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COVERT SURVEILLANCE
CHAPTER 4: SPECIAL RULES ON AUTHORISATIONS
4.1 The RIP(S) Act does not provide any special protection for 'confidential information'. Nevertheless, particular care should be taken in cases where the subject of the investigation or operation might reasonably expect a high degree of privacy, or where confidential information is involved. Confidential information includes matters subject to legal privilege, confidential personal information or confidential journalistic material.
4.2 In cases where through the use of surveillance it is likely that knowledge of confidential information will be acquired, the use of surveillance is subject to a higher level of authorisation. Annex A lists the authorising officer for each public authority permitted to authorise such surveillance.
Communications subject to Legal Privilege
4.3 In Scotland, the law relating to legal privilege rests on common law principles. In general communications between professional legal advisers and their clients will be subject to legal privilege unless they are intended for the purpose of furthering a criminal act or to obtain advice thereon.
4.4 Legal privilege does not apply to communications made with the intention of furthering a criminal purpose (whether the lawyer is acting unwittingly or culpably). Legally privileged communications will lose their protection if, for example, the professional legal adviser is intending to hold or use them for a criminal purpose. But privilege is not lost if a professional legal adviser is properly advising a person who is suspected of having committed a criminal offence. The concept of legal privilege applies to the provision of professional legal advice by any individual, agency or organisation qualified to do so.
4.5 The RIP(S) Act does not provide any special protection for legally privileged information. Nevertheless, such information is particularly sensitive and surveillance which acquires such material may engage Article 6 of the ECHR (right to a fair trial) as well as Article 8. In criminal proceedings, the admissibility of legally privileged material obtained by surveillance will require to be determined by the courts. Accordingly, action which may lead to such information being acquired is subject to additional safeguards under this code.
4.6 In general, an application for surveillance which is likely to result in the acquisition of legally privileged information should only be made in exceptional and compelling circumstances. Full regard should be had to the particular proportionality issues such surveillance raises. The application should include, in addition to the reasons why it is considered necessary for the surveillance to take place, an assessment of how likely it is that information subject to legal privilege will be acquired. In addition, the application should clearly state whether the purpose (or one of the purposes) of the surveillance is to obtain legally privileged information.
4.7 This assessment will be taken into account by the authorising officer in deciding whether the proposed surveillance is necessary and proportionate under section 6 of the RIP(S) Act for directed surveillance and under section 10 for intrusive surveillance. The authorising officer may require regular reporting so as to be able to decide whether the authorisation should continue. In those cases where legally privileged information has been acquired and retained, the matter should be reported to the relevant Commissioner or Inspector during his next inspection and the material be made available to him if requested.
4.8 A substantial proportion of the communications between a lawyer and his client(s) may be subject to legal privilege. Therefore, any case where a lawyer is the subject of an investigation or operation should be notified to the relevant Commissioner or Inspector during his next inspection and any material which has been retained should be made available to him if requested.
4.9 Where there is any doubt as to the handling and dissemination of information which may be subject to legal privilege, advice should be sought from a legal adviser within the relevant public authority before any further dissemination of the material takes place. Similar advice should also be sought where there is doubt over whether information is not subject to legal privilege due to the "in furtherance of a criminal purpose" exception. The retention of legally privileged information, or its dissemination to an outside body, should be accompanied by a clear warning that it is subject to legal privilege. It should be safeguarded by taking reasonable steps to ensure there is no possibility of it becoming available, or its contents becoming known, to any person whose possession of it might prejudice any criminal or civil proceedings related to the information. Any dissemination of legally privileged material to an outside body should be notified to the relevant Commissioner or Inspector during his next inspection. These arrangements are without prejudice to the role of the Procurator Fiscal in the investigation of crime and the role of the courts to determine the admissibility of any evidence for which privilege is claimed.
Communications involving confidential personal information and confidential journalistic material
4.10 Similar consideration must also be given to authorisations that involve confidential personal information and confidential journalistic material. In those cases where confidential personal information and confidential journalistic material has been acquired and retained, the matter should be reported to the relevant Commissioner or Inspector during his next inspection and the material be made available to him if requested.
4.11 Confidential personal information is information held in confidence relating to the physical or mental health. Such information, which can include both oral and written communications, is held in confidence if it is held subject to an express or implied undertaking to hold it in confidence or it is subject to a restriction on disclosure or an obligation of confidentiality contained in existing legislation. Examples might include consultations between a health professional and a patient, or information from a patient's medical records.
4.12 Confidential journalistic material includes material acquired or created for the purposes of journalism and held subject to an undertaking to hold it in confidence, as well as communications resulting in information being acquired for the purposes of journalism and held subject to such an undertaking. Journalists have a restricted right not to disclose a source of information which is regulated by section 10 of the Contempt of Court Act 1981. The journalist's right is restricted by the fact that such disclosure can be ordered by the court if it is satisfied that it is necessary in the interests of justice, or national security or for the prevention of disorder or crime.
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