One of the responsibilities of the Department of Home Affairs is to appoint a Surveillance Commissioner, and Mr Brendan O'Friel was appointed the Isle of Man's first Surveillance Commissioner in December 2006. He has been subsequently reappointed and his current term of office expires in December 2022.
The commissioner is required to produce a report to the Department as soon as practicable after the end of each year and recent reports can be found in the Downloadable Documents section of this page. The Department is then required to lay the report before Tynwald, including a statement detailing if any matters have been excluded from the report because it would be prejudicial to national security or to the prevention or detection of crime.
The commissioner is responsible for keeping under review the exercise and performance of persons who have powers or duties conferred upon them by the Regulation of Surveillance Etc Act 2006. It is not the responsibility of the commissioner to keep under review the department’s actions in relation to amending or revoking any public document under the Act or any of the actions or powers of the Deemster or the Tribunal under the Act.
Deputy Surveillance Commissioner
The Department also appoints a Deputy Surveillance Commissioner who works in conjunction with Mr O'Friel and undertakes the same duties when the Surveillance Commissioner is unavailable.
Steven Coren, a lawyer specialising in public law, was appointed Deputy Surveillance Commissioner in 2009 and in July 2015, he was subsequently reappointed and his current term of office expires in December 2022.
Educated at Cambridge University, where he took the Constitutional Law Prize, Mr Coren has been called to the Bar of England and Wales, and to the Manx Bar. A civil litigator at Old Court Chambers, he also advises on Manx public, administrative and employment law, also appearing at tribunals and inquiries.
Directed surveillance is surveillance which is not intrusive, so it does not take place in a person’s home or vehicle, but it is designed so the person under the surveillance is unaware of it and it is undertaken in relation to a specific investigation or a specific operation which is likely to result in the obtaining of private information about a person.
Directed surveillance would not occur in circumstances where there is a necessity for an immediate response to events or circumstances when it is not reasonably practicable for an immediate authorisation to be given under this Act.
The agencies undertaking directed surveillance are required to give notice to the commissioner within two days of the grant of any authorisation specifying the matters prescribed by the department. If the agency fails to give notice then the authorisation ceases.
The commissioner may put in place arrangements under which the agencies must submit notifications.
The commissioner must scrutinise any authorisation given as soon as practicable after it is received. In this regard it is the duty of the Chief Constable and Collector of Customs and Excise to provide any documents requested in order to enable the commissioner to carry out his/her functions.
The commissioner may quash, cancel or order the destruction of records, but must report to the Chief Constable or collector as soon as possible after making any such decisions.
The commissioner may not order the destruction of records if they are the subject of criminal or civil proceedings. Any order to quash, cancel or the destruction of records is subject to an appeal to the Deemster which must be brought within seven days of the commissioner reporting his/her decision. The Deemster may allow or dismiss an appeal and in the case of dismissing an appeal may modify the commissioner’s decision.
Covert human intelligence sources
The commissioner has no involvement in approving or overseeing the authorisation of covert human intelligence sources.
Intrusive surveillance is only permitted to be carried out by the Isle of Man Constabulary and Customs and Excise.
Intrusive surveillance is surveillance that may take place in person’s home or vehicle and may take place by means either of a person or device located inside residential premises or a private vehicle of the person who is subject to the surveillance, or by means of a device placed outside. A private vehicle is one used primarily for private purposes, for example for family, leisure or domestic purposes.
Intrusive surveillance does not include providing information about the location of the vehicle, for instance through a tracker device or where communications are intercepted with the intended person's consent.
Notice must be given of the authorisation of intrusive surveillance to the commissioner before the grant of the authorisation comes into effect. The commissioner must scrutinise the authorisation and decide whether or not to approve it. If the decision is not to approve then a report must be made to the Chief Constable or Collector. If approval is given then the commissioner may at any time quash, cancel the authorisation or order the destruction of records.
Where notice is given that the case is urgent then prior approval by the commissioner is not required. However, the commissioner may at any time quash, cancel the authorisation or order the destruction of records. Then the commissioner must make a report to the chief constable or collector.
The commissioner may not order the destruction of records if they are the subject of criminal or civil proceedings. All records must be destroyed within two years of the authorisation and must not be provided to other jurisdictions unless they agree to comply with the two year requirement.
Any order to quash, cancel or order the destruction of records is subject to an appeal to the Deemster which must be brought within seven days of the commissioner reporting his/her decision. The Deemster may allow or dismiss an appeal and, in the case of dismissing an appeal, may modify the commissioner's decision. The Deemster must give notice of the determination of the appeal to the commissioner and the person by whom the appeal was brought, and if the appeal is dismissed provide a report to the above plus to the Chief Minister.
It is the duty of the Chief Constable and every member of the Constabulary, the Collector of Customs and Excise and every Customs officer to provide information requested by the commissioner within two days of the receipt of the request. The commissioner may investigate the circumstances of any case in which there has been, or where the commissioner suspects there may have been, a failure on the part of any person to comply with the codes of practice.
On completion of the investigation, the Surveillance Commissioner must submit a report of his/her findings to the Chief Constable, collector or prescribed officer in the agency concerned.
Interception of Communications
The provisions governing the Interception of Communications are provided for in a different piece of legislation, the Interception of Communications Act 1988. Further information on this Act, the Interception of Communications Commissioner and the Tribunal thereunder, can be found on our Interception of Communications webpage.