officer. Alice understandably felt that this surveillance was highly intrusive to the lives of both her and her son. It was directed at their home address and showed them coming and going from their home at times when they had a reasonable expectation of privacy. Particularly distressing for Alice was the thought (though this was denied by the Police) that the surveillance was intended to prove that she was in a sexual relationship with the Officer, which was information of the most private and personal nature.
The surveillance photographs and screen shots from Alice’s Facebook page were included in a CCU Report dated September 2019, documenting the outcome of the investigation into the Officer.
When Alice learned about the surveillance, she first sought accountability by bringing proceedings before the Investigatory Powers Tribunal (IPT), which provides rights of redress to those who believe they have been the victim of unlawful ‘spying’ by public authorities such as the Police and the Intelligence services.
However, in March 2022, the IPT ultimately dismissed Alice’s claim on the basis that the tribunal did not have jurisdiction because the investigation into the Officer was a non-criminal misconduct investigation and hence did not fall within the remit of the Regulation of Investigatory Powers Act.
In other words, the IPT had jurisdiction to rule on the lawfulness of surveillance carried out in criminal investigations – but not civil matters.
After her claim was dismissed by the IPT, Alice approached me for help and after reviewing her case, I identified that she did still have a valid claim that could be brought within the Civil Court system (i.e. the County Court or High Court).
The reason for this was as follows:
Non-RIPA governed surveillance is frequently used by private companies in connection with investigations into suspected misconduct by members of staff (e.g. where an employer suspects that an employee is exaggerating the extent of an injury or disability) or in connection with civil litigation or pension disputes, on similar grounds.
When a non-public entity undertakes such measures there is no illegality in the fact of surveillance itself (provided actions taken in the course of the surveillance do not amount to torts or crimes in themselves), however when a Police Force, or other public body, carries out such surveillance it is governed by the European Convention on Human Rights (ECHR) and hence the Human Rights Act by the very fact that it is a public entity.
Therefore, the Police had to be able to justify their actions under Article 8 ECHR, or otherwise would be liable for a breach of the right to respect for private and family life.
British Transport Police could not turn for protection to the ‘umbrella’ of the RIPA rules and procedures, because they themselves had successfully argued that this non-criminal investigation was not governed by RIPA, in order to defeat Alice’s first claim in the IPT. In the circumstances they therefore had no defence to the contention that the taking of photographs of Alice and her son was a breach of both of their rights under Article 8.
Utilising the tools of the civil law therefore, and particularly a threatened claim under the Human Rights Act, I was able to secure for Alice and her son a total award of £12,000 damages.
The name of my client has been changed.
