The Regulation of Investigatory Powers Act 2000 Flashcards
Surveillance and Covert Human Intelligence Sources
Part II of the Regulation of Investigatory Powers Act 2000, s. 26 provides:
(1) This Part applies to the following conduct—
(a) directed surveillance;
(b) intrusive surveillance; and
(c) the conduct and use of covert human intelligence sources.
Keynote
Although only s. 26(1)(c) expressly uses the word ‘covert’ for the nature of the activity, it is relevant to all three of these areas. Part II is concerned with covert activity and so, as a general rule, if it is not covert, it is not covered.
Some law enforcement activities fall outside the scope of the Act, e.g. ‘property interference’ which is a very intrusive form of intelligence gathering such as attaching listening devices within people’s homes. This type of activity is covered by part III of the Police Act 1997 and is beyond the scope of this Manual.
Covert
A purpose is ‘covert’ here only if the relationship (and the subsequent disclosure of information) is conducted in a manner that is calculated to ensure that one of the parties is unaware of that purpose. Therefore the definition would not usually apply to members of the public generally supplying information to the police. Similarly, people who have come across information in the ordinary course of their jobs who suspect criminal activity (such as bank staff, local authority employees etc.) do not have a covert relationship with the police simply by passing on information.
Great care will be needed, however, if the person supplying the information is asked by the police to do something further in order to develop or enhance it. Any form of direction or tasking by the police in this way could make the person a CHIS and thereby attract all the statutory provisions and safeguards.
Use and Conduct
There are two areas to be considered when considering covert human intelligence sources: the ‘use’ of a CHIS and ‘conduct’ as a CHIS. Both areas are strictly controlled by the legislation and require the relevant authorisation if they are to be lawful.
The ‘use’ of a CHIS involves any action on behalf of a public authority to induce, ask or assist a person to engage in the conduct of a CHIS, or to obtain information by means of the conduct of a CHIS (s. 26(7)(b)).
The conduct of a CHIS is any conduct of a CHIS which falls within para. 2.1 above, that is, steps taken by the CHIS on behalf, or at the request, of a public authority (s. 26(7)(a)). Most CHIS authorisations will be for both use and conduct as public authorities usually task the CHIS to undertake covert action, and because the CHIS will be expected to take action in relation to the public authority, such as responding to particular tasking.
Generally, covertly recording conversations and other personal information about a particular person will amount to some form of ‘surveillance’ (and therefore will be governed by the strict rules regulating such operations). However, such use of a CHIS will not amount to ‘surveillance’ (s. 48(3)).
Note that, apart from the many other considerations of using a CHIS, the police owe a duty to take reasonable care to avoid unnecessary disclosure to the general public of information provided by a CHIS (Swinney v Chief Constable of Northumbria (No. 2) (1999) 11 Admin LR 811).
CHIS: General Rules on Authorisations
Note that in relation to s. 29(3)(b), preventing and detecting crime is defined in s. 81(5) and goes beyond the prosecution of offenders and includes actions taken to avert, end or disrupt the commission of criminal offences.
An authorisation under this section may not have the effect of authorising a covert human intelligence resource who is a person designated under s. 38 of the Police Reform Act 2002 to establish contact in person with another person (subs. (6A)). However, although a designated staff member or volunteer would not be able to work undercover face-to-face, they could do so online, for example as part of an online child sexual abuse investigation.
For the purposes of section 29(2)(c)(i), a ‘relevant collaborative unit’ is a unit that either consists of two or more police forces whose chief officers of police have made an agreement under s. 22A of the Police Act 1996 (s. 29A(2)) or it consists of one or more police forces and the National Crime Agency by virtue of an agreement made under s. 22A (s. 29A(3)).
Necessity and Proportionality
3.2 The 2000 Act stipulates that the authorising officer must believe that an authorisation for the use or conduct of a CHIS is necessary in the circumstances of the particular case for one or more of the statutory grounds listed in section 29(3) of the 2000 Act.
3.3 If the use or conduct of the CHIS is deemed necessary on one or more of the statutory grounds, the person granting the authorisation must also believe that it is proportionate to what is sought to be achieved by carrying it out. The degree of intrusiveness of the actions tasked on or undertaken by an authorised CHIS will vary from case to case, and therefore proportionality must be assessed on an individual basis. This involves balancing the seriousness of the intrusion into the private or family life of the subject of the operation (or any other person who may be affected) against the need for the activity in investigative and operational terms.
3.4 The authorisation will not be proportionate if it is excessive in the overall circumstances of the case. Each action authorised should bring an expected benefit to the investigation or operation and should not be disproportionate or arbitrary. The fact that a suspected offence may be serious will not alone render the use or conduct of a CHIS proportionate. Similarly, an offence may be so minor that any deployment of a CHIS would be disproportionate. No activity should be considered proportionate if the information, which is sought, could reasonably be obtained by other less intrusive means.
3.5 The following elements of proportionality should therefore be considered:
○ balancing the size and scope of the proposed activity against the gravity and extent of the perceived crime or harm;
○ explaining how and why the methods to be adopted will cause the least possible intrusion on the subject and others;
○ whether the conduct to be authorised will have any implications for the privacy of others, and an explanation of why (if relevant) it is nevertheless proportionate to proceed with the operation;
○ evidencing, as far as reasonably practicable, what other methods had been considered and why they were not implemented, or have been implemented unsuccessfully;
○ considering whether the activity is an appropriate use of the legislation and a reasonable way, having considered all reasonable alternatives, of obtaining the information sought.
Extent of authorisations
3.7 An authorisation under Part II of the 2000 Act for the use or conduct of a CHIS will provide lawful authority for any such activity that:
○ involves the use or conduct of a CHIS as is specified or described in the authorisation;
○ is carried out by or in relation to the person to whose actions as a CHIS the authorisation relates; and
○ is carried out for the purposes of, or in connection with, the investigation or operation so described
3.8 In the above context, it is important that the CHIS is fully aware of the extent and limits of any conduct authorised, and that those involved in the use of a CHIS are fully aware of the extent and limits of the authorisation in question.
Authorising officers are also required to take into account collateral intrusion, namely, the risk of interference with the private and family life of persons who are not the intended subjects of the CHIS activity (Code of Practice, para. 3.9).
They will also need to be aware of any particular sensitivities in the local community. Consideration should also be given to any adverse impact on community confidence or safety that may result from the use or conduct of a CHIS or use of information obtained from that CHIS (para. 3.17).
CHIS: Authorisation Procedures
5.4 Responsibility for authorising the use or conduct of a CHIS rests with the authorising officer and all authorisations require the personal authority of the authorising officer. The 2010 CHIS Order as amended by the 2013 Relevant Sources Order designates the authorising officer for each different public authority and the officers entitled to act only in urgent cases. In certain circumstances the Secretary of State will be the authorising officer (see section 30(2) of the 2000 Act).
5.5 The authorising officer must give authorisations in writing, except in urgent cases, where they may be given orally. In such cases, a statement that the authorising officer has expressly authorised the action should be recorded in writing by the applicant (or the person with whom the authorising officer spoke) as a priority. This statement need not contain the full detail of the application, which should however subsequently be recorded in writing when reasonably practicable (generally the next working day).
5.6 Other officers entitled to act in urgent cases may only give authorisation in writing e.g. written authorisation for directed surveillance given by a Superintendent.
5.7 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 judgment of the person giving the authorisation, be likely to endanger life or jeopardise the operation or investigation p. 338for 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 applicant’s or authorising officer’s own making.
Authorising CHIS
Authorising officers should, where possible, be independent of the investigation. However, it is recognised that this is not always possible, especially in the cases of small organisations, or where it is necessary to act urgently or for security reasons.
The Regulation of Investigatory Powers (Directed Surveillance and Covert Human Intelligence Sources) Order 2010 (SI 2010/521, as amended by SI 2013/2788), prescribes the ranks of those within the police service in England and Wales who can authorise a CHIS.
he relevant rank of an authorising officer for a CHIS is a superintendent and above. However, in urgent cases, where it is not reasonably practicable to have the application considered by someone of that rank in the same organisation, an inspector may generally give the relevant authorisation (sch. 1, part 1 of the 2010 Order). Unless it is renewed, the authorisation given by a superintendent will ordinarily cease to have effect after 12 months beginning on the day it was granted (s. 43(3)(b)). If that authorisation was given orally by a superintendent in an urgent case, it will only last for 72 hours unless renewed, and where the case is urgent and the authority was given by an inspector, it will cease to have effect 72 hours later unless renewed (s. 43(3)(a)).
Authorisations may also be made on an application made by a member of another police force where such a police force is party to a collaborative agreement that provides for this (s. 33(3ZA)–(3ZC)).
Long-term authorisations (those exceeding 12 months) can only be given by a chief constable/commissioner and are subject to approval by a Judicial Commissioner.
A single authorisation can combine two or more different authorisations (e.g. the use of surveillance and the use of a CHIS) but they operate independently of each other (s. 43(2)). This means that when one authorisation lapses, any other authorisations made at the same time do not necessarily end as well.
Authorising ‘Relevant Sources’
All deployments of undercover officers (referred to in the Order and Code as ‘relevant sources’) must be authorised by an assistant chief constable/commander or in urgent cases by a superintendent.
Authorisations lasting more than 12 months must be approved by a chief constable/commissioner and the Office of Surveillance Commissioners must give prior approval (sch. 1, part 1A to the 2010 Order). The CHIS Code of Practice states that all police officers deployed as a relevant source must comply with the College of Policing Code of Ethics.
Authorising Juvenile/Vulnerable CHIS
Special safeguards apply in relation to juveniles and vulnerable individuals. Juveniles are those under 18 years of age. On no occasion should the use or conduct of a CHIS under 16 years of age be authorised to give information against his parents or any person who has parental responsibility for him. In other cases, authorisations should not be granted unless the special provisions contained within the Regulation of Investigatory Powers (Juveniles) (Amendment) Order 2018 (SI 2018/715) are satisfied.
A vulnerable individual is a person who is or may be in need of community care services by reason of mental or other disability, age or illness and who is or may be unable to take care of him/herself, or unable to protect him/herself against significant harm or exploitation.
The authorisation levels for juveniles and vulnerable individuals are assistant chief constable/commander where they are to be used as sources. Regular reviews of authorisations are required to assess whether it remains necessary and proportionate to use a CHIS and whether the authorisation remains justified. An authorisation must be cancelled if the use or conduct of the CHIS no longer satisfies the criteria for authorisation.
In R (On the Application of Just for Kids Law) v Secretary of State for the Home Department [2019] EWHC 1772 (Admin) the court held that the scheme relating to the use of a juvenile CHIS adequately protects children’s welfare and their Article 8 rights.
An enhanced authorisation regime exists when, through the use or conduct of a CHIS, it is likely that knowledge of legally privileged material or other confidential information will be required (the Regulation of Investigatory Powers (Covert Human Intelligence Sources: Matters Subject to Legal Privilege) Order 2010 (SI 2010/521, as amended by SI 2013/2788)).
Private Information
Private information includes any information relating to a person’s private or family life (s. 26(10)). It should be taken generally to include any aspect of a person’s private or personal relationship with others, including family. Family should be treated as extending beyond the formal relationships created by marriage or civil partnership and may include professional or business relationships. Private information may include personal data, such as names, telephone numbers and address details.
What DOES NOT Constitute Surveillance
Some surveillance activity does not constitute intrusive or directed surveillance for the purposes of part II of the 2000 Act and includes:
- covert surveillance by way of an immediate response to events, e.g. where police officers conceal themselves to observe suspicious persons that they come across in the course of a routine patrol;
- covert surveillance as part of general observation activities, e.g. where plain clothes police officers are on patrol to monitor a high street crime hot-spot or prevent and detect shoplifting;
- covert surveillance not relating to specified grounds, e.g. where a specific investigation or operation does not relate to the grounds specified at s. 28(3) of the 2000 Act;
- overt use of CCTV and ANPR systems, e.g. members of the public will be aware that such systems are in use, and their operation is covered by the Surveillance Camera Code of Practice issued under the Protection of Freedoms Act 2012 that sets out a framework of good practice that includes existing legal obligations, including the processing of personal data under the Data Protection Act 2018 and a public authority’s duty to adhere to the Human Rights Act 1998. The overt use of ANPR systems to monitor traffic flows or detect motoring offences does not require an authorisation under the 2000 Act;
- certain other specific situations, e.g. the use of a recording device by a CHIS in respect of whom an appropriate use or conduct authorisation has been granted permitting him to record any information obtained in his presence (s. 48(3));
- the recording, whether overt or covert, of an interview with a member of the public where it is made clear that the interview is entirely voluntary and that the interviewer is a member of a public authority.
Directed surveillance
3.1 Surveillance is directed surveillance if the following are all true:
○ it is covert, but not intrusive surveillance;
○ it is conducted for the purposes of a specific investigation or operation;
○ it is likely to result in the obtaining of private information about a person (whether or not one specifically identified for the purposes of the investigation or operation);
○ it is conducted otherwise than by way of an immediate response to events or circumstances the nature of which is such that it would not be reasonably practicable for an authorisation under Part II of the 2000 Act to be sought.
3.2 Thus, the planned covert surveillance of a specific person, where not intrusive, would constitute directed surveillance if such surveillance is likely to result in the obtaining of private information about that, or any other person.
Where private information is acquired by means of covert surveillance of a person having a reasonable expectation of privacy, a directed surveillance authorisation is appropriate. 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 that do not involve directed surveillance.
While a person may have a reduced expectation of privacy when in a public place, covert surveillance of that person’s activities in public may still result in the obtaining of private information. This is likely to be the case where that person has a reasonable expectation of privacy even though acting in public and where a record is being made by a public authority of that person’s activities for future consideration or analysis. Note also that a person in police custody will have certain expectations of privacy.
Authorising of Directed Surveillance
An authorisation for directed surveillance should not be granted unless it is believed to be proportionate to what is sought to be achieved and necessary on the specified grounds (see para. 1.12.3.1 in relation to ‘necessary’ and ‘proportionate’). The specified grounds, contained in s. 28(3), are:
- in the interests of national security;
- for the purpose of preventing or detecting crime or of preventing disorder;
- in the interests of the economic well-being of the United Kingdom;
- in the interests of public safety;
- for the purpose of protecting public health;
- for the purpose of assessing or collecting any tax, duty, levy or other imposition, contribution or charge payable to a government department; or
- for any purpose (not falling within paras (a) to (f)) which is specified for the purposes of this subsection by an order made by the Secretary of State.
The Regulation of Investigatory Powers (Directed Surveillance and Covert Human Intelligence Sources) Order 2003 (SI 2003/3171), as amended, sets out the relevant roles and ranks for those who can authorise directed surveillance.
In the case of the police the relevant rank will generally be at superintendent level and above, and the authorisation must be in writing except in urgent cases where oral authorisation may be given (s. 43(1)(a)). A written authorisation ceases to have effect after three months beginning on the day it was granted, and if given orally will only last 72 hours unless renewed (s. 43(3)). Where it is not reasonably practicable to have the application considered by a superintendent or above, having regard to the urgency of the case, then an inspector may give the relevant authorisation which will only last 72 hours unless renewed by a superintendent. For the NCA the authorising officer is a Senior Manager (Grade 2) and for urgent cases a Principal Officer (Grade 3).
In Davies v British Transport Police (2018) IPT/17/93/H it was held that an authorisation should have been obtained where a police officer covertly observed a man on a train suspected of sexual assaults and also took photographs of the suspect.
Authorisations may also be made on an application made by a member of another police force where such police forces are party to a collaborative agreement that provides for them (s. 33(3ZA)–(3ZC)).
As with a CHIS, the Codes of Practice provide additional procedural safeguards regarding where the material sought by the surveillance is subject to legal privilege, is confidential personal information or some journalistic material. It is of interest to note that the House of Lords has held that the 2000 Act permits covert surveillance of communications between lawyers and their clients even though these may be subject to legal professional privilege (Re McE (Northern Ireland) [2009] UKHL 15).
Intrusive Surveillance
3.19 Intrusive surveillance is covert surveillance that is:
○ carried out in relation to anything taking place on residential premises, or
○ in any private vehicle, and
○ involves the presence of an individual on the premises or in the vehicle, or
○ is carried out by a means of a surveillance device.
3.21 The definition of surveillance as intrusive relates to the location of the surveillance, and not any other consideration of the nature of the information that is expected to be obtained, as it is assumed that intrusive surveillance will always be likely to result in the obtaining of private information. Accordingly, it is not necessary to consider whether or not intrusive surveillance is likely to result in the obtaining of private information.
