Covert surveillance and property interference: code of practice

Footnotes

1. SG/2017/282

2. Being one of those listed under section 8(3) of RIP(S)A and specified in orders made by the Scottish Ministers under section 8(1).

3. See section 31(2) of RIP(S)A.

4. As defined in section 1(8)(a) of RIP(S)A.

5. See sections 1(2) and 1 (3) of RIP(S)A

6. See section 31 of RIP(S)A for full definition of residential premises and private vehicles, and note that the 2015 Order identifies a new category of surveillance to be treated as intrusive surveillance.

7. See section 1(2) of RIP(S)A

8. See section 1(9) of RIP(S)A.

9. Family should be treated as extending beyond the formal relationships created by marriage or civil partnership.

10. Note also that a person in police custody will have certain expectations of privacy.

11. The fact that a directed surveillance authorisation is available does not mean it is required. There may be other lawful means of obtaining personal data which do not involve directed surveillance. In addition, all lawful means of obtaining personal data must comply with data protection law – see paragraph 1.8.

12. The use of such devices is also likely to require an authorisation for property interference under the 1997 Act. See Chapter 7.

13. See section 1(3) of RIP(S)A

14. The 2015 Order makes provision for surveillance carried out on premises when those premises are used for a legal consultation

15. See section 31(1) of RIP(S)A

16. See section 31(9) of RIP(S)A

17. See section 31(10) of RIP(S)A

18. See section 31(1) and 31(9) of RIP(S)A.

19. See section 1(5) of RIP(S)A.

20. All lawful means of obtaining personal data must comply with data protection law – see paragraph 1.8.

21. For further information see www.ico.org.uk

22. For example, by virtue of cameras or signage being clearly visible.

23. https://ico.org.uk/media/for-organisations/documents/1542/cctv-code-of-practice.pdf

24. https://www.gov.uk/government/publications/surveillance-camera-code-of-practice

25. See section 31(3) of RIP(S)A.

26. http://www.ipt-uk.com/docs/IPT_A1_2013.pdf

27. See section 31(3) of RIP(S)A.

28. As defined in section 76A(10) of RIPA

29. With the lawful authority of the country or territory in which it is being carried out and in respect of a suspected crime which falls within Article 40(7) of the Schengen Convention or which is a crime for the purposes of any other international agreement to which the UK is a party and which is specified for the purposes of section 76(A) of RIPA in an Order made by the Secretary of State with the consent of the Scottish Ministers.

30. Being a member of a police force, NCA or HMRC.

31. These statutory grounds are laid out in sections 6(3) of RIP(S)A for directed surveillance; section 10(2) of RIP(S)A for intrusive surveillance; and section 93(2) of the 1997 Act for property interference. They are detailed in Chapters 5, 6 and 7 for directed surveillance, intrusive surveillance and interference with property respectively.

32. Schedule 8 of the IPA also makes separate provision for combination of warrants and authorisations. This could result in authorisation being given for conduct under the IPA, combined with RIP(S)A.

33. See section 19(2) of RIP(S)A.

34. As laid out in Chapters 5, 6 and 7 of this code.

35. The senior responsible officer should be a person holding the office, rank or position of an authorising officer within the relevant public authority.

36. Detecting crime is defined in section 31(8) of RIP(S)A and is applied to the 1997 Act by section 134 of that Act (as amended). Preventing or detecting crime goes beyond the prosecution of offenders and includes actions taken to avert, end or disrupt the commission of criminal offences.

37. This could include investigations into infectious diseases, contaminated products or the illicit sale of pharmaceuticals.

38. Serious crime is defined in section 31(6) and (7) of RIP(S)A as crime that comprises an offence for which a person who has attained the age of twenty-one and has no previous convictions could reasonably be expected to be sentenced to imprisonment for a term of three years or more, or which involves the use of violence, results in substantial financial gain or is conduct by a large number of persons in pursuit of a common purpose.

39. In this context, “person serving with the police” means a constable of the Police Service, a member of the police staff of the Police Service or a member of the staff of the Scottish Police Authority.

40. This notification shall include the information specified in the Regulation of Investigatory Powers (Notification of Authorisations etc.) (Scotland) Order 2000; SSI No: 340.

41. The IPA provides that a person may not, for the purpose of obtaining communications, private information or equipment data, make an application under section 93 of the Police Act 1997 for authorisation to engage in conduct which could be authorised by a targeted equipment interference warrant under part 5 of the IPA if the applicant considers that the conduct would (unless done with lawful authority) constitute one or more offences under sections 1 to 3A of the Computer Misuse Act 1990

42. As amended by the Police and Fire Reform (Scotland) Act 2012

43. An authorising officer in a public authority other than the Security Service shall not issue an authorisation under Part III of the 1997 Act where the investigation or operation falls within the responsibilities of the Security Service. Where any doubt exists a public authority should confirm with the Security Service whether or not the investigation is judged to fall within Security Service responsibilities before seeking an authorisation under Part III of the 1997 Act.

44. SI 1998/3241

45. Office premises are defined as any building or part of a building whose sole or principal use is as an office or for office purposes (which means purposes of administration, clerical work, handling money and telephone or telegraph operation).

46. See section 5(2) of RIP(S)A.

47. ‘A members of a relevant legislature’ means a member of the Scottish Parliament, a member of either House of Parliament, a member of the National Assembly for Wales, a member of the Northern Ireland Assembly, or a member of the European Parliament elected for the UK.

48. See section 91(10) of the 1997 Act and section 2(10) of RIP(S)A

49. For example, by taking reasonable steps to make the data unavailable or inaccessible to authorised persons. No further steps are required, such as physical destruction of hardware.

50. See Annex A of this code

51. Reference to the Chief Constable includes any other senior officer of the Police Service of Scotland who is designated by the Chief Constable for this purpose