Covert surveillance and property interference: code of practice

7. Authorisation procedures for property interference

General basis for lawful activity

7.1. Authorisations under Part III of the 1997 Act should be sought wherever members of the Police Service or the PIRC conduct entry on, or interference with, property or with wireless telegraphy that would be otherwise unlawful.

7.2. For the purposes of this chapter, "property interference" shall be taken to include entry on, or interference with, property or with wireless telegraphy.

7.3. In many cases an operation using covert techniques may involve both directed or intrusive surveillance and property interference. This can be authorised as a combined authorisation, although the criteria for authorisation of each activity must be considered separately (see 3.12-3.14, on combined authorisations).

Example: The use of a surveillance device for providing information about the location of a vehicle may involve some physical interference with that vehicle as well as subsequent directed surveillance activity. Such an operation could be authorised by a combined authorisation for property interference (under Part III of the 1997 Act) and, where appropriate, directed surveillance (under RIP(S)A). In this case, the necessity and proportionality of the property interference element of the authorisation would need to be considered by the appropriate authorising officer separately to the necessity and proportionality of obtaining private information by means of the directed surveillance.

7.4. A property interference authorisation is not required for entry (whether for the purpose of covert recording or for any other legitimate purpose) into areas open to the public in shops, bars, restaurants, hotel foyers, blocks of flats or any other premises to which, with the implied consent of the occupier, members of the public are afforded unqualified access. Nor is authorisation required for entry on any other land or premises at the invitation of the occupier. This is so whatever the purposes for which the premises are used. If consent for entry has been obtained by deception (e.g. requesting entry for a false purpose), however, an authorisation for property interference should be obtained.

Informed consent

7.5. Authorisations under the 1997 Act are not necessary where the public authority is acting with the informed consent of a person able to give permission in respect of the relevant property and actions. However, consideration should still be given to the need to obtain a directed or intrusive surveillance authorisation under RIP(S)A depending on the operation.

Example: A vehicle is fitted with a security alarm to ensure the safety of an undercover officer. If the consent of the vehicle's owner is obtained to install this alarm, no authorisation under the 1997 Act is required. However, if the owner has not provided consent, an authorisation will be required to render lawful the property interference. The fact that the undercover officer is aware of the alarm installation is not relevant to the lawfulness of the property interference.

Incidental property interference

7.6. RIP(S)A provides that no person shall be subject to any civil liability in respect of any conduct which is incidental to correctly authorised directed or intrusive surveillance activity and for which an authorisation is not capable of being granted or might not reasonably have been expected to have been sought under any existing legislation.^[36] Thus a person shall not, for example, be subject to civil liability for trespass where that trespass is incidental to properly authorised directed or intrusive surveillance activity and where an authorisation under the 1997 Act is available but might not reasonably have been expected to be sought (perhaps due to the unforeseeable nature or location of the activity).

7.7. Where an authorisation for the incidental conduct is not available (for example because the 1997 Act does not apply to the public authority in question), the public authority shall not be subject to civil liability in relation to any incidental conduct, by virtue of section 5(2) of RIP(S)A. Where, however, a public authority is capable of obtaining an authorisation for the activity, it should seek one wherever it could be reasonably expected to do so.

Example: Surveillance officers crossing an area of land covered by an authorisation under the 1997 Act are forced to temporarily and momentarily cross into neighbouring land to bypass an unforeseen obstruction, before returning to their authorised route.

Samples

7.8. The acquisition of samples, such as DNA samples, fingerprints and footwear impressions, where there is no consequent loss of or damage to property does not of itself constitute unlawful property interference. However, wherever it is necessary to conduct otherwise unlawful property interference to access and obtain these samples, an authorisation under the 1997 Act would be appropriate. An authorisation for directed or intrusive surveillance would not normally be relevant to any subsequent information, whether private or not, obtained as a result of the covert technique. Once a DNA sample, fingerprint or footwear impression has been obtained, any subsequent analysis of this information will not be surveillance as defined at section 31(2) of RIP(S)A. The appropriate lawful authority in these cases is likely to be the Data Protection Act.

Example 1: Police wish to take fingerprints from a public telephone to identify a suspected criminal who is known recently to have used the telephone. The act of taking the fingerprints would not involve any unlawful property interference so no authorisation under the 1997 Act is required. The subsequent recording and analysis of the information obtained to establish the individual's identity would not amount to surveillance and therefore would not require authorisation under RIP(S)A.

Example 2: Police intend to acquire covertly a mobile telephone used by a suspected criminal, in order to take fingerprints. In this case, the acquisition of the telephone for the purposes of obtaining fingerprints could be authorised under the 1997 Act where it would otherwise be unlawful.

Authorisations for property interference by the Police Service and PIRC

7.9. Responsibility for these authorisations rests with the authorising officer as defined in section 93(5) of the 1997 Act^[37]. Authorisations require the personal authority of the authorising officer.

7.10. 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 believe that:

• it is necessary for the action specified to be taken for the purpose of preventing or detecting serious crime^[38]; and
• that the taking of the action is proportionate to what the action seeks to achieve.

7.11. 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.

Collaborative working and regional considerations

7.12. The Chief Constable of the Police Service (or a designated senior officer) may only grant an authorisation for property interference on an application by a constable of the Police Service. The PIRC may only grant such an authorisation on an application by one of the PIRC's staff officers.

7.13. Authorisations for the Police Service and PIRC may only be given for property interference within Scotland (see paragraphs 3.18 and 3.19).

7.14. 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 the 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 in the Police Service and PIRC should consult a senior officer within the respective organisation in which the investigation or operation takes place where the authorising officer considers that conflicts might arise. The Chief Constable of the Police Service of Northern Ireland should be informed of any surveillance operation undertaken by another law enforcement agency which involves its officers maintaining (including replacing) or retrieving equipment in Northern Ireland.

Authorisation procedures

7.15. Authorisations will generally be given in writing by the authorising officer.

Information to be provided in applications

7.16. Applications to the authorising officer for the granting or renewal of an authorisation must be made in writing (unless urgent) by a police officer or PIRC officer and should specify:

• the identity or identities, where known, of those who possess the property that is to be subject to the interference;
• sufficient information to identify the property subject to entry or interference;
• the nature and extent of the proposed interference;
• the details of any collateral intrusion, including the identity of individuals and/or categories of people, where known, who are likely to be affected, and why the intrusion is justified;
• details of the offence suspected or committed;
• how the authorisation criteria (as set out above) have been met;
• any action which may be necessary to maintain any equipment, including replacing it;
• any action which may be necessary to retrieve any equipment;
• 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 on which this happened.

Notifications to Surveillance Commissioners

7.17. Where a person gives, renews or cancels an authorisation in respect of entry on or interference with property or with wireless telegraphy, he must, as soon as is reasonably practicable, give notice of it in writing to a Surveillance Commissioner, where relevant, 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.

7.18. Notifications to Surveillance Commissioners in relation to the granting, 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.

Cases requiring prior approval of a Surveillance Commissioner

7.19. 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 of approval has been received in the office of the person who granted the authorisation within the relevant force or organisation. These are cases where the person giving the authorisation believes 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^[39]; 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.

Duration of authorisations

7.20. Written authorisations in respect of entry on or interference with property or with wireless telegraphy 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. So an authorisation given at 09.00 on 12 February will expire on 11 May. (Authorisations (except those lasting for 72 hours) will cease at 23.59 on the last day).

7.21. In cases requiring prior approval, the duration of an authorisation is calculated from the time at which the person who gave the authorisation was notified that the Surveillance Commissioner had approved it. This can be done by presenting the authorising officer with the approval decision page to note in person or if the authorising officer is unavailable, sending the written notice by auditable electronic means.

Renewals

7.22. If at any time before the time and day on which an authorisation expires the authorising officer considers the authorisation should continue to have effect for the purpose for which it was issued, he may renew it 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 details of the renewal should be centrally recorded (see Chapter 8).

7.23. Where relevant, the Surveillance 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.

7.24. If, at the time of renewal, criteria exist which would cause an authorisation to require prior approval by a Surveillance Commissioner, 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 Surveillance 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 an urgent case).

Cancellations

7.25. The senior authorising officer who granted or last renewed the authorisation must cancel it if he 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 authorising officer or the person who is acting as the senior authorising officer (see the Regulation of Investigatory Powers (Cancellation of Authorisations) (Scotland) Order 2002; SSI No: 207).

7.26. Following the cancellation of the authorisation, the Surveillance Commissioners must be notified of the cancellation. 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.

7.27. 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 that it should subsist. 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.

Retrieval of equipment

7.28. Because of the time it can take to remove equipment from a person's property it may also be necessary for an authorisation to make clear that it also permits the retrieval of anything left on property following completion of the intended action. The notification to Surveillance Commissioners of the authorisation should include reference to the need to remove the equipment and, where possible, a timescale for removal.

7.29. Where a Surveillance Commissioner quashes or cancels an authorisation or renewal, he 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.

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

7.30. Once an authorisation or renewal expires or is cancelled or quashed, the authorising officer must immediately give an instruction 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 centrally retrievable for at least three years (see Chapter 8).