The Investigatory Powers Tribunal has declined to make a determination in favour of two complainers who alleged that the installation of surveillance devices at the home of their next-door neighbours was unlawful and contrary to their rights under Article 8 of the European Convention on Human Rights. The case, heard by Lady Carmichael, Judge Rupert Jones and Francesca del Mese, centred on a covert camera and microphone installed by Avon and Somerset Constabulary at a neighbouring property.
How the surveillance operation was set up
In March 2021, a police officer obtained directed surveillance authority to install a CCTV camera at the home of the complainers’ neighbours. Shortly thereafter, a covert camera and microphone were installed, with each allowing for limited surveillance of the complainers. The devices operated continuously, recording footage and audio onto a hard drive stored in the neighbours’ house, so that specific incidents could be downloaded by police later. The neighbours themselves could not directly view the recordings.
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The devices were switched off in July 2021. Before that, they captured various incidents, including the first complainer throwing an item into the neighbours’ garden, spraying a neighbour with water over a shared fence, and attempting to provoke that neighbour verbally from an open window. The installation followed years of alleged incidents between the neighbours, including a claim that the first complainer threatened to kill her neighbour and threw a piece of wood at the son of the neighbour’s friend.
After discovering the surveillance, the complainers brought proceedings before the Investigatory Powers Tribunal. The tribunal had to decide whether the surveillance was “intrusive” or “directed” under section 26 of the Regulation of Investigatory Powers Act 2000, and if directed, whether it was lawful. It also examined whether surveillance continued after authorisation had ceased.
What the tribunal found
On the first issue, the tribunal said: “We are satisfied that the video camera did not consistently provide information of the same quality and detail as might be expected to be obtained from a device actually present on LMN’s premises. It captured only the airspace above the solid part of the boundary fence.” The position regarding the microphone was less clear, but the tribunal found no secure basis to conclude it provided information of the same quality as a device on the complainers’ premises. It followed that the surveillance was not intrusive, and both parties agreed it was directed if not intrusive.
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The tribunal also considered the accuracy of the police officer’s application for authorisation. It found that PC Roth’s statement that incidents were occurring monthly, if not twice per month, did not contain any material inaccuracy. The tribunal noted that the application did not detail how many allegations came from the first complainer rather than the neighbour, but added: “The thrust of the application was that it was difficult to tell which party, if either, was making a well-founded complaint on any given occasion.” It concluded the application was not incomplete or misleading in any material respect.
On proportionality, the tribunal applied the four-stage test from Bank Mellat v HM Treasury (No 2), considering whether the objective was sufficiently important, whether the measure was rationally connected to it, whether it was no more than necessary, and whether it struck a fair balance between individual rights and community interests. The tribunal said it was satisfied the surveillance was no more than necessary to achieve the objective of detecting and recording offending, and that the balance struck was fair.
This kind of dispute, where neighbours are at war and police turn to covert methods, tends to raise difficult questions about how far the state can go in private disputes. The tribunal acknowledged the case sat close to the line, noting the only offending actually detected that led to a successful prosecution was a single minor assault by spraying water. Yet it said the lawfulness of the measure did not fall to be assessed by reference to the gravity of that offence, given the suspected offending was “sufficiently persistent and potentially damaging” to the neighbour and her family.
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No evidence of continued surveillance
On the final issue, the tribunal found there was no evidence that recording continued after 22 July 2021. PC Roth applied for cancellation that day and contacted the neighbour at about 10.30am, telling her to turn the camera off and that police would collect it. The tribunal noted the neighbour was unhappy the camera was being removed, but said that did not provide a sound basis to infer she disobeyed the instruction. “She was not to know that some days would pass before officers would attend and collect it. They might have attended at any time,” the tribunal observed.
The tribunal accordingly made no determination in favour of the complainers. The decision means the police operation was lawful under the relevant legislation, despite the intrusion into the complainers’ private life.