Trying to clarify my thoughts on RIPA again - this time about the issuing of authorisations. With all the stories in the media and following questions in Council I have been asked to expedite the annual review of> corporate processes, procedures and standards and review now. My concern is I fail to see how we as a local authority should issue authorisations -
1. I don't beileve they are ever necessary and adequate vires can be found elsewhere. The view elsewhere is that if nothing else they guarantee:
(i) a proper process where the need for authorisations can be properly documented and considered- all well and good, but you don't need a RIPA authorisaton to do this. It can be done just as easily through a similar proceess, but outside of RIPA; and
(ii) it provides a legitimate defence against a challenge under HRA S 6 or a challenge about the legitimacy of the collection of the evidence. Again I don't see how RIPA is needed for this if everything is done properly. If it isn't the RIPA authorisation is flawed and likely to be rejected by the Courts. This in itself doesn't mean to say the evidence will be rejected, that is a matter for the courts to decide on.
I am also aware that RIPA part II is optional, which in itself doesn't mean that authroisations should not be raised but does in my mind raise questions around necessity - if they are necessary one would expect the legilsation to say they must or shall be raised where approprisate. Following on from this I suggested that we must show necessity and proportionality in line with RIPA S28 (2)and bearing in mind RIPA S 28 (3, effectively as an LA we can only authorise for the prevention and prosecution of crime - sorry for teaching grannny to suck eggs. The answer came back from one section that this was incorrect we should consider whether an authorisation was not unnecessay and if it was raise an authorisation.
This I believe is a play on semantics, but does cause me issues. Unlike "shall", which following the Epping Forest decision the courts have said shall be treated as "must", ie there is no option, rather than "should", which does leave doors open, I do not believe not unnecessary has the same meaning as necessary. I believe not unnecessary establishes a half way house between necessary and unnecessary and in itself to raise an Authorisatoin under these terms riases the potential for the authorisation to be flawed. I was wondering on what your view was on the "necessary" and "not unnecessary" angle.
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