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COVERT SURVEILLANCE

CHAPTER 7: AUTHORISATION PROCEDURES FOR ENTRY ON OR INTERFERENCE WITH PROPERTY OR WITH WIRELESS TELEGRAPHY

7.1 Part III of the 1997 Act provides lawful authority for entry on or interference with property or wireless telegraphy by the police.

7.2 In many cases a covert surveillance operation may involve both intrusive surveillance and entry on or interference with property or with wireless telegraphy. This can be done as a combined authorisation, although the criteria for authorisation of each activity must be considered separately (see paragraph 3.11).

7.3 Responsibility for such authorisations rests with the authorising officer as defined in section 93(5) of the 1997 Act, that is the Chief Constable or equivalent. Authorisations require the personal authority of the authorising officer (or their designated deputy) except in urgent situations, where it is not reasonably practicable for the application to be considered by such a person. The person entitled to act in such cases is set out in section 94 of the 1997 Act.

7.4 Authorisations under the 1997 Act may not be necessary where the police are acting with the consent of a person able to give permission in respect of relevant property. However consideration should still be given to the need to obtain an authorisation under the RIP(S) Act.

7.5 Authorisations may only be given by an authorising officer on application by a member of his or her own force for entry on or interference with property or with wireless telegraphy within the authorising officer's own area of operation. However, an authorising officer may authorise the taking of action outside the relevant area solely for the purpose of maintaining or retrieving any device, apparatus or equipment.

7.6 Any person giving an authorisation for entry on or interference with property or with wireless telegraphy under section 93(2) of the 1997 Act must be satisfied that:

• it is necessary for the action specified to be taken for the purpose of preventing or detecting serious crime; and
• that the taking of the action is proportionate to what the action seeks to achieve.

7.7 The authorising officer must take into account whether what it is thought necessary to achieve by the authorised conduct could reasonably be achieved by other means.

7.8 Any person granting or applying for an authorisation to enter on or interfere with property or with wireless telegraphy will also need to be aware of particular sensitivities in the local community where entry or interference is taking place and of similar activities being undertaken by other public authorities which could impact on the deployment. In this regard, it is recommended that the authorising officers should consult a senior officer within the police force in which the investigation or operation takes place, where the authorising officer considers that conflicts might arise.

Authorisation procedures

7.9 Authorisations will generally be given in writing by the authorising officer. However, in urgent cases, they may be given orally by the authorising officer. 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. This should be done by the person with whom the authorising officer spoke.

7.10 If the authorising officer is absent then as provided for in section 5(4) of the Police (Scotland) Act 1967, an authorisation can be given in writing or, in urgent cases, orally by the designated deputy.

7.11 Where, however, in an urgent case, it is not reasonably practicable for the designated deputy to consider an application, then written authorisation may be given by an Assistant Chief Constable (other than a designated deputy).

7.12 Applications to the authorising officer for authorisation must be made in writing by a police officer (within the terms of section 93(3) of the 1997 Act) and should specify:

• the identity or identities of those to be targeted (where known);
• the property which the entry or interference with will affect;
• the identity of individuals and/or categories of people, where known, who are likely to be affected by collateral intrusion;
• details of the offence planned or committed;
• details of the intrusive surveillance involved;
• how the authorisation criteria (as set out in paragraphs 7.6 and 7.7) have been met;
• any action which may be necessary to retrieve any equipment used in the surveillance;
• in case of a renewal, the results obtained so far, or a full explanation of the failure to obtain any results; and
• whether an authorisation was given or refused, by whom and the time and date.

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

• the reasons why the authorising officer or designated deputy considered the case so urgent that an oral instead of a written authorisation was given; and
• the reasons why (if relevant) the person granting the authorisation did not consider it reasonably practicable for the application to be considered by the senior authorising officer or the designated deputy.

7.14 Where the application is oral, the information referred to above should be recorded in writing by the applicant as soon as reasonably practicable.

Notifications to Surveillance Commissioners

7.15 Where a person gives, renews or cancels an authorisation, they must, as soon as is reasonably practicable, give notice of it in writing to a Surveillance Commissioner, in accordance with arrangements made by the Chief Surveillance Commissioner. In urgent cases which would otherwise have required the approval of a Surveillance Commissioner, the notification must specify the grounds on which the case is believed to be one of urgency.

7.16 There may be cases which become urgent after approval has been sought but before a response has been received from a Surveillance Commissioner. In such a case, the authorising officer should notify the Surveillance Commissioner that the case is urgent (pointing out that it has become urgent since the previous notification). In these cases, the authorisation will take effect immediately.

7.17 Notifications to Surveillance Commissioners in relation to the authorisation, renewal and cancellation of authorisations in respect of entry on or interference with property should be in accordance with the requirements of The Police Act 1997 (Notifications of Authorisations etc) Order 1998; SI No. 3241.

Duration of authorisations

7.18 Written authorisations given by authorising officers will cease to have effect at the end of a period of three months beginning with the day on which they took effect. In cases requiring prior approval by a Surveillance Commissioner this means from the time the Surveillance Commissioner has approved the authorisation and the person who gave the authorisation has been notified. This means that the approval will not take effect until the notice has been received in the office of the person who granted the authorisation within the relevant police force. In cases not requiring prior approval, this means from the time the authorisation was given.

7.19 Oral authorisations given in urgent cases by:

• authorising officers; or
• designated deputies

and written authorisations given by:

• Assistant Chief Constables (other than a designated deputy).

will cease at the end of the period of seventy-two hours beginning with the time when they took effect.

Renewals

7.20 If at any time before the day on which an authorisation expires the authorising officer or, in his absence, the designated deputy considers the authorisation should continue to have effect for the purpose for which it was issued, the authorisation may be renewed in writing for a period of three months beginning with the day on which the authorisation would otherwise have ceased to have effect. Authorisations may be renewed more than once, if necessary, and the renewal should be recorded on the authorisation record (see paragraph 7.27).

7.21 Commissioners must be notified of renewals of authorisations. The information to be included in the notification is set out in The Police Act 1997 (Notifications of Authorisations etc) Order 1998; SI No: 3241.

7.22 If, at the time of renewal, the criteria in paragraph 7.30 exist, then the approval of a Surveillance Commissioner must be sought before the renewal can take effect. The fact that the initial authorisation required the approval of a Commissioner before taking effect does not mean that its renewal will automatically require such approval. It will only do so if, at the time of the renewal, it falls into one of the categories requiring approval (and is not urgent).

Reviews

7.23 Authorising officers should regularly review authorisations to assess the need for the entry on or interference with property or with wireless telegraphy to continue. This should be recorded on the authorisation record (see paragraph 7.27). The authorising officer should determine how often a review should take place when giving an authorisation. This should be as frequently as is considered necessary and practicable and at no greater interval than one month. Particular attention is drawn to the need to review authorisations and renewals regularly and frequently where the entry on or interference with property or with wireless telegraphy provides access to confidential information or involves collateral intrusion.

Cancellations

7.24 The senior authorising officer who granted or last renewed the authorisation must cancel it must apply for its cancellation, if that officer is satisfied that the authorisation no longer meets the criteria upon which it was authorised. Where the senior authorising officer is no longer available, this duty will fall on the person who has taken over the role of senior authorising officer or the person who is acting as the senior authorising officer (see The Regulation of Investigatory Powers (Cancellation of Authorisations) (Scotland) Regulations 2000; SSI No. 207).

7.25 The Surveillance Commissioners must be notified of cancellations of authorisations. The information to be included in the notification is set out in The Police Act 1997 (Notifications of Authorisations etc) Order 1998; SI No. 3421.

7.26 The Surveillance Commissioners have the power to cancel an authorisation if they are satisfied that, at any time after an authorisation was given or renewed, there were no reasonable grounds for believing the matters set out in paragraphs 7.6 and 7.7 above. In such circumstances, a Surveillance Commissioner may order the destruction of records, in whole or in part, other than any that are required for pending criminal or civil proceedings.

Authorisation record

7.27 An authorisation record should be created which records:

• the time and date when an authorisation is given;
• whether an authorisation is in written or oral form;
• the time and date when it was notified to a Surveillance Commissioner; and
• the time and date when the Surveillance Commissioner notified his approval (where appropriate).

The authorisation record should also record:

• every occasion when entry on or interference with property or with wireless telegraphy has occurred;
• the result of periodic reviews of the authorisation;
• the date of every renewal; and
• it should record the time and date when any instruction was given by the authorising officer to cease the interference with property or with wireless telegraphy.

Ceasing of entry on or interference with property or with wireless telegraphy

7.28 Once an authorisation or renewal expires or is cancelled or quashed, the authorising officer must immediately instruct those carrying out the surveillance to cease all the actions authorised for the entry on or interference with property or with wireless telegraphy. The time and date when such an instruction was given should be recorded on the authorisation record (see paragraph 7.27).

Retrieval of equipment

7.29 Where a Surveillance Commissioner quashes or cancels an authorisation or renewal, that Surveillance Commissioner will, if there are reasonable grounds for doing so, order that the authorisation remain effective for a specified period, to enable officers to retrieve anything left on the property by virtue of the authorisation. The Surveillance Commissioner can only do so if the authorisation or renewal makes provision for this. A decision by the Surveillance Commissioner not to give such an order can be the subject of an appeal to the Chief Surveillance Commissioner.

SPECIAL RULES

Cases requiring prior approval of a Surveillance Commissioner

7.30 In certain cases, an authorisation for entry on or interference with property will not take effect until a Surveillance Commissioner has approved it and the notice has been received in the office of the person who granted the authorisation within the relevant police force . These are cases where the person giving the authorisation is satisfied that:

• any of the property specified in the authorisation:
  • is used wholly or mainly as a dwelling or as a bedroom in a hotel; or
  • constitutes office premises; or
• the action authorised is likely to result in any person acquiring knowledge of:
  • matters subject to legal privilege;
  • confidential personal information; or
  • confidential journalistic material.

7.31 Office premises are defined as any building or part of a building whose sole or principal use is as an office or for office purposes (which means purposes of administration, clerical work, handling money and telephone or telegraph operation).

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