Hannah Smith acts in first Investigatory Powers Tribunal decision on the meaning of residential premises and intrusive surveillance under RIPA

In an OPEN judgment handed down on 27 July 2026, the Investigatory Powers Tribunal (IPT) provided important guidance on:

• The meaning of ‘residential premises’ under the Regulation of Investigatory Powers Act 2000 (RIPA);
• The distinction between ‘intrusive’ and ‘directed’ surveillance under section 26 RIPA; and
• The factors relevant to assessing the necessity and proportionality of directed surveillance. 

As far as the parties are aware, this is the first IPT decision to consider the concepts of ‘intrusive surveillance’ and ‘residential premises’ under section 26 RIPA.  

The definitions of those terms matter. Intrusive surveillance can only be authorised in limited circumstances: where it is necessary in the interests of national security, for the purpose of preventing or detecting serious crime, or in the interests of the economic well-being of the United Kingdom (section 32(3) RIPA). By contrast, directed surveillance can be authorised in a broader range of circumstances, including where necessary for the prevention or detection of (any) crime or the prevention of disorder (section 28 RIPA). 

This case, LMN and XYZ v Chief Constable of Avon and Somerset Constabulary IPT/21/199/C and IPT/21/203/C concerned the installation of two covert surveillance devices, a video camera and a microphone, in the back garden of CDE’s property. CDE was the first Complainant (LMN’s) neighbour. The devices were installed after a series of allegations of criminal behaviour were made by CDE and LMN against one another.  

The police installed the video camera on a fence in CDE’s garden looking towards LMN’s back garden. They installed the microphone beneath a window on the exterior of CDE’s property.  

The IPT considered whether this covert surveillance: 

• Was ‘directed’ or ‘intrusive’; and
• If it was directed surveillance, whether its authorisation was necessary and proportionate under section 28 RIPA and / or compatible with Article 8 ECHR. 

The IPT made clear that both the above questions require a careful, fact sensitive assessment, and provided guidance on the factors relevant to such an assessment. Importantly, the IPT found that the Complainant’s back garden was ‘residential premises’ for the purpose of determining whether surveillance was ‘intrusive’, rejecting the Respondent’s argument that it was not. 

On the particular facts of the case the IPT concluded that the surveillance was lawful, directed surveillance.

‘Residential premises’ and ‘intrusive surveillance’  

To determine whether the surveillance was ‘intrusive’ it was necessary to consider:

1. Was the surveillance carried out in relation to anything taking place on any ‘residential premises’ (section 26(3)(a) RIPA)?
2. If so, and because the surveillance devices were not present on LMN’s premises, was the device such that it consistently provided information of the same quality and detail as might be expected to be obtained from a device actually present on the premises (section 26(5) RIPA)? 

Question 1 – Residential Premises?

The Respondent argued that LMN’s back garden was not ‘residential premises’. Instead, their understanding was that, within the police service, surveillance of a rear garden would not be considered intrusive surveillance. 

The IPT rejected that argument and held that LMN’s back garden was part of her residential premises. Further, they rejected any suggestion that surveillance in respect of rear gardens could, generally, be considered directed, rather than intrusive. Instead, the IPT emphasised that whether premises are residential is a fact sensitive question in every case.

The IPT provided the following guidance on how to determine that fact sensitive question: 

• The starting point is section 48 RIPA.
• Section 48(1) defines ‘residential premises’ as so much of any premises as is for the time being occupied or used by any person, however temporarily, for residential purposes or otherwise a living accommodation.
• Section 48(7)(b) excludes common areas from the definition of residential premises. LMN’s garden was not a shared or common space, so was not excluded from the definition.
• Neither the definition of ‘residential premises’ or of ‘premises’ under section 48 RIPA require that there be a structure of any kind, meaning a garden is not excluded for that reason.
• Assistance can also be derived from the Covert Surveillance and Property Interference Revised Code of Practice, August 2018 (the Code).
• The Code includes examples of premises that would, or would not, ordinarily count as residential premises. Of most relevance to this case, the Code provides that a ‘front garden or driveway of premises readily visible to the public’ would not be regarded as residential. The Code is silent in respect of back gardens.
• The extent of an individual’s ‘expectation of privacy’ in or on the premises is an important consideration.  
• A front garden or driveway that is not ‘readily visible to the public’ could potentially be treated as ‘residential premises’.
• The absence of a complete or ‘absolute’ expectation of privacy does not prevent an area being residential premises. LMN would, for example, be liable to be overheard by people in the gardens immediately adjacent and her rear garden was overlooked by at least two properties. 

Taking account of the above considerations, the IPT found LMN’s back garden was residential premises. It was used as a private garden attached to a home for residential purposes. It was not shared with any other properties, and the public did not have access to it.

Question 2 – information of the same quality and detail as would be obtained from a device on the residential premises? 

The IPT found, on the facts of the case, the devices did not provide information of the same quality and detail as would be obtained from a device on LMN’s residential premises, meaning the surveillance was directed, not intrusive. In particular, because the view of what LMN, or anyone else, was doing in her garden was found to be ‘very limited’, because the greatest part of the camera’s view was taken up with the solid part of the boundary fence. The view would not have been impeded by the boundary fence if the camera was located inside LMN’s premises, on her side of the fence. 

Of wider relevance, the IPT made the following points relevant to decisions whether surveillance is directed or intrusive:  

• The subjective intention of an authorising officer cannot be decisive as to whether surveillance is directed or intrusive.
• The authorising officer must be properly informed as to the capability of the device employed and must have regard to what the equipment is capable of picking up and expected to pick up, given its location.
• Where both a covert microphone and covert camera are installed, they are two separate devices, and the above assessments must be carried out in respect if both devices. The IPT noted that the Respondent’s submission, at times, treated the microphone and camera as though they were one device but found that that was not the correct approach. 

Necessity and proportionality 

The objective of the surveillance in this case was to detect and record evidence of offending by LMN, namely harassment, criminal damage and assault. The following factors were relevant to the IPT’s decision that directed surveillance was a proportionate measure to achieve that aim: 

• The measures implemented to limit the extent to which data was collected, viewed and retained, including:
  • CDE herself was unable to view the product of the surveillance.
  • The Respondent only accessed the product if CDE made an allegation about LMN.
  • The recordings were automatically overwritten after 1.5 days.
  • The vast majority of the product was destroyed 36 hours after it as created without ever being viewed or listened to.
• The expectation of privacy of the subject of the surveillance: LMN was found not have an absolute expectation of privacy in her back garden.
• The extent to which the Respondent had considered (and exhausted) other means of carrying out investigations. 

The IPT found, however, that 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’.

Hannah Smith acted for the Complainants LMN and XYZ, instructed by Molly Cox and Shamik Dutta at Bhatt Murphy.