Covert surveillance and property interference: code of practice

9. Handling of material and use of material as evidence

Use of material as evidence

9.1. Subject to the provisions in Chapter 4 of this Code, material obtained through directed or intrusive surveillance, or entry on, or interference with, property or wireless telegraphy, may be used as evidence in criminal proceedings. The admissibility of evidence is governed primarily by the common law and is impacted by the Human Rights Act 1998.

9.2. Any decisions by a Surveillance Commissioner in respect of granting prior approval for intrusive surveillance activity or entry on, or interference with, property or with wireless telegraphy, shall not be subject to appeal or be liable to be questioned in any court.^[42]

Retention and destruction of material

9.3. Each public authority must ensure that arrangements are in place for the secure handling, storage and destruction of material obtained through the use of directed or intrusive surveillance or property interference. Authorising officers, through their relevant Data Controller, must ensure compliance with the appropriate data protection requirements under the Data Protection Act 1998 and any relevant codes of practice produced by individual authorities relating to the handling and storage of material.

9.4. Where the product of surveillance or interference with property or wireless telegraphy could be relevant to pending or future criminal or civil proceedings, it should be retained in accordance with established disclosure requirements for a suitable further period, commensurate to any subsequent review.

9.5. There is nothing in RIP(S)A or the 1997 Act which prevents material obtained under directed or intrusive surveillance or property interference authorisations from being used to further other investigations.

Law enforcement agencies

9.6. In the cases of the law enforcement agencies, particular attention is drawn to the requirements of Part 6 of the Criminal Justice and Licensing (Scotland) Act 2010. This requires that material which is obtained in the course of a criminal investigation must be provided to the prosecutor.