Covert surveillance and property interference: code of practice

5. Authorisation procedures for directed surveillance

Authorisation criteria

5.1. Under section 6 of RIP(S)A an authorisation for directed surveillance may be granted by an authorising officer where he believes that the authorisation is necessary in the circumstances of the particular case on the grounds that it is:

a) for the purpose of preventing or detecting ^[36] crime or of preventing disorder;

b) in the interests of public safety;

c) for the purpose of protecting public health ^[37] ;

5.2. The authorising officer must also believe that the surveillance is proportionate to what it seeks to achieve (see paragraphs 4.4 - 4.8).

Relevant public authorities

5.3. The public authorities entitled to authorise directed surveillance (including to acquire confidential information, with specified higher authorisation), are listed in section 8 of RIP(S)A.

Information to be provided in applications for authorisation

5.4. A written application for a directed surveillance authorisation should describe any conduct to be authorised and the purpose of the investigation or operation. The application should also include:

• the reasons why the authorisation is necessary in the particular case and on the grounds (e.g. for the purpose of preventing or detecting crime) listed in Section 6(3) of RIP(S)A;
• the nature of the surveillance;
• the identities, where known, of those to be the subject of the surveillance;
• a summary of the intelligence case and appropriate unique intelligence references where applicable;
• an explanation of the information which it is desired to obtain as a result of the surveillance;
• the details of any potential collateral intrusion and why the intrusion is justified;
• the details of any confidential information that is likely to be obtained as a consequence of the surveillance;
• where the purpose, or one of the purposes, of the authorisation is to obtain information subject to legal privilege, an assessment of why there are exceptional and compelling circumstances that make this necessary;
• the reasons why the surveillance is considered proportionate to what it seeks to achieve; and,
• the level of authority required (or recommended where that is different) for the surveillance; and
• a subsequent record of whether authorisation was given or refused, by whom, and the time and date this happened should also be recorded.

Authorisation procedures

5.5. Responsibility for authorising the carrying out of directed surveillance rests with the authorising officer and requires the personal authority of the authorising officer. An authorising officer must give authorisations in writing, except in urgent cases when they may be given orally by the authorising officer or in writing by the officer able to act in urgent cases.

5.6. The 2010 Order and the 2016 Order, designate the authorising officer for each different public authority and the officers able to authorise in urgent cases.

5.7. Authorising officers should not normally be responsible for authorising operations in which they are directly involved, although it is recognised that this may sometimes be unavoidable, especially in the case of small organisations, or where it is necessary to act urgently or for security reasons. Where an authorising officer authorises such an investigation or operation the centrally retrievable record of authorisations (see Chapter 7) should highlight this and the attention of a Judicial Commissioner or Inspector should be invited to it during his next inspection.

Urgent cases

5.8. The authorising officer should generally give authorisations in writing. However, in urgent cases, oral authorisations may be given by the authorising officer (a person designated only for the purposes of urgent situations must give their authorisation in writing). In an urgent oral case, a statement that the senior authorising officer or designated deputy has expressly authorised the conduct should be recorded in writing by the applicant as soon as is reasonably practicable, together with the information detailed at paragraph 5.10.

5.9. An authorisation is not to be regarded as urgent where the need for an authorisation has been neglected or the urgency is of the authorising officer’s or applicant’s own making.

5.10. In urgent cases, the above information may be supplied orally. In such cases the authorising officer and applicant, where applicable, should record the following information in writing, as soon as is reasonably practicable (it is not necessary to record further detail):

• the identities of those subject to surveillance;
• the nature of the surveillance as defined at paragraph 2.4 of this code;
• the reasons why the authorising officer considered the case so urgent that an oral instead of a written authorisation was given; and,
• where the officer entitled to act in urgent cases has given written authority, the reasons why it was not reasonably practicable for the application to be considered by the authorising officer should also be recorded.

Duration of authorisations

5.11. A written authorisation granted by an authorising officer will cease to have effect (unless renewed or cancelled) at the end of a period of three months beginning with the day when the authorisation granted has taken effect.

5.12. Urgent oral authorisations or written authorisations granted by a person who is entitled to act only in urgent cases will, unless renewed, cease to have effect after 72 hours, beginning with the time when the authorisation granted had taken effect.

Renewals

5.13. Section 19 of RIP(S)A provides that authorisations for directed surveillance may be renewed where the authorising officer considers that the authorisation continues to be necessary and proportionate. This may include where an investigation continues after the initial period of authorisation.

5.14. If, at any time before an authorisation for directed surveillance authorisation would cease to have effect, the authorising officer considers it necessary for the authorisation to continue for the purpose for which it was given, he may renew it in writing for a further period of three months. Renewals may also be granted orally in urgent cases and last for a period of 72 hours. The renewal will take effect at the time at which the authorisation would have ceased to have effect but for the renewal.

5.15. An application for renewal should not be made until shortly before the authorisation period is drawing to an end. Any person who would be entitled to grant a new authorisation can renew an authorisation.

5.16. All applications for the renewal of a directed surveillance authorisation should record (at the time of application, or when reasonably practicable in the case of urgent cases approved orally):

• whether this is the first renewal or every occasion on which the authorisation has been renewed previously;
• any significant changes to the information in the initial application;
• the reasons why the authorisation for directed surveillance should continue;
• the content and value to the investigation or operation of the information so far obtained by the surveillance;
• the results of regular reviews of the investigation or operation.

5.17. Authorisations may be renewed more than once, if necessary and proportionate, and provided they continue to meet the criteria for authorisation. The details of any renewal should be centrally recorded.

5.18. Where there is a renewal application in respect of an authorisation which has resulted in the obtaining of legally privileged items, that fact should be highlighted in the renewal application. If it is likely that legally privileged items will continue to be obtained, the renewal should be authorised at the higher level as required by Annex A to this code, and, potentially, by the 2015 Order.

Cancellations

5.19. The authorising officer must cancel the authorisation at any time if they consider that the directed surveillance no longer meets the criteria upon which it was authorised. Where the original 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 authorising officer.

5.20. Those acting under an authorisation must keep their authorisations under review and notify the authorising officer if they consider that the authorisation is no longer necessary or proportionate, and so should therefore be cancelled.

5.21. As soon as the decision is taken that directed surveillance should be discontinued, the instruction must be given to those involved to stop all surveillance of the subject(s) as soon as reasonably practicable. The date the authorisation was cancelled should be centrally recorded and documentation of any instruction to cease surveillance should be retained. There is no requirement for any further details to be recorded when cancelling a directed surveillance authorisation. However, effective practice suggests that a record should be retained detailing the product obtained from the surveillance and whether or not objectives were achieved.