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COVERT SURVEILLANCE

CHAPTER 3: GENERAL RULES ON AUTHORISATIONS

3.1 An authorisation under the RIP(S) Act will provide lawful authority for a public authority to carry out covert surveillance. Responsibility for authorising surveillance operations will vary, depending on whether the authorisation is for intrusive surveillance or directed surveillance, and which public authority is involved. For the purposes of Chapter 3 and 4 of this code the authorising officer, senior authorising officer or the person who makes an application to the Scottish Ministers will be referred to as an 'authorising officer'.

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 source of lawful authority, the consequence 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 surveillance is likely to interfere with a person's Article 8 rights to privacy by obtaining private information about that 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 and the 1997 Act will only ensure that there is a justifiable interference with an individual's Article 8 rights if it is necessary and proportionate for these activities to take place. 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 6(3) of the RIP(S) Act for directed surveillance and in section 10(2)(a) of the RIP(S) Act for intrusive surveillance.

3.5 Then, if the activities are necessary, the person granting the authorisation must be satisfied that they are proportionate to what is sought to be achieved by carrying them out. This involves balancing the intrusiveness of the activity on the target and others who might be affected by it against the need for the activity in operational terms. The activity 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. All such activity should be carefully managed to meet the objective in question and must not be arbitrary or unfair.

Collateral Intrusion

3.6 Before authorising surveillance 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 investigation or operation (collateral intrusion). Measures should be taken, wherever practicable, to avoid or minimise unnecessary intrusion into the lives of those not directly connected with the investigation or operation.

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 surveillance.

3.8 Those carrying out the surveillance 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 particular sensitivities in the local community where the surveillance is taking place and of similar activities being undertaken by other public authorities which could impact on the deployment of surveillance. In this regard, it is recommended that where authorising officers consider that conflicts might arise they should consult a senior officer within the police force area in which the investigation or operation takes place.

3.10 The matters in paragraphs 3.1 - 3.9 above must also be taken into account when applying for authorisations or warrants for entry on or interference with property or with wireless telegraphy. In particular they must be necessary in the circumstances of the particular case for the statutory ground listed in section 93(2)(a) of the 1997 Act, proportionate and when exercised steps should be taken to minimise collateral intrusion.

Combined authorisations

3.11 A single authorisation may combine:

• two or more different authorisations under the RIP(S) Act;
• an authorisation under the RIP(S) Act and an authorisation under Part III of the 1997 Act.

3.12 For example, a single authorisation may combine authorisations for directed surveillance and intrusive surveillance. The provisions applicable in the case of each of the authorisations must be considered separately. Thus, a police superintendent can authorise directed surveillance but the intrusive surveillance needs the separate authority of a Chief Constable, and in certain cases the approval of a Surveillance Commissioner will also be necessary.

3.13 In cases where one agency is acting on behalf of another, it is normally for the tasking agency to obtain or provide the authorisation. For example, where surveillance is carried out by the Armed Forces on behalf of the police, authorisations would be sought by the police and granted by the appropriate authorising officer. However, in cases where the Security Service is acting in support of the police or other law enforcement agencies in the field of serious crime, authorisations would normally be sought by the Security Service.

Central record of all authorisations

3.14 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 and should contain the following information:

• the type of authorisation;
• the date the authorisation was given;
• name and rank/grade of the authorising officer;
• the unique reference number (URN) of the investigation or operation;
• the title of the investigation or operation, including a brief description and names of subjects, if known;
• whether the urgency provisions were used, and if so why;
• if the authorisation is renewed, when it was renewed and who authorised the renewal, including the name and rank/grade of the authorising officer;
• whether the investigation or operation is likely to result in obtaining confidential information as defined in this code of practice;
• the date the authorisation was cancelled.

3.15 In all cases, the relevant authority should maintain the following documentation which need not form part of the centrally retrievable record:

• a copy of the application and a copy of the authorisation together with any supplementary documentation and notification of the approval given by the authorising officer;
• a record of the period over which the surveillance has taken place;
• the frequency of reviews prescribed by the authorising officer;
• a record of the result of each review of the authorisation;
• a copy of any renewal of an authorisation, together with the supporting documentation submitted when the renewal was requested;
• the date and time when any instruction was given by the authorising officer.

Retention and destruction of the product

3.16 Where the product of surveillance 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.

3.17 There is nothing in the RIP(S) Act which prevents material obtained from properly authorised surveillance from 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 covert surveillance. Authorising officers must ensure compliance with the appropriate data protection requirements and any relevant codes of practice produced by individual authorities relating to the handling and storage of material.

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