Covert surveillance and property interference: code of practice

1. Introduction

Definitions

1.1. In this code:

• "RIP(S)A" means the Regulation of Investigatory Powers (Scotland) Act 2000;
• "1997 Act" means the Police Act 1997;
• "RIPA" means the Regulation of Investigatory Powers Act 2000;
• "2010 Order" means the Regulation of Investigatory Powers (Prescription of Offices, etc. and Specification of Public Authorities) (Scotland) Order 2010;
• "2015 Order" means the Regulation of Investigatory Powers (Modification of Authorisation Provisions: Legal Consultations) (Scotland) Order 2015;
• "Police Service" means the Police Service of Scotland;
• "PIRC" means the Police Investigations and Review Commissioner;
• "matters subject to legal privilege" means-
  (a) in relation to authorisations for property interference, matters to which subsection (2), (3) or (4) of section 98 of the 1997 Act applies; or
  (b) in relation to authorisations for covert surveillance-
  
  (i) communications between a professional legal adviser and the adviser's client; or
  (ii) communications made in connection with or in contemplation of legal proceedings and for the purposes of those proceedings; and
• certain terms are defined in the Glossary at the end of this code.

Background

1.2. This code of practice provides guidance on the use by public authorities of RIP(S)A to authorise covert surveillance that is likely to result in the obtaining of private information about a person. The code also provides guidance on entry on, or interference with, property or with wireless telegraphy by public authorities under Part III of the Police Act 1997.

1.3. This code is issued pursuant to section 24 of RIP(S)A, which stipulates that the Scottish Ministers shall issue one or more codes of practice in relation to the powers and duties in RIP(S)A and Part III of the 1997 Act in so far as relating to the Police Service or the PIRC. This code replaces the previous code of practice issued in 2002.

1.4. This code is publicly available and should be readily accessible by members of any relevant public authority^[1] seeking to use RIP(S)A to authorise covert surveillance that is likely to result in the obtaining of private information about a person or Part III of the 1997 Act to authorise entry on, or interference with, property or with wireless telegraphy.

1.5. Where covert surveillance activities are unlikely to result in the obtaining of private information about a person, or where there is a separate legal basis for such activities, neither RIP(S)A nor this code need apply.^[2]

Effect of code

1.6. RIP(S)A provides that all codes of practice relating to RIP(S)A are admissible as evidence in criminal and civil proceedings. If any provision of this code appears relevant to any court or tribunal considering any such proceedings, or to the Investigatory Powers Tribunal established under RIPA, or to one of the Surveillance Commissioners responsible for overseeing the powers conferred by RIP(S)A, it must be taken into account. Public authorities may also be required to justify, with regard to this code, the use or granting of authorisations in general or the failure to use or grant authorisations where appropriate.

1.7. Examples are included in this code to assist with the illustration and interpretation of certain provisions. Examples are not provisions of the code, but are included for guidance only. It is not possible for theoretical examples to replicate the level of detail to be found in real cases. Consequently, authorising officers should avoid allowing superficial similarities with the examples to determine their decisions and should not seek to justify their decisions solely by reference to the examples rather than to the law and the provisions of this code.

Surveillance activity to which this code applies

1.8. RIP(S)A provides for the authorisation of covert surveillance by public authorities where that surveillance is likely to result in the obtaining of private information about a person.

1.9. Surveillance, for the purpose of RIP(S)A, includes monitoring, observing or listening to persons, their movements, conversations or other activities and communications. It may be conducted with or without the assistance of a surveillance device and includes the recording of any information obtained.^[3]

1.10. Surveillance is covert if, and only if, it is carried out in a manner calculated to ensure that any persons who are subject to the surveillance are unaware that it is or may be taking place.^[4]

1.11. Specifically, covert surveillance may be authorised under RIP(S)A if it is either intrusive or directed:

• intrusive surveillance is covert surveillance that is carried out in relation to anything taking place on residential premises or in any private vehicle (and that involves the presence of an individual on the premises or in the vehicle or is carried out by a means of a surveillance device);^[5]
• directed surveillance is covert surveillance that is not intrusive but is carried out in relation to a specific investigation or operation in such a manner as is likely to result in the obtaining of private information about any person (other than by way of an immediate response to events or circumstances such that it is not reasonably practicable to seek authorisation under RIP(S)A).

1.12. Chapter 2 of this code provides a fuller description of directed and intrusive surveillance, along with definitions of terms, exceptions and examples.

Basis for lawful surveillance activity

1.13. The Human Rights Act 1998 gave effect in UK law to the rights set out in the European Convention on Human Rights (ECHR). Some of these rights are absolute, such as the prohibition on torture, while others are qualified, meaning that it is permissible for the state to interfere with those rights if certain conditions are satisfied. Amongst the qualified rights is a person's right to respect for their private and family life, home and correspondence, as provided for by Article 8 of the ECHR. It is Article 8 that is most likely to be engaged when public authorities seek to obtain private information about a person by means of covert surveillance. Article 6 of the ECHR, the right to a fair trial, is also relevant where a prosecution follows the use of covert techniques, particularly where the prosecution seek to protect the use of those techniques through disclosure procedures.

1.14. RIP(S)A provides a statutory framework under which covert surveillance activity can be authorised and conducted compatibly with Article 8. Where directed surveillance would not be likely to result in the obtaining of any private information about a person, no interference with Article 8 rights occurs and an authorisation under RIP(S)A is therefore not appropriate.

1.15. Similarly, an authorisation under RIP(S)A is not required if a public authority has another clear legal basis for conducting covert surveillance likely to result in the obtaining of private information about a person.

1.16. Chapter 2 of this code provides further guidance on what constitutes private information and examples of activity for which authorisations under RIP(S)A are or are not required.

Relevant public authorities

1.17. Only certain public authorities may apply for authorisations under RIP(S)A or the 1997 Act:

• Directed surveillance applications may only be made by those public authorities listed in or added to section 8 of RIP(S)A;
• Intrusive surveillance applications may only be made by those public authorities listed in or added to section 10(1A) of RIP(S)A;
• Applications to enter on, or interfere with, property or with wireless telegraphy may only be made (under Part III of the 1997 Act) by those public authorities listed in or added to section 93(5) of the 1997 Act.

Relationship with RIPA

1.18. RIPA is the appropriate legislation for the authorisation of surveillance which:

• will mainly take place outwith Scotland;
• will start outwith Scotland; or
• is for reserved purposes such as national security or economic wellbeing.

1.19. Where the conduct authorised is likely to take place in Scotland, authorisations should be granted under RIP(S)A unless the authorisation is being obtained by certain public authorities (see section 46 of RIPA and the Regulation of Investigatory Powers (Authorisations Extending to Scotland) Order 2009; SI No. 3403). RIP(S)A is the appropriate legislation and should be used by Scottish public authorities for all other surveillance (see paragraphs 2.9 - 2.11 in relation to the recording of telephone or other conversations).

1.20. RIPA contains provisions to allow cross border operations. An authorisation under RIP(S)A will allow Scottish public authorities to conduct surveillance anywhere within the UK for a period of up to three weeks at a time (see section 76(2) of RIPA). This three week period will restart each time the border is crossed, provided it remains within the original validity period of the authorisation.

1.21. RIPA authorises surveillance operations in Scotland by public authorities (listed in Schedule 1 to RIPA) other than those specified in section 8(3) of RIP(S)A.

1.22. This code of practice applies in relation to authorisations granted under RIP(S)A. A separate code of practice applies in relation to authorisations granted under RIPA.

International considerations

1.23. Authorisations under RIPA are appropriate for all directed and intrusive surveillance operations in overseas areas under the jurisdiction of the UK, such as UK Embassies, military bases and detention facilities.

1.24. Under the provisions of section 76A of RIPA, as inserted by the Crime (International Co-Operation) Act 2003, foreign surveillance teams may operate in the UK subject to certain conditions. See Chapter 5 (Authorisation procedures for directed surveillance) for detail.