In this section
The Regulation of Investigatory Powers Act (RIPA) 2000 gives certain public authorities, including HM Revenue and Customs (HMRC), the legal authority to carry out covert investigation activities. It also regulates the way in which those activities are carried out to ensure that a person’s rights of privacy under Article 8 of the Human Rights Act 1998 are only interfered with when necessary.
RIPA regulates both surveillance activities and the use of covert informants. It is very unlikely that VOA staff will ever be asked by clients to carry out any form of surveillance activity nor should they ever need to resort to the use of covert informants. If such requests are received they should be referred to CEO before any action is taken. However there is a risk that caseworkers may, when carrying out their normal duties, unwittingly stray into this area. All staff therefore need to be aware of the provisions of RIPA, in particular:
- What may constitute ‘surveillance’?
- What is a ‘covert informant’?
Surveillance activities are those that involve monitoring, observing or listening to persons. Looking at property is not surveillance but there is a risk that when inspecting property staff may see and record other information about persons. For example, when taking photographs of a property there is a risk that one may unwittingly record other personal information.
RIPA defines two types of surveillance activity:
- intrusive surveillance and
- directed surveillance
‘Intrusive surveillance’ is defined as covert surveillance carried out in relation to anything taking place in residential premises (or in a private vehicle), which is likely to result in obtaining private information about a person. VOA staff are not permitted to carry out ‘intrusive surveillance’ and should take care not to carry out any activity which could be described as such. For example, when internally inspecting any premises, whether residential or other, VOA staff must always obtain permission to inspect and take photographs.
Directed surveillance’ is any surveillance that is:
- conducted covertly (i.e. in a way intended to prevent the taxpayer from finding out)
- is carried out for the purpose of a specific operation or investigation which is likely to result in obtaining private information about a person. (Private information includes any information relating to a person’s private life or family.)
The key to avoiding any accusation of unauthorised surveillance is to be completely open with the taxpayer and seek permission before undertaking whatever activity is proposed (e.g. seek permission to take internal photographs during an inspection). If DV Services caseworkers are requested to take photographs by any HMRC client, or specifically record any other information, the client should inform the taxpayer of their request and notify the DVS caseworker accordingly. If this confirmation is not provided the matter should be referred back to the client.
It should be noted that taking external photographs of a particular property from the highway or a public right of way, for instance whilst undertaking a ‘not negotiated’ Capital Gains Tax valuation, is not ‘directed surveillance’ because we are only looking at the property and are not recording anything that a member of the public could not see. However, if in such circumstances you are challenged by a suspicious occupier you should identify yourself (although in tax cases when explaining the purpose of your activity you should be careful not to breach taxpayer confidentiality).
Similarly, taking photographs of general street scenes (for instance of comparables, for MCCs or Part I claims) will not involve ‘directed surveillance’ because they are records of property rather than people. If information is not linked directly to a person, then it will not contravene Article 8 of the Human Rights Act either. Article 8 permits interference with individual’s privacy as long as it is in accordance with the law, and proportionate.
Staff should not pass on unsolicited information following an inspection of a property. For example, DVS staff should not comment upon the extent of business activity in their report to an HMRC client, unless they have been specifically requested to do so and HMRC has provided the appropriate authority.
It is unlikely that staff carrying out inspections for local taxation purposes will contravene the requirements of this Act. However it is good practice to seek the agreement of the occupier of premises before taking photographs either internally or externally.
RIPA regulates the use of ‘informers’ which are now known as ‘Covert Human Intelligence Sources’ (CHISs). The definition of a CHIS in the Act is such that if a member of the public (whether anonymous or named), supplies unsolicited information, they are not a CHIS. Contacting a member of the public to clarify information received is acceptable, as is asking them for information you already believe they know. However, asking for, agreeing to, or implying that a member of the public should use their contacts to find out something else for you, does make them a CHIS and subject to regulation. VOA staff must never follow this course of action.
Care must be taken if an informer provides information and then contacts you again to provide further details. In such cases it is important that there is a clear record of any conversations with the informer so that staff can demonstrate that they have not encouraged the person to find out further information. If there is any doubt or ambiguity about what was said CEO Customer Services must be advised immediately.