Covert surveillance and property interference: code of practice

2. Activity by public authorities to which this code applies

2.1 RIP(S)A provides for the authorisation of covert surveillance by public authorities where that surveillance is likely to result in the obtaining of private information about a person.

2.2 Surveillance, for the purpose of RIP(S)A, includes monitoring, observing or listening to persons, their movements, conversations or other activities and communications. It may be conducted with or without the assistance of a surveillance device and includes the recording of any information obtained. ^[3]

2.3 Surveillance is covert if, and only if, it is carried out in a manner calculated to ensure that any persons who are subject to the surveillance are unaware that it is or may be taking place ^[4] .

2.4 Specifically, covert surveillance may be authorised under RIP(S)A if it is either intrusive or directed ^[5] :

• intrusive surveillance is covert surveillance that is carried out in relation to anything taking place on residential premises or in any private vehicle (and that involves the presence of an individual on the premises or in the vehicle or is carried out by means of a surveillance device) ^[6] ;
• directed surveillance is covert surveillance that is not intrusive but is carried out in relation to a specific investigation or operation in such a manner as is likely to result in the obtaining of private information about any person (other than by way of an immediate response to events or circumstances such that it is not reasonably practicable to seek authorisation under RIP(S)A).

2.5 Chapters 5 and 6 of this code provide a fuller description of directed and intrusive surveillance, along with definitions of terms, exceptions and examples. Surveillance carried out solely as part of a targeted equipment interference warrant under the IPA does not require a separate authorisation under RIP(S)A (see paragraphs 2.19 - 2.20 below).

Interference with property and wireless telegraphy

2.6 Part III of the 1997 Act provides for the authorisation of public authorities to enter on or interfere with property or with wireless telegraphy. Chapter 7 of this code provides a fuller description of such authorisations and the interaction with targeted equipment interference warrants provided for in the IPA.

Basis for lawful surveillance activity

2.7 The Human Rights Act 1998 gave effect in UK law to the rights set out in the European Convention on Human Rights ( ECHR). Some of these rights are absolute, such as the prohibition on torture, while others are qualified, meaning that it is permissible for the state to interfere with those rights if certain conditions are satisfied. Amongst the qualified rights is a person’s right to respect for their private and family life, home and correspondence, as provided for by Article 8 of the ECHR. It is Article 8 that is most likely to be engaged when public authorities seek to obtain private information about a person by means of covert surveillance. Article 6 of the ECHR, the right to a fair trial, is also relevant where a prosecution follows the use of covert techniques, particularly where the prosecution seek to protect the use of those techniques through disclosure procedures.

2.8 RIP(S)A and Part III of the 1997 Act provide a statutory framework under which covert surveillance activity can be authorised and conducted compatibly with Article 8. Where covert surveillance activities are unlikely to result in the obtaining of any private information about a person, no interference with Article 8 rights occurs and an authorisation under RIP(S)A is therefore not applicable and this code does not apply. It should be assumed that intrusive surveillance will always result in the obtaining of private information.

2.9 Similarly, an authorisation under RIP(S)A is not required if a public authority has another clear legal basis for conducting covert surveillance likely to result in the obtaining of private information about a person.

2.10 Chapter 3 of this code provides further guidance on what constitutes private information and examples of activity for which authorisations under RIP(S)A are or are not provided for. Similarly, chapter 7 of this code provides examples of activity for which an authorisation under the 1997 Act is not available.

Relevant public authorities

2.11 Only certain public authorities may apply for authorisations under RIP(S)A or the 1997 Act:

• directed surveillance applications may only be made by those public authorities listed in or added to those listed in section 8 of RIP(S)A;
• intrusive surveillance applications may only be made by those public authorities listed in section 10(1A) of RIP(S)A;
• applications to enter on, or interfere with, property or with wireless telegraphy may only be made (under Part III of the 1997 Act) by those public authorities listed in section 93(5) of the 1997 Act.

Relationship with RIPA

2.12 RIPA is the appropriate legislation for the authorisation of surveillance which:

• will mainly take place outwith Scotland;
• will start outwith Scotland; or
• is for reserved purposes such as national security or economic wellbeing.

2.13 Where the conduct authorised is likely to take place in Scotland, authorisations should be granted under RIP(S)A unless the authorisation is being obtained by certain public authorities (see section 46 of RIPA and the Regulation of Investigatory Powers (Authorisations Extending to Scotland) Order 2007; SI No. 934). RIP(S)A is the appropriate legislation and should be used by Scottish public authorities for all other surveillance (see paragraphs 3.9 – 3.10 in relation to the recording of telephone or other conversations).

2.14 RIPA contains provisions to allow cross border operations. An authorisation under RIP(S)A will allow Scottish public authorities to conduct surveillance anywhere within the UK for a period of up to three weeks at a time (see section 76(2) of RIPA). This three week period will restart each time the border is crossed, provided it remains within the original validity period of the authorisation.

2.15 RIPA authorises surveillance operations in Scotland by public authorities (listed in Schedule 1 to RIPA) other than those specified in section 8(3) of RIP(S)A.

2.16 This code of practice applies in relation to authorisations granted under RIP(S)A. A separate code of practice applies in relation to authorisations granted under RIPA.

International considerations

2.17 Authorisations under RIPA are appropriate for all directed and intrusive surveillance operations in overseas areas under the jurisdiction of the UK, such as UK Embassies, military bases and detention facilities.

2.18 Under the provisions of section 76A of RIPA, as inserted by the Crime (International Co-Operation) Act 2003, foreign surveillance teams may operate in the UK subject to certain conditions. See Chapter 5 (Authorisation procedures for directed surveillance) for detail.

Activity to which this code does not apply

2.19 This code does not provide for interference with property or wireless telegraphy that is for the purpose of acquiring communications or equipment data within the meaning of section 100 of the IPA, or any other information which would, unless authorised, constitute one or more offences under section 1 to 3A of the Computer Misuse Act. Such conduct should be authorised by a targeted equipment interference warrant under the IPA and covered by the Equipment Interference Code of Practice.

2.20 Applicants for a property interference authorisation will therefore need to consider whether the proposed interference will result in obtaining communications, equipment data or other information, and whether this is the purpose of the authorisation. If the acquisition of communications, equipment data or other information is incidental and not the purpose of the interference, then this activity may be authorised as property interference under the 1997 Act. Alternatively, the Police Service and the PIRC may obtain a targeted equipment interference warrant under the IPA, or use one of their other statutory powers. See also paragraphs 7.1 – 7.3 of this code.