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COVERT SURVEILLANCE

CHAPTER 5: AUTHORISATION PROCEDURES FOR DIRECTED SURVEILLANCE

5.1 Directed surveillance is defined in section 1(2) of the RIP(S) Act as surveillance which is covert, but not intrusive (as defined in section 1(3) of the RIP(S) Act), and is undertaken:

a. for the purposes of a specific investigation or specific operation;
b. in such a manner as is likely to result in the obtaining of private information about a person (whether or not one specifically identified for the purposes of the investigation or operation); and
c. otherwise than by way of an immediate response to events or circumstances the nature of which is such that it would not be reasonably practicable for an authorisation under the Act to be sought for the carrying out of the surveillance.

5.2 Covert surveillance is defined in section 1(8)(a) of the RIP(S) Act as any surveillance which is carried out in a manner calculated to ensure that the persons subject to the surveillance are unaware that it is or may be taking place.

5.3 Private information is defined in section 1(9) of the RIP(S) Act as including any information relating to a person's private or family life. The concept of private information should be broadly interpreted to include an individual's private or personal relationship with others. Family life should be treated as extending beyond the formal relationships created by marriage.

5.4 Directed surveillance does not include covert surveillance carried out by way of an immediate response to events or circumstances which, by their very nature, could not have been foreseen. For example, a police officer would not require an authorisation to conceal himself and observe a suspicious person that the officer came across in the course of a patrol.

5.5 By virtue of section 48(4) of the 2000 Act, surveillance includes the interception of postal and telephone communications where the sender or recipient consents to the reading of or listening to or recording of the communication (as the case may be). For further details see paragraphs 5.29 - 5.31 of this code.

5.6 Surveillance in residential premises or in private vehicles is defined as intrusive surveillance in section 1(3) of the RIP(S) Act and is dealt with in Chapter 6 of this code. However, where surveillance is carried out by a device designed or adapted principally for the purpose of providing information about the location of a vehicle, the activity is classed as directed surveillance and should be authorised accordingly.

5.7 Directed surveillance does not include entry on or interference with property or with wireless telegraphy. These activities are subject to a separate regime of authorisation as set out in Chapter 7 of this code.

5.8 Directed surveillance includes covert surveillance within office premises, (as defined in paragraph 7.31 of this code). Authorising officers are reminded that confidential information should be afforded an enhanced level of protection. Chapter 4 of this code provides that in cases where the likely consequence of surveillance is to acquire confidential information, the authorisation should be given at a higher level.

Authorisation procedures

5.9 Under section 6(3) of the RIP(S) Act an authorisation for directed surveillance may be granted by an authorising officer where the authorising officer is satisfied that the authorisation is necessary in the circumstances of the particular case:

• for the purpose of preventing or detecting ¹ crime or of preventing disorder;
• in the interests of public safety;
• for the purpose of protecting public health ².

¹. Detecting crime is defined in section 31(8) of the RIP(S) Act and is applied to the 1997 Act by section 134 of that Act (as amended).
². This could include investigations into infectious diseases, contaminated products or the illicit sale of pharmaceuticals.

5.10 The authorising officer must also believe that the surveillance is proportionate to what it seeks to achieve.

5.11 The public authorities entitled to authorise directed surveillance are listed in section 8(3) of the RIP(S) Act. Responsibility for authorising the carrying out of directed surveillance rests with the authorising officer and requires the personal authority of the authorising officer. The Regulation of Investigatory Powers (Prescriptions of Offices, Ranks and Positions) (Scotland) Order 2000; SI No. 343 (as amended) designates the authorising officer for each different public authority and the officers entitled to act only in urgent cases.

5.12 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.

5.13 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 investigation or operation 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.

5.14 Authorising officers should not be responsible for authorising investigations or operations in which they are directly involved, although it is recognised that this may sometimes be unavoidable, especially in the case of small organisations, or where it is necessary to act urgently. Where an authorising officer authorises such an investigation or operation the central record of authorisations (see paragraphs 3.14 -3.15) should highlight this and the attention of a Commissioner or Inspector should be invited to it during his next inspection.

5.15 Authorising officers within the police may only grant authorisations on applications by a member of their own force (except in the case of applications for intrusive surveillance which may be granted by authorising officers to officers seconded to the Scottish Drug Enforcement Agency (the successor organisation to the Scottish Crime Squad) as specified in section 9 of the RIP(S) Act).

Information to be provided in applications for authorisation

5.16 A written application for authorisation for directed surveillance should describe any conduct to be authorised and the purpose of the investigation or operation. The application should also include:

• 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 6(3) of the RIP(S) Act;
• the reasons why the surveillance is considered proportionate to what it seeks to achieve;
• the nature of the surveillance;
• the identities, where known, of those to be the subject of the surveillance;
• an explanation of the information which it is desired to obtain as a result of the surveillance;
• 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 surveillance;
• the level of authority required (or recommended where that is different) for the surveillance; and
• a subsequent record of whether authority was given or refused, by whom and the time and date.

5.17 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.

5.18 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

5.19 A written authorisation granted by an authorising officer will cease to have effect (unless renewed) at the end of a period of three months beginning with the day on which it took effect.

5.20 Urgent oral authorisations or written authorisations granted 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

5.21 Regular reviews of authorisations should be undertaken to assess the need for the surveillance to continue. The results of a review should be recorded on the central record of authorisations (see paragraphs 3.14 - 3.15) . Particular attention is drawn to the need to review authorisations frequently where the surveillance provides access to confidential information or involves collateral intrusion.

5.22 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

5.23 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, the authorisation may be renewed in writing for a further period of three months. Renewals may also be granted orally in urgent cases and last for a period of seventy-two hours.

5.24 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, provided they continue to meet the criteria for authorisation.

5.25 All applications for the renewal of an authorisation for directed surveillance 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 5.16;
• the reasons why it is necessary to continue with the directed surveillance;
• the content and value to the investigation or operation of the information so far obtained by the surveillance;
• the results of regular reviews of the investigation or operation.

5.26 Authorisations may be renewed more than once, if necessary, and the renewal should be kept/recorded as part of the central record of authorisations (see paragraphs 3.14 - 3.15).

Cancellations

5.27 The authorising officer who granted or last renewed the authorisation must cancel it if the authorising officer is satisfied that the directed surveillance no longer meets the criteria upon which it was authorised. 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) Regulations 2000; SSI No. 207).

Ceasing of surveillance activity

5.28 As soon as the decision is taken that directed surveillance should be discontinued, the instruction must be given to those involved to stop all surveillance of the subject(s). The date and time when such an instruction was given should be recorded in the central record of authorisations (see paragraphs 3.14 - 3.15) and the notification of cancellation where relevant.

ADDITIONAL RULES

Recording of telephone conversations

5.29 Subject to paragraph 5.30 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.

5.30 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.

5.31 The use of a surveillance device should not be ruled out simply because it may incidentally pick up one or both ends of a telephone conversation, and any such product can be treated as having been lawfully obtained. However, its use would not be appropriate where the sole purpose is to overhear speech which, at the time of monitoring, is being transmitted by a telecommunications system. In such cases an application should be made for an interception of communication warrant under section 5 of the 2000 Act.

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