Covert surveillance and property interference: code of practice

5. Authorisation procedures for directed surveillance

Authorisation criteria

5.1. Under section 6 of RIP(S)A an authorisation for directed surveillance may be granted by an authorising officer where he believes that the authorisation is necessary in the circumstances of the particular case on the grounds that it is:

a) for the purpose of preventing or detecting^[27] crime or of preventing disorder;
b) in the interests of public safety;
c) for the purpose of protecting public health^[28];

5.2. The authorising officer must also believe that the surveillance is proportionate to what it seeks to achieve (see 3.3-3.12).

Relevant public authorities

5.3. The public authorities entitled to authorise directed surveillance (including to acquire confidential information, with specified higher authorisation), are listed in section 8 of RIP(S)A.

Authorisation procedures

5.4. Responsibility for authorising the carrying out of directed surveillance rests with the authorising officer and requires the personal authority of the authorising officer. The 2010 Order designates the authorising officer for each different public authority and the officers entitled to act in urgent cases.

5.5. An authorising officer must give authorisations in writing, except that in urgent cases they may be given orally by the authorising officer or in writing by the officer entitled to act in urgent cases. In such cases, a record that the authorising officer has expressly authorised the action should be recorded in writing by both the authorising officer and the applicant as soon as is reasonably practicable, together with the information detailed below.

5.6. 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 generally to be regarded as urgent where the need for an authorisation has been neglected or the urgency is of the authorising officer's or applicant's own making.

5.7. Authorising officers should not normally be responsible for authorising 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 or for security reasons. Where an authorising officer authorises such an investigation or operation the centrally retrievable record of authorisations (see Chapter 8) should highlight this and the attention of a Surveillance Commissioner or Inspector should be invited to it during his next inspection.

Information to be provided in applications for authorisation

5.8. A written application for a directed surveillance authorisation 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 RIP(S)A;
• the nature of the surveillance;
• the identities, where known, of those to be the subject of the surveillance;
• a summary of the intelligence case and appropriate unique intelligence references where applicable;
• 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 reasons why the surveillance is considered proportionate to what it seeks to achieve; and,
• the level of authority required (or recommended where that is different) for the surveillance.

5.9. A subsequent record of whether authorisation was given or refused, by whom, and the time and date this happened should also be recorded.

5.10. In urgent cases, the above information may be supplied orally. In such cases the authorising officer and applicant, where applicable, should record the following information in writing, as soon as is reasonably practicable (it is not necessary to record further detail):

• the identities of those subject to surveillance;
• the nature of the surveillance as defined at 1.9;
• the reasons why the authorising officer considered the case so urgent that an oral instead of a written authorisation was given; and,
• where the officer entitled to act in urgent cases has given written authority, the reasons why it was not reasonably practicable for the application to be considered by the authorising officer should also be recorded.

Duration of authorisations

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

5.12. 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.

Renewals

5.13. If, at any time before an authorisation for directed surveillance 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, he may renew it 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. The renewal will take effect at the time at which the authorisation would have ceased to have effect but for the renewal.

5.14. 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.

5.15. All applications for the renewal of a directed surveillance authorisation should record (at the time of application, or when reasonably practicable in the case of urgent cases approved orally):

• whether this is the first renewal or every occasion on which the authorisation has been renewed previously;
• any significant changes to the information in the initial application;
• the reasons why the authorisation for directed surveillance should continue;
• 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.

5.16. Authorisations may be renewed more than once, if necessary and provided they continue to meet the criteria for authorisation. The details of any renewal should be centrally recorded (see Chapter 8).

Cancellations

5.17. During a review, the authorising officer who granted or last renewed the authorisation may amend specific aspects of the authorisation, for example, to cease surveillance against one of a number of named subjects or to discontinue the use of a particular tactic. They must cancel the authorisation if satisfied that the directed surveillance as a whole no longer meets the criteria upon which it was authorised. Where the original 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 2010 Order).

5.18. 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 the authorisation was cancelled should be centrally recorded and documentation of any instruction to cease surveillance should be retained (see Chapter 8). There is no requirement for any further details to be recorded when cancelling a directed surveillance authorisation. However effective practice suggests that a record should be retained detailing the product obtained from the surveillance and whether or not objectives were achieved.

Foreign surveillance teams operating in UK

5.19. The provisions of section 76A of RIPA as inserted by the Crime (International Co-Operation) Act 2003 provide for foreign surveillance teams to operate in the UK, subject to the following procedures and conditions.

5.20. Where a foreign police or customs officer^[29], who is conducting directed or intrusive surveillance activity outside the UK^[30], needs to enter the UK for the purposes of continuing that surveillance, and where it is not reasonably practicable for a UK officer^[31] to carry out the surveillance under the authorisation of Part II of RIPA (or of RIP(S)A), the foreign officer must notify a person designated by the Director General of the National Crime Agency immediately after entry to the UK and shall request (if this has not been done already) that an application for a directed or intrusive surveillance authorisation be made under RIPA (or RIP(S)A).

5.21. The foreign officer may then continue to conduct directed or intrusive surveillance for a period of five hours beginning with the time when the officer enters the UK. The foreign officer may only carry out the surveillance, however, in places to which members of the public have or are permitted to have access, whether on payment or otherwise. The directed or intrusive surveillance authorisation, if obtained, will then authorise the foreign officers to conduct such surveillance beyond the five hour period in accordance with the general provisions of RIPA (or RIP(S)A).