Is the Back Garden “Residential Premises” for RIPA Purposes? What the IPT Decided in LMN and XYZ

In 27 July 2026 the Investigatory Powers Tribunal handed down its open judgment in LMN and XYZ v Chief Constable of Avon and Somerset Constabulary [2026] UKIPTrib 5. The complaints failed, but the reasoning matters to every Applicant, Authorising Officer and Gatekeeper.

The facts in brief

A long-running dispute between neighbours, with allegations going both ways. In March 2021 a directed surveillance authorisation was granted. A covert camera was fixed to a fence in the neighbour’s garden, looking towards LMN’s garden, and a microphone was placed under the neighbour’s kitchen window. LMN’s first-floor bathroom window sat directly above the neighbour’s garage and garden.

The law

Under section 26(3) of RIPA, covert surveillance is intrusive if it is carried out in relation to anything taking place on residential premises and involves a person on the premises or a surveillance device. Section 26(5) adds the qualification that matters here: a device that is not on the premises does not make the surveillance intrusive “unless the device is such that it consistently provides information of the same quality and detail as might be expected to be obtained from a device actually present on the premises”.

“Residential premises” is defined in section 48(1) as premises occupied or used “for residential purposes or otherwise as living accommodation”.

What the Tribunal decided

Each device is assessed on its own. The force at times treated the camera and microphone as one. The Tribunal: “That is not the correct approach.”

The surveillance was directed, not intrusive. Most of the camera’s view was taken up with the solid boundary fence. It “captured only the airspace above the solid part of the boundary fence”. One clear recording of LMN speaking in her bathroom, with the window open, was “a single occasion”. Neither device consistently delivered in-premises quality, so the surveillance was not intrusive.

Intention alone does not decide it. The force argued it had never intended to capture LMN inside her home. The Tribunal rejected the idea that the authorising officer’s intention, “looked at in isolation, can be decisive”. The key passage for AOs is paragraph 38:

“In deciding whether to authorise directed surveillance, the officer must have regard to what the equipment is expected to pick up, given its location … The authorising officer must be properly informed as to the capability of the device employed to be involved in the proposed surveillance.”

The back garden was residential premises. The Covert Surveillance and Property Interference Code of Practice treats a front garden “readily visible to the public” as not residential. The Tribunal noted the Code “is silent in relation to back gardens” and held that LMN’s garden — private, attached to her home, not shared, and with no public access — was part of the residential premises. It stressed this is “a fact sensitive question in every case”.

Note that the Tribunal had already found the surveillance was not intrusive before it reached the garden; it recorded its view because the point had been “fully argued”. The garden finding did not decide the outcome, but it shows how the Tribunal approaches the question.

Proportionate — but close to the line. The Tribunal found the surveillance necessary and proportionate, but warned the suspected offending was “towards the lower end of the scale” and “this case may be close to the line”.

What it means for your role

• Applicants: set out where each device will sit and what each one can see and hear. The AO has to be properly informed about capability, and that information comes from you.

• Authorising Officers: consider what the equipment is expected to pick up given its location, not only what you intend it to capture. Record your section 26(5) reasoning for each device.

• Gatekeepers and RIPA Co-ordinators: where a device may capture a private rear garden that is not shared and has no public access, expect it to be treated as residential premises. Check the section 26(5) assessment is on the form before it reaches the AO.

• Local authority teams: intrusive surveillance can only be authorised by the Secretary of State or a senior authorising officer, and no local authority is among them (RIPA s.32). If a device would consistently give in-premises quality, it is outside what you can authorise.

One last point: the force accepted that no officer checked the camera had actually been switched off at cancellation. A documented check would have closed the question.

Train with BDG. This decision is directly relevant to our Applicant, Authorising Officer and Gatekeeper training and our Investigatory Powers course. Read the full analysis in The Investigator Bulletin, Edition 7 https://www.bdgtrainingconsultancy.co.uk/investigator-bulletin.

To discuss training for your team, email info@bdgtrainingconsultancy.co.uk.

Sources: LMN and XYZ v Chief Constable of Avon and Somerset Constabulary [2026] Regulation of Investigatory Powers Act 2000 ss.26, 32, 48 (legislation.gov.uk); Home Office, Covert Surveillance and Property Interference Revised Code of Practice (August 2018).

This article is a training and awareness summary and does not constitute legal advice your own organisation’s policy and legal adviser take precedence.