Public bodies must be careful to complete the paperwork formalities to avoid human rights claims
Most readers will know of at least one instance where surveillance has been of crucial importance when defending either a fraudulent or grossly exaggerated insurance claim.
Breaching human rights
Broadly speaking, anyone who feels that their human rights have been breached can claim compensation. However, the Human Rights Act 1998 only applies to public authorities. Under section 6 of the Act, a “public authority” includes a person whose activities include functions of a public nature.
When it comes to human rights and surveillance, article 8(1) of the European Convention on Human Rights (ECHR) is a key provision. It says that every individual has the right to a private life. All defendants who perform functions of a public nature need to be aware that – theoretically, at least – claimants can argue that being subject to surveillance infringes their human rights. But it is important to appreciate that article 8(1) is not an absolute right. A public authority can carry out surveillance of someone without breaching article 8(1) if they can show that the surveillance is lawful, necessary for a legitimate aim and proportionate.
In this context, legitimate aims will include the preservation of national security, public safety or the economic well-being of the country; the prevention of disorder or crime; the protection of health or morals; or the protection of the rights and freedoms of others. It could possibly be argued that preventing exaggerated or fraudulent claims is important for the economic well-being of the insurance industry and the morals of the country, and that therefore surveillance of individuals making such claims has a legitimate aim.
However, following the introduction of the Human Rights Act, some public bodies discovered that their investigatory activities lacked a legal basis. Consequently, they could not demonstrate that their surveillance of individuals was lawful.
The Regulation of Investigatory Powers Act 2000 (RIPA) was introduced to solve this problem. In essence, RIPA creates a process of authorisation and warrants for investigations, including surveillance. A defendant wishing to conduct surveillance has to complete an application form. This form is detailed and requires the applicant to provide information explaining the necessity and proportionality of the surveillance. This will then be considered by the appropriate body, which will either authorise or refuse permission for the surveillance requested. Generally speaking, authorisation must be sought before the surveillance starts. There are some occasions, though, where it can be obtained retrospectively.
RIPA applies only to criminal cases but civil investigations are analogous. Our advice is that the RIPA procedures should still be followed in civil cases so as to avoid claims under article 8(1) of the ECHR.
If a defendant does not comply with RIPA, then the claimant who is under surveillance can bring a claim and seek compensation for breach of article 8(1). To defeat any such claim (and indeed to prevent any breach occurring in the first place), a defendant needs to have an effective paper trail in place to show that they have complied with RIPA and obtained either authorisation or a warrant, making their actions lawful. This in turn will mean that they can show that their actions are proportionate and necessary, since the authorisation or warrant would not have been granted if the surveillance had not been both these things.
It is important that all public authorities are aware of the implications of article 8(1) of the ECHR, and that they have a good working knowledge of RIPA. They need to know which forms they must complete and who needs to review those forms to decide if authorisation should be granted or a warrant issued. To avoid the risk of litigation for any breach of article 8(1), the wisest course is to obtain authorisation before carrying out the surveillance.