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COVERT HUMAN INTELLIGENCE SOURCES
CHAPTER 3: GENERAL RULES ON AUTHORISATIONS
3.1 An authorisation under the RIP(S) Act will provide lawful authority for the use of a source. Responsibility for giving the authorisation will depend on which public authority is responsible for the source.
3.2 The RIP(S) Act does not impose a requirement on public authorities to seek or obtain an authorisation where, under the RIP(S) Act, one is available (see section 30 of the RIP(S) Act). Nevertheless, where there is an interference by a public authority with the right to respect for private and family life guaranteed under Article 8 of the European Convention on Human Rights, and where there is no other lawful authority, the consequences of not obtaining an authorisation under the RIP(S) Act may be that the action is unlawful by virtue of section 6 of the Human Rights Act 1998.
3.3 Public authorities are therefore strongly recommended to seek an authorisation where the use or conduct of a source is likely to interfere with a person's Article 8 rights to privacy by obtaining information from or about a person, whether or not that person is the subject of the investigation or operation. Obtaining an authorisation will ensure that the action is carried out in accordance with law and subject to stringent safeguards against abuse.
Necessity and Proportionality
3.4 Obtaining an authorisation under the RIP(S) Act will only ensure that the authorised use or conduct of a source is a justifiable interference with an individual's Article 8 rights if it is necessary and proportionate for the source to be used. The RIP(S) Act first requires that the person granting an authorisation is satisfied that the authorisation is necessary in the circumstances of the particular case for one or more of the statutory grounds in section 7(3) of the RIP(S) Act.
3.5 Then, if the use of the source is necessary, the person granting the authorisation must be satisfied that the use of a source is proportionate to what is sought to be achieved by the conduct and use of that source. This involves balancing the intrusiveness of the use of the source on the target and others who might be affected by it against the need for the source to be used in operational terms. The use of a source will not be proportionate if it is excessive in the circumstances of the case or if the information which is sought could reasonably be obtained by other less intrusive means. The use of a source should be carefully managed to meet the objective in question and sources must not be used in an arbitrary or unfair way.
Collateral intrusion
3.6 Before authorising the use or conduct of a source, the authorising officer should also take into account the risk of intrusion into the privacy of persons other than those who are directly the subjects of the operation or investigation (collateral intrusion). Measures should be taken, wherever practicable, to avoid unnecessary intrusion into the lives of those not directly connected with the operation or investigation.
3.7 An application for an authorisation should include an assessment of the risk of any collateral intrusion. The authorising officer should take this into account, when considering the proportionality of the use and conduct of a source.
3.8 Those tasking a source should inform the authorising officer if the investigation or operation unexpectedly interferes with the privacy of individuals who are not covered by the authorisation. When the original authorisation may not be sufficient, consideration should be given to whether a new authorisation is required.
3.9 Any person granting or applying for an authorisation will also need to be aware of any particular sensitivities in the local community where the source is being used and of similar activities being undertaken by other public authorities which could impact on the deployment of the source. Consideration should also be given to any adverse impact on community confidence or safety that may result from the use or conduct of a source or of information obtained from that source. In this regard, it is recommended that where the authorising officers consider that conflicts might arise they should consult a senior officer within the police force area in which the source is deployed. Additionally, the authorising officer should make an assessment of any risk to a source in carrying out the conduct in the proposed authorisation.
3.10 In a very limited range of circumstances an authorisation under the RIP(S) Act may, by virtue of sections 1(7) and 5 of RIP(S) Act, render lawful conduct which would otherwise be unlawful, if it is incidental to any conduct falling within section 1(8) of the RIP(S) Act which the source is authorised to undertake. This would depend on the circumstances of each individual case, and consideration should always be given to seeking advice from the legal adviser within the relevant public authority when such activity is contemplated. Consideration should also be given to consultation with the Procurator Fiscal. A source that acts beyond the limits recognised by the law will be at risk from prosecution. The need to protect the source cannot alter this principle.
Combined authorisations
3.11 A single authorisation may combine two or more different authorisations under the RIP(S) Act. For example, a single authorisation may combine authorisations for intrusive surveillance and the conduct of a source. In such cases the provisions applicable to each of the authorisations must be considered separately. Thus, a police superintendent can authorise the conduct of a source but an authorisation for intrusive surveillance by the police needs the separate authority of a Chief Constable, and in certain cases the approval of a Surveillance Commissioner will also be necessary. Reference should also be made to paragraph 5.41 of this code which deals with the use of a covert human intelligence source with technical equipment.
Directed surveillance against a potential source
3.12 It may be necessary to deploy directed surveillance against a potential source as part of the process of assessing their suitability for recruitment, or in planning how best to make the approach to them. An authorisation under this code authorising an officer to establish a covert relationship with a potential source could be combined with a directed surveillance authorisation so that both the officer and potential source could be followed. Directed surveillance is defined in section 1(2) of the RIP(S) Act. See the code of practice on Covert Surveillance.
Central record of all authorisations
3.13 A centrally retrievable record of all authorisations should be held by each public authority and regularly updated whenever an authorisation is granted, renewed or cancelled. The record should be made available to the relevant Commissioner or an Inspector from the Office of Surveillance Commissioners, upon request. These records should be retained for a period of at least three years from the ending of the authorisation.
3.14 Proper records must be kept of the authorisation and use of a source. Section 7(6) of the RIP(S) Act provides that an authorising officer must not grant an authorisation for the use or conduct of a source unless he believes that there are arrangements in place for ensuring that there is at all times a person with the responsibility for maintaining a record of the use made of the source. The Regulation of Investigatory Powers (Source Records) (Scotland) Regulations 2002; SSI No. 205 details the particulars that must be included in the records relating to each source.
3.15 In addition, records or copies of the following, as appropriate, should be kept by the relevant authority:
- a copy of the authorisation together with any supplementary documentation and notification of the approval given by the authorising officer;
- a copy of any renewal of an authorisation, together with the supporting documentation submitted when the renewal was requested;
- the reason why the person renewing an authorisation considered it necessary to do so;
- any authorisation which was granted or renewed orally (in an urgent case) and the reason why the case was considered urgent;
- any risk assessment made in relation to the source;
- the circumstances in which tasks were given to the source;
- the value of the source to the investigating authority;
- a record of the results of any reviews of the authorisation;
- the reasons, if any, for not renewing an authorisation;
- the reasons for cancelling an authorisation; and
- the date and time when any instruction was given by the authorising officer to cease using a source.
3.16 The records kept by public authorities should be maintained in such a way as to preserve the confidentiality of the source and the information provided by that source. There should, at all times, be a designated person within the relevant public authority who will have responsibility for maintaining a record of the use made of the source.
Retention and destruction of the product
3.17 Where the product obtained from a source could be relevant to pending or future criminal or civil proceedings, it should be retained for a suitable further period and its retention reviewed at a future date.
3.18 There is nothing in the RIP(S) Act which prevents material obtained from properly authorised use of a source being used in other investigations. Each public authority must ensure that arrangements are in place for the handling, storage and destruction of material obtained through the use of a source. Authorising officers must ensure compliance with the appropriate data protection requirements and any relevant codes of practice produced by individual authorities in the handling and storage of material.
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