The Scottish Government

« Previous | Contents | Next »

Listen

COVERT HUMAN INTELLIGENCE SOURCES

CHAPTER 5: AUTHORISATION PROCEDURES FOR COVERT HUMAN INTELLIGENCE SOURCES

5.1 Under section 1(7) of the RIP(S) Act a person is a source if the person:

a. establishes or maintains a personal or other relationship with a person for the covert purpose of facilitating the doing of anything falling within paragraph (b) or (c);
b. covertly uses such a relationship to obtain information or to provide access to any information to another person; or
c. covertly discloses information obtained by the use of such a relationship or as a consequence of the existence of such a relationship.

5.2 A source may include those referred to as agents, informants and officers working undercover.

5.3 By virtue of section 1(8)(b) of the RIP(S) Act a purpose is covert, in relation to the establishment or maintenance of a personal or other relationship, if and only if, the relationship is conducted in a manner that is calculated to ensure that one of the parties to the relationship is unaware of the purpose.

5.4 By virtue of section 1(8)(c) of the RIP(S) Act a relationship is used covertly, and information obtained as mentioned in paragraph 5.1(c) above is disclosed covertly, if and only if it is used or, as the case may be, disclosed in a manner that is calculated to ensure that one of the parties to the relationship is unaware of the use or disclosure in question.

5.5 The use of a source involves inducing, asking or assisting a person to engage in the conduct of a source or to obtain information by means of the conduct of such a source.

5.6 The conduct of a source is any conduct falling within section 7(5) of the RIP(S) Act, or which is incidental to anything falling within section 7(5) of the RIP(S) Act.

Authorisation procedures

5.7 Under section 7(3) of the RIP(S) Act an authorisation for the use or conduct of a source may be granted by the authorising officer where that person is satisfied that the authorisation is necessary:

• for the purpose of preventing or detecting crime ¹ or of preventing disorder;
• in the interests of public safety;
• for the purpose of protecting public health ²;
• for any other purpose prescribed in an order made by the Scottish Ministers ³.

¹ Detecting crime is defined in section 31(8) of RIP(S) Act.
² This could include investigations into infectious diseases, contaminated products or the illicit sale of pharmaceuticals.
³ This could only be for a purpose which satisfies the criteria set out in Article 8(2) of ECHR.

5.8 The authorising officer must also be satisfied that the authorised use or conduct of a source is proportionate to what is sought to be achieved by that use or conduct.

5.9 The public authorities entitled to authorise the use or conduct of a source are those listed in section 8(3) of the RIP(S) Act. Responsibility for authorising the use or conduct of a source rests with the authorising officer and all authorisations require the personal authority of the authorising officer. An authorising officer is the person designated under section 7 of the RIP(S) Act to grant an authorisation for the use or conduct of a source. The Regulation of Investigatory Powers (Prescriptions of Offices, Ranks and Positions) (Scotland) Order 2000; SSI No. 343 designates the authorising officer for each different public authority and the officers entitled to act only in urgent cases. In certain circumstances the Scottish Ministers will be the authorising officer (see section 8(2) of RIP(S) Act).

5.10 The authorising officer must give authorisations in writing, except that in urgent cases, they may be given orally by the authorising officer or the officer entitled to act in urgent cases. In such cases, a statement that the authorising officer has expressly authorised the action should be recorded in writing by the applicant as soon as is reasonably practicable.

5.11 A case is not normally to be regarded as urgent unless the time that would elapse before the authorising officer was available to grant the authorisation would, in the judgement of the person giving the authorisation, be likely to endanger life or jeopardise the operation or investigation for which the authorisation was being given. An authorisation is not to be regarded as urgent where the need for an authorisation has been neglected or the urgency is of the authorising officer's own making.

5.12 Authorising officers should not be responsible for authorising their own activities, e.g. those in which they, themselves, are to act as the source or in tasking the source. However, it is recognised that this is not always possible, especially in the cases of small organisations. Where authorising officers authorise their own activity the authorisation record (see paragraphs 3.13 - 3.16) should highlight this and the attention of a Commissioner or Inspector should be invited to it during his next inspection.

5.13 The authorising officers within the police and the SDEA may only grant authorisations on application by a member of their own force or Agency.

Information to be provided in applications for authorisation

5.14 An application for authorisation for the use or conduct of a source should be in writing and record:

• the reasons why the authorisation is necessary in the particular case and on the grounds (e.g. for the purpose of preventing or detecting crime) listed in section 7(3) of the RIP(S) Act;
• the reasons why the authorisation is considered proportionate to what it seeks to achieve;
• the purpose for which the source will be tasked or deployed (e.g. in relation to an organised serious crime, espionage, a series of racially motivated crimes etc);
• where a specific investigation or operation is involved, nature of that investigation or operation;
• the nature of what the source will be tasked to do;
• the level of authority required (or recommended, where that is different);
• the details of any potential collateral intrusion and why the intrusion is justified;
• the details of any confidential information that is likely to be obtained as a consequence of the authorisation; and
• a subsequent record of whether authority was given or refused, by whom and the time and date.

5.15 Additionally, in urgent cases, the authorisation should record (as the case may be):

• the reasons why the authorising officer or the officer entitled to act in urgent cases considered the case so urgent that an oral instead of a written authorisation was given; and/or
• the reasons why it was not reasonably practicable for the application to be considered by the authorising officer.

5.16 Where the authorisation is oral, the detail referred to above should be recorded in writing by the applicant as soon as reasonably practicable.

Duration of authorisations

5.17 A written authorisation will, unless renewed, cease to have effect at the end of a period of twelve months beginning with the day on which it took effect.

5.18 Urgent oral authorisations or authorisations granted or renewed by a person who is entitled to act only in urgent cases will, unless renewed, cease to have effect after seventy-two hours, beginning with the time when the authorisation was granted or renewed.

Reviews

5.19 Regular reviews of authorisations should be undertaken to assess the need for the use of a source to continue. The review should include the use made of the source during the period authorised, the tasks given to the source and the information obtained from the source. The results of a review should be recorded on the authorisation record (see paragraphs 3.13 - 3.16) . Particular attention is drawn to the need to review authorisations frequently where the use of a source provides access to confidential information or involves collateral intrusion.

5.20 In each case the authorising officer within each public authority should determine how often a review should take place. This should be as frequently as is considered necessary and practicable.

Renewals

5.21 Before an authorising officer renews an authorisation, he must be satisfied that a review has been carried out of the use of a source as outlined in paragraph 5.19.

5.22 If at any time before an authorisation would cease to have effect, the authorising officer considers it necessary for the authorisation to continue for the purpose for which it was given, he may renew it in writing for a further period of twelve months. Renewals may also be granted orally in urgent cases and last for a period of seventy-two hours.

5.23 A renewal takes effect at the time at which, or day on which the authorisation would have ceased to have effect but for the renewal. An application for renewal should not be made until shortly before the authorisation period is drawing to an end. Any person who would be entitled to grant a new authorisation can renew an authorisation. Authorisations may be renewed more than once, if necessary, provided they continue to meet the criteria for authorisation. The renewal should be kept/recorded as part of the authorisation record (see paragraphs 3.13 - 3.16).

5.24 All applications for the renewal of an authorisation should record:

• whether this is the first renewal or every occasion on which the authorisation has been renewed previously;
• any significant changes to the information in paragraph 5.14;
• the reasons why it is necessary to continue to use the source;
• the use made of the source in the period since the grant or, as the case may be, latest renewal of the authorisation;
• the tasks given to the source during that period and the information obtained from the conduct or use of the source;
• the results of regular reviews of the use of the source.

Cancellations

5.25 The authorising officer who granted or renewed the authorisation must cancel it if the authorising officer is satisfied that the use or conduct of the source no longer satisfies the criteria for authorisation or that satisfactory arrangements for the source's case no longer exist. Where the authorising officer is no longer available, this duty will fall on the person who has taken over the role of authorising officer or the person who is acting as authorising officer (see The Regulation of Investigatory Powers (Cancellation of Authorisations) (Scotland) Order 2002; SSI No. 207). Where necessary, the safety and welfare of the source should continue to be taken into account after the authorisation has been cancelled.

MANAGEMENT OF SOURCES

Tasking

5.26 Tasking is the assignment given to the source by the persons defined at sections 7(6)(a) and (b) of the RIP(S) Act, asking him to obtain information, to provide access to information or to otherwise act, incidentally, for the benefit of the relevant public authority. Authorisation for the use or conduct of a source is required prior to any tasking where such tasking requires the source to establish or maintain a personal or other relationship for a covert purpose.

5.27 The person referred to in section 7(6)(a) of the RIP(S) Act will have day to day responsibility for:

• dealing with the source on behalf of the authority concerned;
• directing the day to day activities of the source;
• recording the information supplied by the source; and
• monitoring the source's security and welfare.

5.28 The person referred to in section 7(6)(b) of the RIP(S) Act will be responsible for the general oversight of the use of the source.

5.29 In some instances, the tasking given to a person will not require the source to establish a personal or other relationship for a covert purpose. For example a source may be tasked with finding out purely factual information about the layout of commercial premises. Alternatively, a trading standards officer may be involved in the test purchase of items which have been labelled misleadingly or are unfit for consumption. In such cases, it is for the relevant public authority to determine where, and in what circumstances, such activity may require authorisation.

5.30 It is not the intention that authorisations be drawn so narrowly that a separate authorisation is required each time the source is tasked. Rather, an authorisation might cover, in broad terms, the nature of the source's task. If this changes, then a new authorisation may need to be sought.

5.31 It is difficult to predict exactly what might occur each time a meeting with a source takes place, or the source meets the subject of an investigation. There may be occasions when unforeseen action or undertakings occur. When this happens, the occurrence must be recorded as soon as practicable after the event and, if the existing authorisation is insufficient it should be cancelled and a new authorisation should be obtained before any further such action is carried out.

5.32 Similarly where it is intended to task a source in a new way or significantly greater way than previously identified, the persons defined at section 7(6)(a) or (b) of the RIP(S) Act must refer the proposed tasking to the authorising officer, who should consider whether a separate authorisation is required. This should be done in advance of any tasking and the details of such referrals must be recorded.

Management responsibility

5.33 Public authorities should ensure that arrangements are in place for the proper oversight and management of sources, including appointing individual officers as defined in section 7(6)(a) and (b) of the RIP(S) Act for each source.

5.34 The person responsible for the day-to-day contact between the public authority and the source will usually be of a rank or position below that of the authorising officer.

5.35 In cases where the authorisation is for the use or conduct of a source whose activities benefit more than a single public authority, responsibilities for the management and oversight of that source may be taken up by one authority or can be split between the authorities.

Security and welfare

5.36 Any public authority deploying a source should take into account the safety and welfare of that source, when carrying out actions in relation to an authorisation or tasking, and to foreseeable consequences to others of that tasking. Before authorising the use or conduct of a source, the authorising officer should ensure that a risk assessment is carried out to determine the risk to the source of any tasking and the likely consequences should the role of the source become known. The ongoing security and welfare of the source, after the cancellation of the authorisation, should also be considered at the outset.

5.37 The person defined at section 7(6)(a) of the RIP(S) Act is responsible for bringing to the attention of the person defined at section 7(6)(b) of the RIP(S) Act any concerns about the personal circumstances of the source, insofar as they might affect:

• the validity of the risk assessment;
• the conduct of the source; and
• the safety and welfare of the source.

5.38 Where deemed appropriate, concerns about such matters must be considered by the authorising officer, and a decision taken on whether or not to allow the authorisation to continue.

ADDITIONAL RULES

Recording of telephone conversations

5.39 Subject to paragraph 5.40 below, the interception of communications sent by post or by means of public telecommunications systems or private telecommunications systems attached to the public network may be authorised only in accordance with the terms of Part I of the 2000 Act. Nothing in this code should be taken as granting dispensation from the requirements of that Part of the 2000 Act.

5.40 Part I of the 2000 Act provides certain exceptions to the rule that interception of telephone conversations must be warranted under that Part. This includes, where one party to the communication consents to the interception, it may be authorised in accordance with section 48(4) of the 2000 Act provided that there is no interception warrant authorising the interception. In such cases, the interception is treated as directed surveillance (see chapter 5 of the Covert Surveillance code of practice).

Use of covert human intelligence source with technical equipment

5.41 A source, whether or not wearing or carrying a surveillance device and invited into residential premises or a private vehicle, does not require additional authorisation to record any activity taking place inside those premises or vehicle which take place in his presence. This also applies to the recording of telephone conversations other than by interception which takes place in the source's presence. Authorisation for the use or conduct of that source may be obtained in the usual way.

5.42 However, if a surveillance device is to be used, other than in the presence of the source, an intrusive surveillance authorisation and if applicable an authorisation for interference with property should be obtained.

« Previous | Contents | Next »