Covert surveillance and property interference: code of practice

6. Authorisation procedures for intrusive surveillance

Authorisation criteria

6.1. An authorisation for intrusive surveillance may be granted by the chief constable of the Police Service or the PIRC, as listed in section 10(1A) of RIP(S)A.

6.2. In many cases an operation using covert techniques may involve both directed or intrusive surveillance and property interference. This can be authorised as a combined authorisation, although the criteria for authorisation of each activity must be considered separately (see paragraphs 4.16 – 4.18 on combined authorisations).

6.3. The person mentioned in paragraph 6.1 may only authorise intrusive surveillance if they believe that the authorisation is necessary in the circumstances of the particular case on the grounds that it is for the purpose of preventing or detecting serious crime ^[38] and that the surveillance is proportionate to what is sought to be achieved by carrying it out. The PIRC may only grant authorisations in relation to an investigation into any circumstances in which there is an indication that a person serving with the police has committed an offence ^[39] .

6.4. When deciding whether an authorisation is necessary and proportionate, it is important to consider whether the information which it is thought necessary to obtain by means of the intrusive surveillance could reasonably be obtained by other less intrusive means.

Information to be provided in applications

6.5. Applications should be in writing and should describe the conduct to be authorised and the purpose of the investigation or operation. The application should specify:

• the reasons why the authorisation is necessary in the particular case and on the grounds of preventing or detecting serious crime;
• the nature of the surveillance;
• the residential premises or private vehicle in relation to which the surveillance will take place, where known;
• the identities, where known, of those to be the subject of the surveillance;
• an explanation of the information which it is desired to obtain as a result of the surveillance;
• details of any potential collateral intrusion and why the intrusion is justified;
• 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
• a subsequent record of whether authorisation was given or refused, by whom, and the time and date this happened should also be recorded.

Urgent cases

6.6. In relation to the Police Service, the authorising officer should generally give authorisations in writing. However, in urgent cases, oral authorisations may be given by the authorising officer. In an urgent oral case, a statement that the authorising officer has expressly authorised the conduct should be recorded in writing by the applicant as soon as is reasonably practicable, together with the information detailed below.

6.7. In relation to the PIRC, in an urgent case, where it is not reasonably practicable having regard to the urgency of the case for the PIRC to consider the application, an authorisation may be granted in writing by a staff officer of the PIRC designated for that purpose under section 12ZA of RIP(S)A.

6.8. A case is not normally to be regarded as urgent unless the time that would elapse before the authorising officer was available to grant the authorisation would, in the judgement of the person giving the authorisation, be likely to endanger life or jeopardise the investigation or operation for which the authorisation was being given. 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.

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

• the identities, where known, of those subject to surveillance;
• the nature and location of the surveillance, including a clear indication of the criminality under investigation;
• the reasons why the authorising officer or the officer entitled to act in urgent cases considered the case so urgent that an oral instead of a written authorisation was given; and/or
• the reasons why it was not reasonably practicable for the application to be considered by the authorising officer.

Notifications to a Judicial Commissioner

6.10. Where a person grants, renews or cancels an authorisation for intrusive surveillance, he must, as soon as is reasonably practicable, give notice in writing to a Judicial Commissioner, where relevant, in accordance with whatever arrangements have been made by the IPC.

6.11. In urgent cases, the notification must specify the grounds on which the case is believed to be one of urgency. The urgency provisions should not be used routinely. If the Judicial Commissioner is satisfied that there were no grounds for believing the case to be one of urgency, he has the power to quash the authorisation.

Judicial Commissioner approval

6.12. Except in urgent cases an authorisation granted for intrusive surveillance will not take effect until it has been approved by a Judicial Commissioner and written notice of the Judicial Commissioner's decision has been given to the person who granted the authorisation. This means that the approval will not take effect until the notice has been received in the office of the person who granted the authorisation within the relevant public authority.

6.13. When the authorisation is urgent it will take effect from the time it is granted provided notice is given to the Judicial Commissioner in accordance with section 13(3)(b) of RIP(S)A (see section 14(2)(b) of RIP(S)A).

6.14. There may be cases that become urgent after approval has been sought but before a response has been received from a Judicial Commissioner. In such a case, the authorising officer should notify the Judicial Commissioner in writing that the case is now urgent (pointing out that it has become urgent since the notification). In these cases, the authorisation will take effect immediately.

Duration of intrusive surveillance authorisations

6.15. A written authorisation will cease to have effect (unless renewed) at the end of a period of three months, beginning with the day on which it took effect. So an authorisation given at 09.00 on 12 February will expire on 11 May. Authorisations (except those lasting for 72 hours) will cease at 23.59 on the last day.

6.16. The duration of an authorisation is calculated from the time at which the person who gave the authorisation was notified that a Judicial Commissioner had approved it. This can be done by presenting the authorising officer with the approval decision page to note in person or if the authorising officer is unavailable, sending the written notice by auditable electronic means.

6.17. Oral authorisations given in urgent cases and written authorisations given by those only entitled to act in urgent cases, will cease to have effect (unless renewed) at the end of the period of 72 hours beginning with the time when they took effect.

Renewals of intrusive surveillance authorisations

6.18. If, at any time before an authorisation expires, the authorising officer considers that the authorisation should continue to have effect for the purpose for which it was issued, he may renew it in writing for a further period of three months.

6.19. As with the initial authorisation, the authorising officer must (unless it is a case to which the urgency procedure applies) seek the approval of a Judicial Commissioner. The renewal will not take effect until the notice of the Judicial Commissioner’s approval has been received in the office of the person who granted the authorisation within the relevant force or organisation (but not before the day on which the authorisation would have otherwise ceased to have effect).

6.20. In urgent cases, a renewal can take effect immediately (provided this is not before the day on which the authorisation would have otherwise ceased to have effect). See sections 13 and 14 of RIP(S)A and the Regulation of Investigatory Powers (Notification of Authorisations etc.) (Scotland) Order 2000; SSI No: 340.

6.21. 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.

Information to be provided for all renewals of intrusive surveillance authorisations

6.22. All applications for a renewal of an intrusive surveillance authorisation should record:

• whether this is the first renewal or every occasion on which the authorisation has been renewed previously;
• any significant changes to the information listed in paragraph 6.15 above;
• the reasons why it is necessary to continue with the intrusive 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 continue to be exceptional and compelling circumstances that make this necessary;
• the content and value to the investigation or operation of the product so far obtained by the surveillance;
• the results of any reviews of the investigation or operation (see below).

6.23. Authorisations may be renewed more than once, if necessary, and details of the renewal should be centrally recorded.

Cancellations of intrusive surveillance activity

6.24. The senior authorising officer who granted or last renewed the authorisation must cancel it if he is satisfied that the surveillance no longer meets the criteria upon which it was authorised.

6.25. As soon as the decision is taken that intrusive surveillance should be discontinued, the instruction must be given to those involved to stop the intrusive surveillance. 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 to record any further details. However, effective practice suggests that a record should be retained detailing the product obtained from the surveillance and whether or not objectives were achieved.

6.26. Following the cancellation of any intrusive surveillance authorisation the Judicial Commissioners must be notified of the cancellation. ^[40]

Authorisations quashed by a Judicial Commissioner

6.27. In cases where a Police Service or PIRC authorisation is quashed or cancelled by a Judicial Commissioner, the senior authorising officer must immediately instruct those involved to stop carrying out the intrusive surveillance. Documentation of the date and time when such an instruction was given should be retained for at least three years).

Jurisdictional considerations

6.28. The Chief Constable of the Police Service (or a designated senior officer) may only grant an authorisation for intrusive surveillance on an application by a constable of the Police Service. The PIRC may only grant such an authorisation on an application by one of the PIRC’s staff officers.

6.29. Where the surveillance is carried out in relation to any residential premises, the authorisation cannot be granted unless the residential premises are in Scotland.