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;
• “ IPA” means the Investigatory Powers Act 2016;
• “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;
• “2016 Order” means the Regulation of Investigatory Powers (Prescriptions of Ranks and Positions) (Scotland) Order 2016;
• “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 provides guidance on when an authorisation should be sought, the procedures that must be followed before activity takes place, and on the examination, retention, destruction and disclosure of any information obtained by surveillance activity. The code also provides guidance on entry on, or interference with, property or with wireless telegraphy by public authorities under Part III of the 1997 Act.

1.3. This code is primarily intended for use by the public authorities able to authorise activity under RIP(S)A and Part III of the 1997 Act. It will also allow other interested persons to understand the procedures to be followed by those public authorities. This code is publicly available and should be readily accessible by members of any relevant public authority ^[2] seeking to authorise covert surveillance or to authorise entry on, or interference with, property or with wireless telegraphy.

1.4. 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 the 1997 Act relates to the Police Service or the PIRC). This code replaces the previous code of practice issued in 2015. References in this code to provisions in the IPA, including equipment interference, oversight by the Investigatory Powers Commissioner ( IPC) and new provisions on combined warrants are applicable with effect from the commencement of those provisions. Until that time, the previous arrangements set out in the code of practice issued in 2015 should be applied.

1.5. RIP(S)A provides that all codes of practice 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, including the Investigatory Powers Tribunal ( IPT) established under RIPA, or to the IPC responsible for overseeing the powers conferred by RIP(S)A and the 1997 Act, it may take the provisions of the codes of practice 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.

1.6. Examples are included in this code to assist with the illustration and interpretation of certain provisions. Examples 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. The examples should not be taken as confirmation that any particular public authority undertakes the activity described.

1.7. For the avoidance of doubt, the duty to have regard to the code when exercising functions to which the code relates exist regardless of any contrary content of a public authority’s internal advice or guidance.

Personal data

1.8. Personal data is data which relates to a living individual who can be identified from that data or from that data and other information which is in the possession of, or is likely to come into the possession of, the data controller. It is likely that much of the private information obtained by the methods described in this code will be personal data if it is recorded by the relevant agency. Where this is the case, data protection law will apply to the processing of that personal data until it is securely destroyed.