Covert surveillance and property interference: code of practice

4. Legally privileged and confidential information

Overview

4.1. RIP(S)A does not provide any special protection for 'confidential information', although the 1997 Act makes special provision for certain categories of 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, communications between a Member of the Scottish Parliament (or a Member of Parliament) and another person on constituency matters, confidential personal information, or confidential journalistic material. So, for example, extra care should be taken where, through the use of surveillance, it is likely that knowledge will be acquired of communications between a minister of religion and an individual relating to the latter's spiritual welfare, or between a Member of the Scottish Parliament (or a Member of Parliament) and a constituent relating to constituency matters, or wherever matters of medical or journalistic confidentiality or matters subject to legal privilege may be involved. References to a Member of Parliament include references to Members of both Houses of the UK Parliament and the European Parliament.

4.2. Authorisations under the 1997 Act likely to result in the acquisition of knowledge of matters subject to legal privilege, confidential personal information or confidential journalistic material require (other than in urgent cases) the approval of a Surveillance Commissioner.

4.3. Authorisations for directed surveillance of legal consultations falling within the 2015 Order must comply with the enhanced authorisation regime described below. In cases where it is likely that knowledge of confidential information will be acquired, the use of covert surveillance is subject to a higher level of authorisation.

Material subject to legal privilege: introduction

4.4. Directed surveillance likely or intended to result in the acquisition of knowledge of matters subject to legal privilege may take place in circumstances covered by the 2015 Order, or in other circumstances. Similarly, property interference may be necessary in order to effect surveillance described in the 2015 Order, or in other circumstances where knowledge of matters subject to legal privilege is likely to be obtained. However, where any directed surveillance of a "legal consultation" within the meaning given by the 2015 Order takes place, the provisions of that Order apply as follows.

4.5. The 2015 Order provides that directed surveillance that is carried out in relation to anything taking place on so much of any premises specified in article 3(2) of the Order as is, at any time during the surveillance, used for the purposes of 'legal consultations' is to be treated for the purposes of RIP(S)A as intrusive surveillance.

4.6. The 2015 Order defines 'legal consultation' for these purposes. It means:

• a consultation between a professional legal adviser and that adviser's client or any person representing that client; or
• a consultation between a professional legal adviser or that adviser's client or any person representing that client and a registered medical practitioner, made in connection with, or in contemplation of, legal proceedings and for the purpose of such proceedings.

4.7. The definition of 'legal consultation' in the 2015 Order does not distinguish between legal consultations which are privileged, wholly or in part, and legal consultations which may be in furtherance of a criminal purpose are therefore not protected by any form of privilege. Covert surveillance of all legal consultations covered by the 2015 Order (whether protected by privilege or not) is to be treated as intrusive surveillance.

4.8. Where material is obtained which may contain matters subject to legal privilege legal advice should be taken to determine how that material may be used in evidential terms.

Tests to be applied when authorising or approving covert surveillance or property interference likely or intended to result in the acquisition of knowledge of matters subject to legal privilege

4.9. All applications for covert surveillance or property interference that may result in the acquisition of knowledge of matters subject to legal privilege, within the meaning given by paragraph 1.1 of this code, should state whether the covert surveillance or property interference is intended to obtain knowledge of matters subject to legal privilege.

4.10. If the covert surveillance or property interference is not intended to result in the acquisition of knowledge of matters subject to legal privilege, but it is likely that such knowledge will nevertheless be acquired during the operation, the application should identify all steps which will be taken to mitigate the risk of acquiring it. If the risk cannot be removed entirely, the application should explain what steps will be taken to ensure that any knowledge of matters subject to legal privilege which is obtained is not used in law enforcement investigations or criminal prosecutions.

4.11. Where covert surveillance or property interference is likely or intended to result in the acquisition of knowledge of matters subject to legal privilege, an authorisation shall only be granted or approved if the authorising officer, or approving Surveillance Commissioner, as appropriate, is satisfied that there are exceptional and compelling circumstances that make the authorisation necessary:

• where the surveillance or property interference is not intended to result in the acquisition of knowledge of matters subject to legal privilege, such exceptional and compelling circumstances may arise in the interests of preventing or detecting serious crime;
• where the surveillance or property interference is intended to result in the acquisition of knowledge of matters subject to legal privilege, such circumstances will arise only in a very restricted range of cases, such as where there is a threat to life or limb and the surveillance or property interference is reasonably regarded as likely to yield intelligence necessary to counter the threat.

4.12. Further, in considering any authorisation for covert surveillance or property interference likely or intended to result in the acquisition of knowledge of matters subject to legal privilege, the authorising officer and approving Surveillance Commissioner must be satisfied that the proposed covert surveillance or property interference is proportionate to what is sought to be achieved. In relation to intrusive surveillance, including surveillance to be treated as intrusive as a result of the 2015 Order, section 10(2) of RIP(S)A will apply.

4.13. Intrusive surveillance, including surveillance which is treated as intrusive as a result of the 2015 Order, or property interference likely to result in the acquisition of matters subject to legal privilege may only be authorised by authorising officers entitled to grant intrusive surveillance or property interference authorisations.

4.14. Property interference likely to result in the acquisition of such material is subject to prior approval by a Surveillance Commissioner. Intrusive surveillance, including surveillance which is treated as intrusive as a result of the 2015 Order, is subject to prior approval by a Surveillance Commissioner.

Surveillance under the 2015 Order

4.15. As noted above, the 2015 Order provides that directed surveillance that is carried out in relation to anything taking place on so much of any premises specified in article 3(2) of the Order as is, at any time during the surveillance, used for the purposes of 'legal consultations' shall be treated for the purposes of RIP(S)A as intrusive surveillance.

4.16. As a result of the 2015 Order, such surveillance cannot be undertaken without the prior approval of a Surveillance Commissioner.

4.17. The locations specified in the Order are:

(a) any premises in which persons who are serving sentences of imprisonment or detention, remanded in custody or remanded or committed for trial or sentence, may be detained;
(b) legalised police cells within the meaning of section 14(1) of the Prisons (Scotland) Act 1989;
(c) any premises in which persons may be detained under paragraph 16(1), (1A) or (2) of Schedule 2 or paragraph 2(2) or (3) of Schedule 3 to the Immigration Act 1971 or section 36(1) of the UK Borders Act 2007;
(d) any premises in which persons may be detained under Part VI of the Criminal Procedure (Scotland) Act 1995 or the Mental Health (Care and Treatment) (Scotland) Act 2003;
(e) police stations;
(f) the place of business of any professional legal adviser; and.
(g) any premises used for the sittings and business of any court, tribunal or inquiry.

4.18. Authorisations for surveillance which is to be treated as intrusive surveillance as a result of the 2015 Order shall not take effect until such time as:

(a) the authorisation has been approved by a Surveillance Commissioner; and
(b) written notice of the Surveillance Commissioner's decision to approve the authorisation has been given to the authorising officer.

Property interference under the 1997 Act likely to result in the acquisition of knowledge of matters subject to legal privilege

4.19. With the exception of urgent authorisations, where it is believed that the action authorised is likely to result in the acquisition of knowledge of matters subject to legal privilege an authorisation under the 1997 Act shall not take effect until such time as:

a) the authorisation has been approved by a Surveillance Commissioner; and
b) written notice of the Surveillance Commissioner's decision to approve the authorisation has been given to the authorising officer.

The use and handling of matters subject to legal privilege

4.20. Matters subject to legal privilege are particularly sensitive and surveillance which acquires such material may give rise to issues under Article 6 of the ECHR (right to a fair trial) as well as engaging Article 8.

4.21. Where public authorities deliberately acquire knowledge of matters subject to legal privilege, they may use that knowledge to counter the threat which led them to acquire it, but it will not be admissible in court. Public authorities should ensure that knowledge of matters subject to legal privilege, whether or not it is acquired deliberately, is kept separate from law enforcement investigations or criminal prosecutions.

4.22. In cases likely to result in the acquisition of knowledge of matters subject to legal privilege, the authorising officer or Surveillance Commissioner may require regular reporting so as to be able to decide whether the authorisation should continue. In those cases where legally privileged material has been acquired and retained, the matter should be reported to the authorising officer by means of a review and to the Surveillance Commissioner or Inspector during his next inspection (at which the material should be made available if requested).

4.23. A substantial proportion of the communications between a lawyer and his client(s) may be privileged. Therefore, in any case where a lawyer is the subject of an investigation or operation, authorising officers should consider whether the special safeguards outlined in this chapter apply. Any material which has been retained from any such investigation or operation should be notified to the Surveillance Commissioner or Inspector during his next inspection and made available on request.

4.24. Where there is any doubt as to the handling and dissemination of knowledge of matters 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 information takes place. Similar advice should also be sought where there is doubt over whether information is not privileged because it forms part of a communication intended to further a criminal purpose. The retention of privileged material, or its dissemination to an outside body, should be accompanied by a clear warning that it is privileged. 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 to which the information relates. Any dissemination of privileged material to an outside body should be notified to the Surveillance Commissioner or Inspector during his next inspection.

Confidential information

4.25. Special consideration must also be given to authorisations that involve confidential personal information, confidential constituent information and confidential journalistic material. Where such material has been acquired and retained, the matter should be reported to the Surveillance Commissioner or Inspector during his next inspection and the material be made available to him if requested.

4.26. Confidential personal information is information held in confidence relating to the physical or mental health or spiritual counselling of a person (whether living or dead) who can be identified from it.^[26] 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 include consultations between a health professional and a patient, or information from a patient's medical records.

4.27. Confidential constituent information is information relating to communications between, for example, a Member of the Scottish Parliament (or a Member of Parliament) and a constituent in respect of constituency matters. Again, such information 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.

4.28. 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.

4.29. Where there is any doubt as to the handling and dissemination of confidential information, advice should be sought from a legal adviser within the relevant public authority before any further dissemination of the material takes place.