IPT/12/28/C
IN THE INVESTIGATORY POWERS TRIBUNAL
4 July 2012
Before:
Mr Justice Burton
Mr Charles Flint QC
Hon Christopher Gardner QC
BETWEEN:
DAVID JAMES VAUGHAN
Complainant
and
SOUTH OXFORDSHIRE DISTRICT COUNCIL
Respondent
Mr David Vaughan (Litigant in Person)
Mr Ethu Crorie (instructed by the Head of Legal and Democratic Services of South Oxfordshire
District Council) for the Respondent
Mr Jonathan Glasson (instructed by the Treasury Solicitor) Advocate to the Tribunal
DECISION
Facts
(a) for the purposes of a specific investigation or a specific operation;
(b) in such a manner as is likely to result in the obtaining of private information about a person (whether or not one specifically identified for the purposes of the investigation or operation); and
(c) otherwise than by way of an immediate response to events or circumstances the nature of which is such that it would not be reasonably practicable for an authorisation under this Part to be sought for the carrying out of the surveillance.
(3) Subject to subsections (4) to (6), surveillance is intrusive for the purposes of this Part if, and only if, it is covert surveillance that–
(a) is carried out in relation to anything taking place on any residential premises or in any private vehicle; and
(b) involves the presence of an individual on the premises or in the vehicle or is carried out by means of a surveillance device.
(9) For the purposes of this section–
(a) surveillance is covert if, and only if, it is carried out in a manner that is calculated to ensure that persons who are subject to the surveillance are unaware that it is or may be taking place;
48.— Interpretation of Part II.
(2) Subject to subsection (3), in this Part “surveillance” includes–
(a) monitoring, observing or listening to persons, their movements, their conversations or their other activities or communications;
(b) recording anything monitored, observed or listened to in the course of surveillance; and
(c) surveillance by or with the assistance of a surveillance device.”
Surveillance within the meaning of s48(2)
16. The definition contained in s48(2) is inclusive, not exhaustive, but it is clear from the context of the act that surveillance must be directed at persons. It is only if persons are the subject of surveillance that it is necessary to control the exercise of surveillance powers, and only if persons are affected by surveillance that any issue of interference with rights of privacy arises. This is supported by s26(9) which refers to persons who are the subject of surveillance. It should be noted that s48(2) provides that the monitoring or observation is of activities of persons, that is their movements, conversations, communications or other activities. So conduct which consisted solely of the observation or inspection of the property of a person, for example the inspection of an abandoned vehicle, would not in itself constitute surveillance.
Covert within the meaning of s26(9)
Conclusion
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This case raised an important point of principle as to whether council tax home inspections constitute surveillance.After examining the definition of ‘surveillance’ and ‘covert’ the Tribunal concluded that there was no surveillance within the meaning of the legislation. Under Section 26(9) surveillance is covert only if it is carried out in a manner that is calculated to ensure that persons who are subject to the surveillance are unaware that it is or may be taking place. On this issue the focus of the case was on the manner in which the observation or monitoring of the Complainant was carried out. The Tribunal concluded that in the circumstances the surveillance carried out by the Council was not covert.