Covert surveillance and property interference: code of practice

8. Safeguards (including privileged or confidential information)

Introduction

8.1. This chapter provides guidance on the procedures and safeguards to be applied in relation to the handling of any material obtained through directed or intrusive surveillance under RIP(S)A, or property interference under the 1997 Act. This material may include private information as defined in section 1(9) of RIP(S)A. It also details the procedures and safeguards to be applied where authorisations may result in the acquisition of material subject to legal privilege, or other confidential material including journalistic material and the constituency business of a member of a relevant legislature ^[47] .

8.2. Where this chapter refers to material obtained through property interference it should be noted that the activity authorised by a property interference authorisation would not normally consist in the acquisition of information. Where the purpose of any interference with property or wireless telegraphy is to obtain communications, private information or equipment data this would normally fall to be authorised as equipment interference under the IPA. Material obtained through such interference is subject to equivalent safeguards set out in the equipment interference code of practice, and the provisions of this chapter do not apply.

8.3. Public authorities should ensure that their actions when handling information obtained by means of covert surveillance or property interference comply with relevant legal frameworks and this code so that any interference with privacy is justified in accordance with Article 8(2) of the ECHR. Compliance with these legal frameworks will ensure that the handling of private information so obtained continues to be lawful, justified and strictly controlled, and is subject to robust and effective safeguards.

8.4. All material obtained under the authority of a covert surveillance or property interference authorisation must be handled in accordance with safeguards which the public authority has implemented in line with the requirements of this code. These safeguards should be made available to the IPC. Breaches of these safeguards must be reported to the IPC in a fashion agreed with the IPC. Public authorities must keep their internal safeguards under periodic review to ensure that they remain up-to-date and effective. During the course of such periodic reviews, public authorities must consider whether more of their internal arrangements might safely and usefully be put into the public domain.

8.5. Dissemination, copying and retention of material must be limited to the minimum necessary for authorised purposes. For the purposes of this code, something is necessary for the authorised purposes if the material:

• is, or is likely to become, necessary for any of the statutory purposes set out in RIP(S)A or the 1997 Act in relation to covert surveillance or property interference;
• is necessary for facilitating the carrying out of the functions of public authorities under those Acts;
• is necessary for facilitating the carrying out of any functions of the IPC or the IPT;
• is necessary for the purposes of legal proceedings; or
• is necessary for the performance of the functions of any person by or under any enactment.

8.6. There is nothing in RIP(S)A or the 1997 Act which prevents material obtained under covert surveillance or property interference authorisations from being used to further other investigations where it becomes relevant and in accordance with the safeguards in this Chapter.

Use of material as evidence

8.7. Subject to the provisions in this chapter, material obtained through covert surveillance or property interference may be used as evidence in criminal proceedings. The admissibility of evidence is governed primarily by the common law and is impacted by the Human Rights Act 1998.

8.8. Any decisions by a Judicial Commissioner in respect of granting prior approval for intrusive surveillance activity or property interference as required under RIP(S)A or the 1997 Act, shall not be subject to appeal or be liable to be questioned in any court ^[48] .

8.9. Ensuring the continuity and integrity of evidence is critical to every prosecution. Accordingly, considerations as to evidential integrity are important and will apply to any material acquired through covert surveillance or property interference that is intended or likely for use in evidence. When information obtained under a covert surveillance or property interference authorisation is used evidentially, the public authority should be able to demonstrate how the evidence has been obtained, to the extent required by the relevant rules of evidence and disclosure.

8.10. Where the product of surveillance or property interference could be relevant to pending or future criminal or civil proceedings, it should be retained in accordance with established disclosure requirements.

Reviewing warrants and authorisations

8.11. Regular reviews of all authorisations should be undertaken during their lifetime to assess the necessity and proportionality of the conduct. Particular attention should be given to the need to review authorisations frequently where they involve a high level of intrusion into private life or significant collateral intrusion, or particularly sensitive information is likely to be obtained. At the point the public authority is considering applying for an authorisation, they must have regard to whether the level of protection to be applied in relation to information obtained under the warrant or authorisation is higher because of the particular sensitivity of that information.

8.12. In each case, unless specified by a Judicial Commissioner, the frequency of reviews should be determined by the public authority that made the application. This should be as frequently as is considered necessary and proportionate.

8.13. In the event that there are any significant and substantive changes to the nature of the operation during the currency of the authorisation, the public authority should consider whether it is necessary to apply for a new authorisation.

Handling material

8.14. Paragraphs 8.15 to 8.21 provide guidance as to the safeguards which govern the dissemination, copying, storage and destruction of private information obtained through covert surveillance or property interference. Each public authority must ensure that there are internal arrangements in force for securing that the requirements of these safeguards are satisfied in relation to private information obtained by these means. Authorising officers, through their relevant Data Protection Officer, must ensure compliance with all data protection requirements under data protection law including any relevant internal arrangements produced by individual authorities relating to the handling and storage of material.

Dissemination of information

8.15. Material acquired through covert surveillance or property interference may need to be disseminated both within and between public authorities, as well as to consumers of intelligence (which includes the IPC, for example), where necessary in order for action to be taken on it. The number of persons to whom any of the information is disclosed, and the extent of disclosure, should be limited to the minimum necessary for the authorised purpose set out in paragraph 8.5 above. This obligation applies equally to disclosure to additional persons within a public authority and to disclosure outside the authority. In the same way, only so much of the material may be disclosed as the recipient needs; for example if a summary of the material will suffice, no more than that should be disclosed.

8.16. The obligations apply not just to the original public authority acquiring the information under a warrant or authorisation, but also to anyone to whom the material is subsequently disclosed. In some cases this will be achieved by requiring the latter to obtain the original authority’s permission before disclosing the material further. In others, explicit safeguards should be applied to secondary recipients.

8.17. Where material obtained under an authorisation is disclosed to the authorities of a country or territory outside the UK, the public authority must ensure that the material is only handed over to the authorities if it appears to them that any requirements relating to minimising the extent to which material is disclosed, copied, distributed and retained will be observed to the extent that the authorising officer or Judicial Commissioner considers appropriate.

Copying

8.18. Material obtained through covert surveillance or property interference may only be copied to the extent necessary for the authorised purpose. Copies include not only direct copies of the whole of the material, but also extracts and summaries which identify themselves as the product of covert surveillance or property interference, and any record which refers to the covert surveillance or property interference and the identities of the persons to whom the material relates.

Storage

8.19. Material obtained through covert surveillance or property interference and all copies, extracts and summaries of it, must be handled and stored securely, so as to minimise the risk of loss or theft. It must be held so as to be inaccessible to persons without the required level of security clearance (where applicable). This requirement to store such material securely applies to all those who are responsible for the handling of the material.

8.20. In particular, each public authority must apply the following protective security measures:

• physical security to protect any premises where the information may be stored or accessed;
• IT security to minimise the risk of unauthorised access to IT systems; and
• an appropriate security clearance regime for personnel which is designed to provide assurance that those who have access to this material are reliable and trustworthy.

Destruction

8.21. Information obtained through covert surveillance or property interference, and all copies, extracts and summaries thereof, should be scheduled for deletion or destruction and securely destroyed as soon as they are no longer needed for the authorised purpose set out in paragraph 8.5. If such information is retained, it should be reviewed at appropriate intervals to confirm that the justification for its retention is still valid. In this context, destroying material means taking such steps as might be necessary to make access to the data impossible ^[49] .

Confidential or privileged material

8.22. RIP(S)A does not provide any special protection for ‘confidential information’. The 1997 Act makes special provision for certain categories of confidential information. Nevertheless, in all circumstances particular consideration should be given in cases where the subject of the investigation or operation might reasonably assume a high degree of confidentiality.

8.23. Authorisations under the 1997 Act likely to result in the acquisition of knowledge of matters subject to legal privilege, confidential personal information or confidential journalistic material require (other than in urgent cases) the approval of a Judicial Commissioner.

Directed surveillance of legal consultations

8.24. Authorisations for directed surveillance of legal consultations falling within the 2015 Order must comply with the enhanced authorisation regime described in paragraphs 8.43 - 8.51. In cases where it is likely that knowledge of confidential information will be acquired, the use of covert surveillance is subject to a higher level of authorisation ^[50] .

Confidential personal information and confidential constituent information

8.25. Confidential personal information is information held in confidence concerning an individual (whether living or dead) who can be identified from it, and the material in question relates to his physical or mental health or to spiritual counselling. Such information can include both oral and written communications. Such information as described above is held in confidence if it is held subject to an express or implied undertaking to hold it in confidence or it is subject to a restriction on disclosure or an obligation of confidentiality contained in existing legislation. For example, confidential personal information might include consultations between a health professional and a patient, or information from a patient’s medical records.

8.26. Spiritual counselling means conversations between an individual and a Minister of Religion acting in his or her official capacity, and where the individual being counselled is seeking, or the Minister is imparting, forgiveness, absolution or the resolution of conscience with the authority of the Divine Being(s) of their faith.

8.27. Confidential constituent information is information relating to communications between a member of a relevant legislature (see paragraph 8.1 above) and a constituent member in respect of constituency business. Again, such information is held in confidence if it is held subject to an express or implied undertaking to hold it in confidence or it is subject to a restriction on disclosure or an obligation of confidentiality contained in existing legislation. If the information is exchanged with the intention of furthering a criminal purpose, for example, then the information will not be considered confidential for the purposes of this code.

8.28. Where the intention is to acquire confidential personal information, or confidential constituent information, the reasons should be clearly documented and the specific necessity and proportionality of doing so should be carefully considered by the authorising officer in accordance with the safeguards in this chapter. If the acquisition of confidential personal or constituent information is likely, but not intended, any possible mitigating steps should be considered by the authorising officer and, if none are available, consideration should be given to whether special handling arrangements are required within the relevant public authority.

8.29. Material which has been identified as confidential personal or constituent information should be retained only where it is necessary and proportionate to do so in accordance with the authorised purpose as set out in paragraph 8.5 or where otherwise required by law. It should be securely destroyed when its retention is no longer needed for those purposes. If such information is retained, there should be adequate information management systems in place to ensure that continued retention remains necessary and proportionate for the authorised purpose.

8.30. Where confidential personal or constituent information is retained or disseminated to an outside body, reasonable steps should be taken to mark the information as confidential. Where there is any doubt as to the lawfulness of the proposed handling or dissemination of confidential information, advice should be sought from a legal adviser within the relevant public authority before any further dissemination of the material takes place.

8.31. Any case where confidential personal or constituent information is retained, other than for the purpose of destruction, and disseminated should be reported to the IPC as soon as reasonably practicable, and any material which has been retained should be made available to the IPC on request so that the IPC can consider whether the correct procedures and considerations have been applied.

Applications to acquire material relating to confidential journalistic material and journalists’ sources

8.32. There is a strong public interest in protecting a free press and freedom of expression in a democratic society, including the willingness of sources to provide information to journalists anonymously.

8.33. The acquisition of material through covert surveillance or property interference will be a justifiable interference with an individual’s human rights under Articles 8 (right to respect for private and family life) and, in certain circumstances, 10 (freedom of expression) of the ECHR only if the conduct being authorised is necessary, proportionate and in accordance with law.

8.34. Confidential journalistic material includes material acquired or created for the purposes of journalism and held subject to an undertaking to hold it in confidence, as well as communications resulting in information being acquired for the purposes of journalism and held subject to such an undertaking.

8.35. A person holds material in confidence if they hold the material subject to an express or implied undertaking to hold it in confidence, or they hold the material subject to a restriction on disclosure or an obligation of secrecy contained in an enactment. Confidentiality can continue to attach to confidential journalistic material when it is sent to or held by a person who is neither the journalist nor the source (for example, a news editor who has been sent some notes by a journalist).

8.36. When a public authority applies for an authorisation where the purpose, or one of the purposes, of the authorisation is to authorise the acquisition of material that the authority believes will be confidential journalistic material, the authorisation application must contain a statement that the purpose is to acquire material which the public authority believes will contain confidential journalistic material. The person to whom the application is made may issue the authorisation only if they consider that appropriate safeguards relating to the handling, retention use and disclosure of the material are in place and where appropriate, Judicial Commissioner approval has been obtained.

8.37. A source of journalistic information is an individual who provides material intending the recipient to use it for the purpose of journalism or knowing that it is likely to be so used. Any reference to sources in this code should be understood to include any person acting as an intermediary between a journalist and a source.

8.38. When a public authority applies for an authorisation where the purpose, or one of the purposes is to identify or confirm a source of journalistic information, the application must contain a statement confirming that this is the purpose (or one of the purposes) for the application. The person to whom the application is made may issue the warrant or authorisation only if they consider that appropriate safeguards relating to the handling, retention, use and disclosure of the material are in place.

8.39. An assessment of whether someone is a journalist (for the purpose of this code) should be made on all the facts and circumstances available at the time. Consideration should be given, in particular, to the frequency of the individual’s relevant activities, the level of personal rigour they seek to apply to their work, the type of information that they collect, the means by which they disseminate that information and whether they receive remuneration for their work. This approach will take into account the purpose of the safeguards in this code, which is to protect the proper exercise of free speech, and reflect the role that journalists play in protecting the public interest. The fact that a person uses social media tools to communicate does not, in itself, indicate that that person is a journalist or that he or she is likely to be holding confidential journalistic material.

8.40. Where material is created or acquired with the intention of furthering a criminal purpose, the material is not to be regarded as having been created or acquired for the purpose of journalism. Once material has been broadcast, no confidentiality can attach to the material so it is not confidential journalistic material.

8.41. Where confidential journalistic material, or that which identifies the source of journalistic information, is retained and disseminated to an outside body, reasonable steps should be taken to mark the disseminated information as confidential. Where there is any doubt as to the lawfulness of the proposed handling or dissemination of such information, advice should be sought from a legal adviser to the relevant public authority before any further dissemination of the content takes place.

8.42. Where confidential journalistic material, or that which identifies a source of journalistic information, has been obtained and retained, other than for the purposes of destruction, the matter should be reported to the IPC as soon as reasonably practicable.

Surveillance under the 2015 Order - Material subject to legal privilege

8.43. Directed surveillance likely or intended to result in the acquisition of knowledge of matters subject to legal privilege may take place in circumstances covered by the 2015 Order, or in other circumstances. Similarly, property interference may be necessary in order to affect surveillance described in the 2015 Order, or in other circumstances where knowledge of matters subject to legal privilege is likely to be obtained. However, where any directed surveillance of a “legal consultation” within the meaning given by the 2015 Order takes place, the provisions of that Order apply as follows.

8.44. The 2015 Order provides that directed surveillance that is carried out in relation to anything taking place on so much of any premises specified in article 3(2) of the Order as is, at any time during the surveillance, used for the purposes of ‘legal consultations’ is to be treated for the purposes of RIP(S)A as intrusive surveillance.

8.45. The 2015 Order defines ‘legal consultation’ for these purposes. It means:

• a consultation between a professional legal adviser and that adviser’s client or any person representing that client; or
• a consultation between a professional legal adviser or that adviser’s client or any person representing that client and a registered medical practitioner, made in connection with, or in contemplation of, legal proceedings and for the purpose of such proceedings.

8.46. The definition of ‘legal consultation’ in the 2015 Order does not distinguish between legal consultations which are privileged, wholly or in part, and legal consultations which may be in furtherance of a criminal purpose are therefore not protected by any form of privilege. Covert surveillance of all legal consultations covered by the 2015 Order (whether protected by privilege or not) is to be treated as intrusive surveillance.

8.47. Where material is obtained which may contain matters subject to legal privilege legal advice should be taken to determine how that material may be used in evidential terms.

8.48. As noted above, the 2015 Order provides that directed surveillance that is carried out in relation to anything taking place on so much of any premises specified in article 3(2) of the Order as is, at any time during the surveillance, used for the purposes of ‘legal consultations’ shall be treated for the purposes of RIP(S)A as intrusive surveillance.

8.49. As a result of the 2015 Order, such surveillance cannot be undertaken without the prior approval of a Judicial Commissioner.

8.50. The locations specified in the Order are:

(a) any premises in which persons who are serving sentences of imprisonment or detention, remanded in custody or remanded or committed for trial or sentence, may be detained;

(b) legalised police cells within the meaning of section 14(1) of the Prisons (Scotland) Act 1989;

(c) any premises in which persons may be detained under paragraph 16(1), (1A) or (2) of Schedule 2 or paragraph 2(2) or (3) of Schedule 3 to the Immigration Act 1971 or section 36(1) of the UK Borders Act 2007;

(d) any premises in which persons may be detained under Part VI of the Criminal Procedure (Scotland) Act 1995 or the Mental Health (Care and Treatment) (Scotland) Act 2003;

(e) police stations;

(f) the place of business of any professional legal adviser; and.

(g) any premises used for the sittings and business of any court, tribunal or inquiry.

8.51. Authorisations for surveillance which is to be treated as intrusive surveillance as a result of the 2015 Order shall not take effect until such time as:

(a) the authorisation has been approved by a Judicial Commissioner; and

(b) written notice of the Judicial Commissioner’s decision to approve the authorisation has been given to the authorising officer.

Tests to be applied when authorising or approving covert surveillance or property interference likely or intending to result in the acquisition of knowledge of matters subject to legal privilege

8.52. All applications for covert surveillance or property interference that may result in the acquisition of knowledge of matters subject to legal privilege, within the meaning given by paragraph 1.1 of this code, should state whether the covert surveillance or property interference likely or intending to obtain knowledge of matters subject to legal privilege.

8.53. Where covert surveillance or property interference is likely or intended to result in the acquisition of knowledge of matters subject to legal privilege, an authorisation shall only be granted or approved if the authorising officer, and approving Judicial Commissioner, as appropriate, are satisfied that there are exceptional and compelling circumstances that make the authorisation necessary:

• where the surveillance or property interference is not intended to result in the acquisition of knowledge of matters subject to legal privilege, such exceptional and compelling circumstances may arise in the interests of preventing or detecting serious crime;
• where the surveillance or property interference is intended to result in the acquisition of knowledge of matters subject to legal privilege, such circumstances will arise only in a very restricted range of cases, such as where there is a threat to life or limb and the surveillance or property interference is reasonably regarded as likely to yield intelligence necessary to counter the threat.

8.54. Further, in considering any authorisation for covert surveillance or property interference likely or intended to result in the acquisition of knowledge of matters subject to legal privilege, the authorising officer and approving Judicial Commissioner, as appropriate, must be satisfied that the proposed covert surveillance or property interference is proportionate to what is sought to be achieved. In relation to intrusive surveillance, including surveillance to be treated as intrusive as a result of the 2015 Order, section 10(2) of RIP(S)A will apply.

8.55. Intrusive surveillance, including surveillance which is treated as intrusive as a result of the 2015 Order, or property interference likely to result in the acquisition of matters subject to legal privilege, may only be authorised by authorising officers entitled to grant intrusive surveillance or property interference authorisations.

8.56. Property interference likely to result in the acquisition of such material is subject to prior approval by a Judicial Commissioner. Intrusive surveillance, including surveillance which is treated as intrusive as a result of the 2015 Order, is also subject to prior approval by a Judicial Commissioner.

The use and handling of matters subject to legal privilege

8.57. Matters subject to legal privilege are particularly sensitive and surveillance which acquires such material may give rise to issues under Article 6 of the ECHR (right to a fair trial) as well as engaging Article 8. The acquisition of knowledge of matters subject to legal privilege (whether deliberate or otherwise) is therefore subject to additional safeguards. These safeguards provide for three different circumstances.

i) Application process for covert surveillance or property interference likely to result in the acquisition of knowledge of matters subject to legal privilege

8.58. If the covert surveillance or property interference does not intend to result in the acquisition of knowledge of matters subject to legal privilege, but it is likely that such knowledge will nevertheless be acquired during the operation, the application should clearly identify all steps which will be taken to mitigate the risk of acquiring it. If the risk cannot be removed entirely, the application should explain what steps will be taken to ensure that any knowledge of matters subject to legal privilege which is obtained is not used in law enforcement investigations or criminal prosecutions.

8.59. In addition, it should set out the reasons why the surveillance or interference with property is considered necessary and provide an assessment of how likely it is that information which is subject to legal privilege will be obtained. The relevant agency should also confirm that any collateral intrusion that is subject to legal privilege will be treated in accordance with the safeguards set out in this chapter and that reasonable and appropriate steps will be taken to minimise access to the material that is subject to legal privilege.

8.60. Directed surveillance likely to result in the acquisition of knowledge of matters subject to legal privilege may be authorised only by authorising officers entitled to grant authorisations in respect of confidential information. Intrusive surveillance, including surveillance which is to be treated as intrusive by virtue of the 2015 Order, or property interference likely to result in the acquisition of material subject to legal privilege, may only be authorised by authorising officers entitled to grant intrusive surveillance or property interference authorisations. Intrusive Surveillance and Property Interference authorisations shall not take effect unless approved by a Judicial Commissioner.

ii) Application process for covert surveillance or property interference intended to result in the acquisition of knowledge of matters subject to legal privilege

8.61. Where the intention is to acquire items subject to legal privilege, the application must contain a statement that the purpose, or one of the purposes, of the authorisation is to obtain legally privileged material. An authorisation should only be granted and approved if the authorising officer and Judicial Commissioner are satisfied that there are exceptional and compelling circumstances that make the authorisation necessary (see paragraph 8.54 above). The exceptional and compelling test can only be met when the public interest in obtaining the information sought outweighs the public interest in maintaining the confidentiality of legally privileged material, and when there are no other reasonable means of obtaining the required information. The authorised covert surveillance or property interference must be reasonably regarded as likely to yield the intelligence necessary to counter the threat.

8.62. Further, in considering any such application, the authorising officer and Judicial Commissioner must be satisfied that the proposed conduct is proportionate to what is sought to be achieved and must have regard to the public interest in the confidentiality of items subject to privilege. They will wish to consider carefully whether the activity or threat being investigated is of a sufficiently serious nature to override the public interest in preserving the confidentiality of privileged communications, and the likelihood that the information sought will have a positive impact on the investigation.

8.63. The authorising officer and Judicial Commissioner will take into account both the public interest in preserving the confidentiality of those particular items and the broader public interest in maintaining the confidentiality of items subject to legal privilege more generally. The authorising officer and Judicial Commissioner must be satisfied that there are appropriate arrangements in place for the handling, retention, use and destruction of privileged items. In such circumstances, the authorising officer and Judicial Commissioner will be able to impose additional requirements such as regular reporting arrangements so as to keep the authorisation under review more effectively.

iii) Application process for covert surveillance or property interference intended to result in the acquisition of knowledge of matters that would be subject to legal privilege if they were not created or held with the intention of furthering a criminal purpose

8.64. Where an application for an authorisation is made where the purpose, or one of the purposes, is to obtain items that, if they were not created or held with the intention of furthering a criminal purpose, would be subject to privilege and where the public authority considers that the items are likely to be created or held to further a criminal purpose, the application must include a statement to that effect and the reasons for believing that the items are likely to be created or held to further a criminal purpose. For example, if the public authority has reliable intelligence that a criminal fugitive is seeking advice from a lawyer in order to obtain a false alibi or to assist them in evading arrest, then this may provide grounds for an assessment that the communications with the lawyer will not be privileged, notwithstanding that the fugitive appeared to be seeking advice from a lawyer in a professional capacity, and this information should be set out in the application. The requirement to ensure the case for an authorisation is presented in the application in a fair and balanced way, including information which supports or weakens the case for the warrant or authorisation (as set out in paragraph 4.36) applies in these circumstances as it does elsewhere. For example, information which may undermine the assessment that material is likely to be created or held to further a criminal purpose must also be included in the application to ensure the authorising officer and Judicial Commissioner can make an informed assessment about the nature of the material. The authorisation can only be issued where the authorising officer, or Judicial Commissioner if appropriate, considers that the items are likely to be created or held with the intention of furthering a criminal purpose.

8.65. Under the definition in the 1997 Act, legal privilege does not apply to communications or items held, or oral communications made, with the intention of furthering a criminal purpose. Privilege is not lost if a professional legal adviser is properly advising a person who is suspected of having committed a criminal offence. The concept of legal privilege applies to the provision of professional legal advice by any individual, agency or organisation qualified to do so.

8.66. For the purposes of this code, any communication or items held between lawyer and client, or between a lawyer and another person for the purpose of actual or contemplated litigation (whether civil or criminal), must be presumed to be privileged unless the contrary is established: for example, where it is plain that the communication or item does not form part of a professional consultation of the lawyer, or there is clear and compelling evidence that the ‘furthering a criminal purpose’ exemption applies. Where there is doubt as to whether the material is subject to legal privilege or over whether material is not subject to legal privilege due to the “in furtherance of a criminal purpose” exception, advice should be sought from a legal adviser within the relevant public authority.

8.67. Where public authorities deliberately acquire knowledge of matters subject to legal privilege, they may use that knowledge to counter the threat which led them to acquire it, but it will not be admissible in court. Public authorities should ensure that knowledge of matters subject to legal privilege, whether or not it is acquired deliberately, is kept separate from law enforcement investigations or criminal prosecutions.

8.68. In cases likely to result in the acquisition of knowledge of matters subject to legal privilege, the authorising officer or Judicial Commissioner may require regular reporting so as to be able to decide whether the authorisation should continue. In those cases where legally privileged material has been acquired and retained, the matter should be reported to the authorising officer by means of a review and to the Judicial Commissioner or Inspector during his next inspection (at which the material should be made available if requested).

8.69. A substantial proportion of the communications between a lawyer and his client(s) may be privileged. Therefore, in any case where a lawyer is the subject of an investigation or operation, authorising officers should consider whether the special safeguards outlined in this chapter apply. Any material which has been retained from any such investigation or operation should be notified to the Judicial Commissioner or Inspector during his next inspection and made available on request.

8.70. Where there is any doubt as to the handling and dissemination of knowledge of matters which may be subject to legal privilege, advice should be sought from a legal adviser within the relevant public authority before any further dissemination of the information takes place. Similar advice should also be sought where there is doubt over whether information is not privileged because it forms part of a communication intended to further a criminal purpose. The retention of privileged material, or its dissemination to an outside body, should be accompanied by a clear warning that it is privileged. It should be safeguarded by taking reasonable steps to ensure there is no possibility of it becoming available, or its contents becoming known, to any person whose possession of it might prejudice any criminal or civil proceedings to which the information relates. Any dissemination of privileged material to an outside body should be notified to the Judicial Commissioner during his or her next inspection.

Property interference under the 1997 Act likely to result in the acquisition of knowledge of matters subject to legal privilege

8.71. With the exception of urgent authorisations, where it is believed that the action authorised is likely to result in the acquisition of knowledge of matters subject to legal privilege an authorisation under the 1997 Act shall not take effect until such time as:

a) the authorisation has been approved by a Judicial Commissioner; and

b) written notice of the Judicial Commissioner’s decision to approve the authorisation has been given to the authorising officer.

Lawyers’ material

8.72. Where a lawyer, acting in this professional capacity, is the subject of covert surveillance or property interference it is possible that a substantial proportion of the material which will be acquired will be subject to legal privilege. Therefore, in any case where the subject of covert surveillance or property interference is known to be a lawyer acting in that professional capacity, the application should be made on the basis that it is likely or intended to acquire items subject to legal privilege and the provisions in paragraphs 8.58 – 8.63 will apply, as relevant.

8.73. The public authority will wish to consider which of the three circumstances, which apply when items subject to legal privilege will or may be obtained, is relevant, and what processes should therefore be followed. This paragraph does not prevent an application being made on the grounds that the lawyer is under investigation for serious criminal offences, in which case, the application or notification must be made on the basis that it is likely to acquire items subject to legal privilege and the additional considerations set out at paragraphs 8.58 – 8.60 will apply.

8.74. Any case involving lawyers’ material should also be notified to the IPC during his or her next inspection and any material which has been retained should be made available to the IPC on request.

Handling, retention, and deletion of legally privileged material

8.75. In addition to the general safeguards governing the handling and retention of material as provided for in paragraphs 8.14 – 8.21, authorised persons who analyse material obtained by covert surveillance or property interference should be alert to any communications or items which may be subject to legal privilege. Paragraphs 8.76 – 8.77 set out the additional arrangements that apply to legally privileged items where the intention is to retain them for a purpose other than their destruction.

8.76. A legal adviser to the public authority must be consulted when it is believed that material which attracts privilege is retained other than for the purpose of destruction. The legal adviser is responsible for determining that material is privileged rather than an officer who is involved in an investigation. In cases where there is doubt as to whether material is privileged or not, the IPC may be informed who will be able to give a view. Where it is discovered that privileged material has been obtained inadvertently, an early assessment must be made of whether it is necessary and proportionate to retain it for one or more of the authorised purposes (see paragraph 8.5 above). If not, the material should not be retained, other than for the purpose of its destruction or in accordance with other statutory requirements.

8.77. Material which has been identified as legally privileged (and is being retained for purposes other than its destruction) should be clearly marked as subject to legal privilege and the IPC must be notified of the retention of the items as soon as reasonably practicable. Paragraphs 8.78 – 8.80 provides more detail on reporting privileged items to the IPC. Such material should be retained only where it is necessary and proportionate to do so for one or more of the authorised purposes. Privileged items must be securely destroyed when their retention is no longer needed for those purposes. If such material is retained, there must be adequate information management systems in place to ensure that continued retention, for purposes other than their destruction, remains necessary and proportionate for the authorised statutory purposes.

Reporting to the Investigatory Powers Commissioner

8.78. In those cases where items identified by a legal advisor in the public authority as being legally privileged have been acquired, the matter should be reported to the IPC as soon as reasonably practicable.

8.79. The IPC must order the destruction of the item or impose conditions on its use or retention unless the public interest in retaining the item outweighs the public interest in the confidentiality of items subject to legal privilege, and retaining the item is necessary in the interests of national security or for the purpose of preventing death or significant injury. Even if retention is necessary and the public interest in its retention outweighs the public interest in the confidentiality of items subject to legal privilege, the IPC may still impose conditions as he considers necessary to protect the public interest in the confidentiality of items subject to privilege. It may be the case in some circumstances that privileged items can be retained when their retention does not outweigh the public interest in the confidentiality of items subject to privilege. This includes, for example, where it is not possible to separate privileged items from those that are not privileged and of intelligence value and where the retention is necessary and proportionate for one of more of the authorised purposes or in accordance with statutory requirements. In these circumstances, the IPC must impose conditions on the use or retention of the item.

8.80. The IPC will make an assessment of whether the public interest in retaining the item outweighs the public interest in the confidentiality of items subject to legal privilege, and of whether retaining the item is necessary in the interests of national security or for the purpose of preventing death or significant injury. If both of those conditions are met, then the IPC may impose conditions as to the use or retention of the items, but the IPC is not obliged to do so. If those conditions are not met, the IPC must direct that the item is destroyed, or must impose one or more conditions as to the use or retention of the items. The IPC must have regard to any representations made by the public authority about the proposed retention of privileged items or conditions that may be imposed.

Dissemination

8.81. In the course of an investigation, a public authority must not act on or further disseminate legally privileged items unless it has first informed the IPC that the items have been obtained, except in urgent circumstances. Where there is an urgent need to take action and it is not reasonably practicable to inform the IPC that the material has been obtained before taking action, the public authority may take action before informing the IPC. In such cases, the public authority should, wherever possible consult a legal adviser. A public authority must not disseminate privileged items if doing so would be contrary to a condition imposed by the IPC in relation to those items.

8.82. The dissemination of legally privileged material to an outside body should be accompanied by a clear warning that it is subject to legal privilege. It should be safeguarded by taking reasonable steps to remove the risk of it becoming available, or its contents becoming known, to any person whose possession of it might prejudice any criminal or civil proceedings to which the information relates, including law enforcement authorities. In this regard civil proceedings include all legal proceedings before courts and tribunals that are not criminal in nature. Neither the Crown Office and Procurator Fiscal Service lawyer nor any other prosecuting authority lawyer with conduct of a prosecution should have sight of any legally privileged material, held by the relevant public authority, with any possible connection to the proceedings. In respect of civil proceedings, there can be no circumstances under which it is proper for any public authority to have sight of or seek to rely on legally privileged material in order to gain a litigation advantage over another party in legal proceedings.

8.83. In order to safeguard against any risk of prejudice or accusation of abuse of process, public authorities must also take all reasonable steps to ensure that lawyers or other officials with conduct of legal proceedings should not see legally privileged material relating to those proceedings (whether the privilege is that of the other party to those proceedings or that of a third party). If such circumstances do arise, the public authority must seek independent advice from Counsel and, if there is assessed to be a risk that sight of such material could yield a litigation advantage, the direction of the Court must be sought.