Surveillance Scotland

Two Scottish councils used anti-terrorism legislation to carry out surveillance on dog fouling, according to data obtained by BBC Scotland.

Local authorities authorised 501 clandestine investigations over the last three years into issues which also included underage sunbed sessions and the supply of diet pills.

The figures show an overall decline in the use of the spying powers.

But campaigners expressed concern at their use over “less serious” crimes.

The Regulation of Investigatory Powers (Scotland) Act (Ripsa), introduced in 2000, was intended to combat serious crime and terrorism.

The legislation allows public authorities to install hidden cameras, to bug or photograph someone in a public place, use undercover agents, and secretly follow people who are suspected of breaking the law.

Use of these techniques has to be authorised internally by an authorising officer or a designated person, and can only be used where it is considered necessary and proportionate.

The separate Regulation of Investigatory Powers Act (Ripa), introduced in the same year as Ripsa, allows Scottish authorities the additional power to trawl through communication traffic data such as phone calls, emails and website visits.

But while Scottish councils often used these powers for investigations into serious crime related to drugs and prostitution, the data – obtained through a series of coordinated freedom of information requests – reveals they were also utilised for more minor infractions.

Since 2012, South Ayrshire council authorised stings regarding underage sunbed sessions, the unlicensed sale of fireworks, and dog fouling.

A third of the Scottish investigations were authorised by Dundee City Council.

Half of those 137 operations were related to noise, but also included investigations into counterfeit cigarettes, fraudulent use of a blue badge, and a fake personal injury.

A council spokesman said: “The city council has carried out procedures within legal guidelines and the appropriate framework.”

A spokesperson for Aberdeenshire Council also said the legislation was used proportionately to protect the community.

The council said: “The investigations into the supply of diet pills or counterfeit tobacco, for example, were in the interests of public health as well as the fact that their supply constitutes a breach of Trading Standards legislation and is a criminal offence.”

‘Necessary and proportionate’

Last week the Scottish Parliament approved changes to codes of practice – which will come into force on 2 February – related to Ripsa that will tighten up the authorisation arrangements required for the surveillance of lawyer-client discussions.

Emma Carr, the director of Big Brother Watch, said more accountability was needed for intrusive surveillance.

She said: “The public will want surveillance powers to be used when it is right and necessary, necessary and proportionate.

“However, from almost the moment that the legislation was passed, hundreds of public authorities clambered to have access to these incredibly useful powers.

“This, alongside a lack of post-legislative scrutiny over more than 10 years, resulted in these powers being used for arguably less serious crimes.”

But the use of these surveillance laws by Scottish authorities has declined since 2012 – the same year a new piece of legislation stipulated requests for communications data could no longer be approved internally, and now had to have judicial approval.

Data collated by BBC Scotland also reveals how few investigations authorised under the two separate acts were directly linked with a conviction or penalty notice.

No criminal action followed 26 authorisations given by Aberdeenshire Council, and South Ayrshire’s 18 authorisations led to one conviction and one fine.

Ms Carr said: “If these powers are being used, especially the more intrusive of the powers, and there is no arrest or prosecution, then questions should certainly be asked as to why this is the case.

“This is why it is concerning that members of the public who have been placed under surveillance aren’t told that this is the case, meaning that they will be unable to seek redress if the surveillance has turned out to be unnecessary.”

Surveillance operations

The other bodies that used powers outlined under Ripsa included the national police force, the Scottish Prison Service (20 times), NHS National Services Scotland (3 times), Transport Scotland (1 time), the Scottish Environment Protection Agency (4 times), and Marine Scotland (5 times).

Police Scotland told BBC Scotland it could neither “confirm or deny” whether surveillance operations had been authorised by them under Ripa or Ripsa in the last three years.

It said: “If the Police Service were to either confirm or deny that any other information is held, other covert surveillance tactics will either be compromised or significantly weakened.

“To reveal exact detail of the number of Ripa or Ripsa applications on any specific subject area would reveal covert investigative activity that may or may not have taken place and would highlight to terrorists and individuals intent on carrying out criminal behaviour, covert policing activity.”

However, a recent report published by the Interception of Communications Commissioner – an independent watchdog set up under Ripa – reveals Police Scotland had 19,390 authorisations regarding communications data granted in 2013.

By comparison, intelligence personnel at GCHQ – this week at the centre of a story of how the organisation collected thousands of journalists’ confidential emails – had 1,406 authorisations granted.