Investigatory Powers Tribunal dismisses complaint against police surveillance devices installed at neighbouring property

About this case:

• Citation:
  [2026] UKIPTrib 5
• Judgment:
  External link
• Court:
  Investigatory Powers Tribunal
• Judge:
  Lady Carmichael, Judge Rupert Jones and Francesca del Mese

Seeking to investigate years of alleged incidents between neighbours, Avon and Somerset Constabulary installed a covert camera and microphone at a house next door to that of the complainers. Shortly after the devices were switched off in July 2021, the complainers brought proceedings before the Investigatory Powers Tribunal.

The case was heard by Lady Carmichael, Judge Rupert Jones and Francesca del Mese, with Hannah Smith appearing for the complainants and James Berry KC for the respondents.

Covert surveillance devices

In March 2021, an officer of Avon and Somerset Constabulary obtained directed surveillance authority to install a CCTV camera at the home of the complainers’ neighbours. Shortly thereafter, a covert camera and a microphone were installed at the property, with each allowing for limited surveillance of the complainers. The devices operated so as continuously to record footage and audio onto a hard drive, stored in the neighbours’ house, in order to allow for specific incidents to be recorded and subsequently downloaded by the police. Recordings made by the devices could not directly, however, be viewed by the neighbours.

Before the devices were switched off in July 2021, they recorded footage of various incidents, including the first complainer throwing an item into the neighbours’ garden; spraying a neighbour with water over their shared fence; and attempting verbally from an open window to provoke that neighbour. The installation followed years of incidents between the neighbours, including the first complainer allegedly threatening to kill her neighbour and throwing a piece of wood at the son of the neighbour’s friend.

After discovering the surveillance, the complainers raised proceedings before the Investigatory Powers Tribunal. Various issues fell to be decided: namely, whether the surveillance was ‘intrusive’ or ‘directed’ for the purposes of section 26 of the Regulation of Investigatory Powers Act 2000 and, if the latter, whether it was lawful; and whether surveillance was in fact continued after authorisation had ceased.

Surveillance no more than necessary to detect offending

Beginning by considering the issue of whether the surveillance was ‘intrusive’ or ‘directed’, the tribunal observed: “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 is less clear in relation to the microphone [but] [t]here is no secure basis in the evidence for a conclusion that the microphone was such that it consistently provided information of the same quality and detail as might be expected to be obtained from a device on LMN’s premises. On the contrary, we are satisfied, on the balance of probabilities, that it did not. It follows that the surveillance in this case was not intrusive surveillance. There is no dispute that the surveillance in this case was, if it was not intrusive, directed.”

Turning to consider the accuracy of the information contained in the police officer’s application for authorisation, it continued: “We are satisfied both looking at the longer period back to December 2017 and at the ten months preceding the application, that PC Roth’s statement that incidents were occurring monthly, if not twice per month, does not contain any material inaccuracy. In our view, the fact that the application did not detail how many of the allegations came from [the first complainer] rather than [the neighbour] is not a material omission. 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 … In summary … we are satisfied that the application was not incomplete or misleading in any material respect.”

Regarding the legality, necessity and proportionality of the respondents’ surveillance measures, the tribunal reasoned: “When considering the proportionality of the directed surveillance in this case, the four-stage test set out in Bank Mellat [v HM Treasury (No 2) (2013)] requires the Tribunal to consider the following questions[:] (a) Was the objective at which the measure was aimed sufficiently important to justify limiting a fundamental right?[;] (b) Was the measure rationally connected to the objective to be achieved?[;] (c) Was the measure no more than was necessary to accomplish the objective?[;] (d) Did the measure strike a fair balance between the rights of the individual and the interests of the community?”

Applying that test, it added: “[W]e are satisfied, on balance, that the surveillance was no more than was necessary to achieve the objective of detecting and recording [the first complainer]’s offending, and that the balance struck between her interest and that of the community was a fair balance. We are conscious that the only offending actually detected that resulted in a successful prosecution was of a single, minor, assault by spraying water. The lawfulness of the measure does not, however, fall to be assessed by reference to the gravity of that offence. The suspected offending in this case was sufficiently persistent and potentially damaging to [the neighbour] and her family, viewed in the context of all the known circumstances, to justify the interference that took place with [the first complainer]’s rights. The suspected offending was, however, towards the lower end of the scale so far as its seriousness was concerned, and this case may be close to the line at which an interference with Article 8 rights by way of directed surveillance might become disproportionate to the legitimate objective of detecting criminal activity.”

Concluding by examining whether surveillance continued after the respondents’ authorisation had ceased, the tribunal observed: “There is simply no evidence to support the proposition that recording continued after 22 July 2021. The evidence before us is that PC Roth applied for cancellation on 22 July 2021. His unchallenged evidence is that he contacted [the neighbour] at about 10.30am that day. He told her she needed to turn the camera off, and that police would be round to collect it […] He recorded also in the application that [she] was not happy that the camera was being removed. That does not, however, provide a sound basis for us to infer that she disobeyed the instruction to switch it off. She was not to know that some days would pass before officers would attend and collect it. They might have attended at any time. There is no particular reason why she should have kept the equipment running. She could not access the recordings herself.”

The tribunal accordingly made no determination in favour of the complainers.