25 September 2000. Thanks to Yaman Akdeniz.
Source:
http://www.homeoffice.gov.UK/ripa/ripact.htm
Contents
Covert Surveillance Draft Code of Practice
Interception of Communications Draft Code of Practice
The Use of Covert Human Intelligence Sources Code of
Practice
Source:
http://www.homeoffice.gov.UK/ripa/let1and2.pdf
50 Queen Anne's Gate, London SW1H 9AT
Switchboard 020 7273 4000
www.homeoffice.gov.uk
BUILDING A SAFE, JUST AND TOLERANT SOCIETY
PUBLIC CONSULTATION ON DRAFT CODES OF PRACTICE FOR PART I CHAPTER I AND PART II OF THE REGULATION OF INVESTIGATORY POWERS ACT
A public consultation on the attached draft codes of practice on interception, covert surveillance and the use of covert human intelligence sources to be made under Section 71 of the Regulation of Investigatory Powers Act 2000 starts on 25 September 2000.
These codes intend to set out the guidelines that public authorities should follow when carrying out their functions under Part I Chapter I and Part II of the Act; and set down the authorisation procedures and the range of information required before an authorisation can be approved.
Copies of both codes are available from the Home Office website at http://www.homeoffice.gov.UK/ripa/ripact.htm. Hard copies of the Part I code may be requested by sending an email to axel.davies@homeoffice.gsi.gov.uk Hard copies of the Part II codes may be requested by sending an email to lee.philpott@homeoffice.gsi.gov.uk Requests can also be received by fax on 020 7273 3250.
HOW TO RESPOND
The consultation period begins on 25 September and the closing date for consultation responses is 17 November 2000.
The Government invites comments on all aspects of the codes and will give careful consideration to consultation responses before the codes are laid in Parliament.
Respondents should make clear whether or not they wish their comments to remain confidential. Where the response is non-confidential, respondents should provide a short summary of their concerns for publication on the Home Office website. In every case, respondents should include a brief description of the nature of their organisation and, if relevant, the groups whom they represent.
Consultation responses should be sent by email in electronic form (Word format) to: axel.davies@homeoffice.gsi.gov.uk or Lee.Philpott@homeoffice.gsi.gov.uk for Parts I and II respectively.
Hard copies of consultation responses should, if necessary, be sent to:
Axel Davies (Part I) or Lee Philpott (Part II)
Regulation of Investigatory Powers Act Implementation Team
Room 735
Home Office
50 Queen Anne's Gate
London
SW1H 9AT
Axel Davies - Tel: 020 7273 3179
Lee Philpott - Tel: 020 7273 2679
The Government intends to publish a summary of the consultation responses. These will be made available on the Home Office website at www.homeoffice.gov.UK/ripa/ripact.htm
Source: http://www.homeoffice.gov.UK/ripa/surveill.pdf
[31 pages.]
Pursuant to Section 71 of the
Regulation of Investigatory Powers Act 2000
This is a draft code published under section 71(3)(a) of the Regulation of Investigatory Powers Act 2000 and laid before both houses of Parliament.
BUILDING A SAFE, JUST AND TOLERANT SOCIETY
Surveillance plays a necessary part in modern life. It is used not just in the targeting of criminals but as a means of protecting the public from harm and preventing crime.
The covert surveillance regulated by the 2000 Act and covered by this code is in two categories: intrusive surveillance and directed surveillance. The code explains the two categories and the authorisation procedures for each. Authorisation under the 2000 Act gives lawful authority to carry out surveillance. However, surveillance operations will often also involve interference with property. This may require separate authorisation and Part 5 of this code details the procedures which give lawful authority for the interference with property and wireless telegraphy.
General observation forms part of the duties of many law enforcement officers and other public bodies. Police officers will be on patrol at football grounds and other venues monitoring the crowd to maintain public safety and prevent disorder. Officers may also target a crime "hot spot" in order to identify and arrest offenders committing crime at that location. Trading standards or HM Customs & Excise officers might covertly observe and then visit a shop as part of their enforcement function to verify the supply or level of supply of goods or services that may be liable to a restriction or tax. Such observation may involve the use of equipment to merely reinforce normal sensory perception, such as binoculars, or the use of cameras, where this does not involve systematic surveillance of an individual. It forms a part of the everyday functions of law enforcement or other public bodies. This low-level activity will not usually be regulated under the provisions of the 2000 Act.
Neither do the provisions of the 2000 Act or of this code of practice cover the use of overt CCTV surveillance systems. Members of the public are aware that such systems are in use, for their own protection, and to prevent crime.
______________________________
Chapter 1: GENERAL
Chapter 2: AUTHORISATIONS AND PRODUCT
Chapter 3: DIRECTED SURVEILLANCE
Chapter 4: INTRUSIVE SURVEILLANCE IN PART II OF 2000 ACT
Chapter 5: ENTRY ON AND INTERFERENCE WITH PROPERTY AND WIRELESS TELEGRAPHY
Chapter 6: OVERSIGHT
Chapter 7: COMPLAINTS
1.1 This code of practice provides guidance on the use of covert surveillance by public authorities under Part II of the 2000 Act. The code also provides guidance on operations involving interference with property (or wireless telegraphy) under section 5 of the 1994 Act or Part III of the 1997 Act. Interference with property or with wireless telegraphy will often take place as part of a covert surveillance operation. This code replaces the code of practice on Intrusive Surveillance issued in 1999 pursuant to section 101 (3) of the 1997 Act.
1.2 The code should be readily available, for reference purposes, at public offices of public authorities designated to carry out covert surveillance, and where people are detained in custody. It should also be readily available to any members of a public authority or department who are involved in intrusive or directed surveillance operations or procedures.
1.3 The 2000 Act provides that the code is admissible in evidence in criminal and civil proceedings. If any provision of the code appears relevant to any court or tribunal considering any such proceedings, it must be taken into account.
General extent of powers
1.4 There is nothing in the 1994 Act, the 1997 Act or Part II of the 2000 Act comparable to section 17 of the 2000 Act, the effect of which is to exclude intercept material from being adduced in evidence in court proceedings. The carrying out of the surveillance described in this code is subject to the ordinary rules for retention and disclosure of material under the Criminal Procedure and Investigations Act 1996, where those rules apply to the law enforcement body in question.
1.5 Except where specified in this code, there is no geographical limitation on where covert surveillance can be conducted. Authorisations can be given for covert surveillance taking place both inside and outside the United Kingdom. Although there may be restrictions on authorisations extending to Scotland (see section 46 of the 2000 Act)
Interpretation
1.6 In this code:
"1994 Act" means the Intelligence Services Act 1994
"1997 Act" means the Police Act 1997
"2000 Act" means the Regulation of Investigatory Powers Act 2000
"confidential material" has the same meaning as it is given in sections 98100 of the 1997 Act.
- It consists of:- matters subject to legal privilege;
- confidential personal information; or
- confidential journalistic material.
"Matters subject to legal privilege" includes both oral and written communications between a professional legal adviser and his/her client or any person representing his/her client, made in connection with the giving of legal advice to the client or in contemplation of legal proceedings and for the purposes of such proceedings, as well as items enclosed with or referred to in such communications. Communications and items held with the intention of furthering a criminal purpose are not matters subject to legal privilege1.
____________________
1 Legally privileged communications will lose their protection if there is evidence, for example, that the professional legal adviser is intending to hold or use them for 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 shall apply to the provision of professional legal advice by any agency or organisation.
"Confidential personal information" is information held in confidence concerning an individual (whether living or dead) who can be identified from it, and relating:
- To his/her physical or mental health; or
- to spiritual counselling or other assistance given or to be given, and
which a person has acquired or created in the course of any trade, business, profession or other occupation, or for the purposes of any paid or unpaid office2. It includes both oral and written information and also communications as a result of which personal information is acquired or created. 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 secrecy contained in existing or future legislation.
____________________
2 Confidential personal information might, for example, include consultations between a health professional or a professional counsellor and a patient or client, or information from a patient's medical records.
"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;
"covert surveillance" means surveillance which is carried out in a manner calculated to ensure that the persons subject to the surveillance are unaware that it is or may be taking place;
- For the purposes of authorising intrusive surveillance under the 2000 Act or interference with property under the 1997 Act, a "designated deputy":
- In relation to chief constable, means a person holding the rank of assistant chief constable who is designated to act under section 12(4) of the Police Act 1996 or section 5(4) of the Police (Scotland) Act 1967;- In relation to the Commissioner of Police for the City of London, means a person authorised to act under section 25 of the City of London Police Act 18393;
- In relation to the Director General of the National Criminal Intelligence Service or the Director General of the National Crime Squad means a person designated to act under section 8 or section 54 of the 1997 Act;
____________________
3 This will be the Assistant Commissioner of the City of London Police.
- For the purposes of authorising intrusive surveillance in residential premises under the 2000 Act and of authorising interference with property under the 1997 Act, "relevant area" or "area of operation";
- in relation to a police force maintained under section 2 of the Police Act 1996, of the metropolitan police service or of the City of London police force, is the area in England and Wales for which that force is maintained;- in relation to a police force maintained under section 1 of the Police (Scotland) Act 1967, is the area in Scotland for which that force is maintained;
- in relation to the Royal Ulster Constabulary, Northern Ireland;
- in relation to the National Criminal Intelligence Service and the British Transport Police, is the United Kingdom; and
- in relation to the National Crime Squad, is England and Wales.
- Residential premises are in the area of operation of Ministry of Defence Police, if they are premises where members of that force, under section 2 of the Ministry of Defence Police Act 1987, have the powers and privileges of a constable.
- Residential premises are in the area of operation of the Service Police, if they are premises owned or occupied by, or used for residential mrposes by a person subject to service discipline.
- For the purposes of authorising intrusive surveillance, or interference with property under the 1997 Act, "senior authorising officer" (2000 Act) or "authorising officer" (1997 Act) means:
- the chief constable of every police force maintained under section 2 of the Police Act 1996 (police forces in England and Wales outside London) or under section 1 of the Police (Scotland) Act (police forces in Scotland);- the Commissioner, Deputy Commissioner or an Assistant Commissioner of the Metropolitan Police force;
- the Commissioner of Police for the City of London;
- the Chief Constable or Deputy Chief Constable of the Royal Ulster Constabulary;
- the Director General or a designated officer of Assistant Chief Constable rank4 of the National Crime Squad; the Director General of the National Criminal Intelligence Service;
- the Chief Constable of the British Transport Police;
- the Chief Constable of the Ministry of Defence Police;
- the Provost Marshal of the Royal Navy Regulating Branch;
- the Provost Marshal of the Royal Military Police;
- the Provost Marshal of the Royal Air Force Police;
- any customs officer designated for this purpose by the Commissioners of HM Customs & Excise5;
____________________
4 This will be the Deputy Director General of the National Crime Squad.5 This will be the Chief Investigation Officer or a designated Deputy Chief Investigation Officer of the National Investigation Service, HM Customs and Excise.
- For the purposes of authorising directed surveillance under the 2000 Act an "authorising officer" means the person designated for the purposes of section 28 of the 2000 Act to grant authorisations for directed surveillance. (see the Regulation of Investigatory Powers (Prescription of Offices, Ranks and Positions) Order Sl 2000/2417.)
- a "senior official" means a member of the Senior Civil Service or a member of the senior management structure of Her Majesty's Diplomatic Service;
"working day" means any day other than a Saturday, a Sunday, Christmas
Day, Good Friday or a day which is a bank holiday under the Banking and Financial
Dealings Act 1971 in any part of the United Kingdom;
2.1 An authorisation will provide lawful authority for a public authority to carry out covert surveillance. Responsibility for authorising surveillance operations will vary, depending on whether the authorisation is for "intrusive surveillance" or "directed surveillance", and which organisation is involved. There is no requirement on the part of a public authority to obtain an authorisation for a covert surveillance operation and the decision not to obtain an authorisation would not, of itself, make an action unlawful. However, public authorities are strongly recommended to seek an authorisation where the purpose of the covert surveillance, wherever that takes place, is to obtain private information about a person, whether or not that person is the target of the investigation or operation. Obtaining an authorisation will ensure that the action is carried out in accordance with law and subject to stringent safeguards against abuse. It will also make the action less vulnerable to challenge under the Human Rights Act 1998.
2.2 Any person giving an authorisation should first satisfy him/herself that the authorisation is necessary on particular grounds and that the surveillance is proportionate to what it seeks to achieve.
2.3 Particular consideration should be given to collateral intrusion on or interference with the privacy of persons other than the subject(s) of surveillance. Such collateral intrusion or interference would be a matter of greater concern in cases where there are special sensitivities, for example in cases of premises used by lawyers or for any form of medical or professional counselling or therapy.
2.4 An application for an authorisation should include an assessment of the risk of any collateral intrusion or interference. This will be taken into account by the authorising officer, particularly when considering the proportionality of the surveillance.
2.5 Those carrying out the covert surveillance should inform the authorising officer if the operation/investigation unexpectedly interferes with the privacy of individuals who are not the original subjects of the investigation or covered by the authorisation in some other way. In some cases the original authorisation may not be sufficient and consideration should be given to whether a separate authorisation is required.
2.6 Any person giving an authorisation will also need to be aware of particular sensitivities in the local community where the surveillance is taking place or of similar activities being undertaken by other public authorities which could impact on the deployment of surveillance. In this regard, it is recommended that the authorising officers in NCIS, the National Crime Squad and HM Customs & Excise consult the local chief constable where the authorising officer considers that conflicts might arise.
Special Rules
2.7 The fullest consideration should be given in cases where the subject of the surveillance might reasonably expect a high degree of privacy, for instance in his/her home, or where there are special sensitivities.
Seal of Confession
2.8 Any person granting an authorisation is reminded that police forces in England and Wales, National Criminal Intelligence Service, the National Crime Squad and HM Customs & Excise have given an undertaking not to mount operations in circumstances covered by the Seal of the Confession. In addition, where they are satisfied that a Minister of Religion is not him/herself involved in the matter under investigation, and they believe that surveillance will lead to them intruding on spiritual counselling between the Minister and a member of his/her faith, they should, in preparing the case for authorisation, give serious consideration to discussing the matter first with a relevant senior representative of the religious authority. The views of the senior representative would be included in the request for authorisation. In this respect, spiritual counselling is defined as conversations with a Minister of Religion acting in his/her official capacity which does not amount to a sacramental confession, but where the person being counselled is seeking or the Minister is imparting forgiveness, absolution and the resolution of conscience with the authority of the Divine Being of their faith.
The guidance in paragraphs 2.9-2.11 must also be considered where such religious material is likely to be involved.
Confidential Material
2.9 The 2000 Act does not provide any special protection for 'confidential material'6. Nevertheless, such material is particularly sensitive, and is subject to additional safeguards under this code. In cases where the likely consequence of the conduct of a source would be for any person to acquire knowledge of confidential material, the deployment of the source should be subject to special authorisation.
____________________
6 See interpretation section at 1.11.
2.10 In general, any application for an authorisation which is likely to result in the acquisition of confidential material should include an assessment of how likely it is that confidential material will be acquired. Special care should be taken where the target of the investigation is likely to be involved in handling confidential material. In such circumstances it is possible that a substantial proportion of the material acquired could be confidential material. Such applications should only be considered in exceptional and compelling circumstances with full regard to the proportionality issues this raises.
2.11 The following general principles apply to confidential material acquired under Part II authorisations:
- Those handling material from such operations should be alert to anything which may fall within the definition of confidential material. Where there is doubt as to whether the material is confidential, advice should be sought from a legal adviser before further dissemination takes place;- Confidential material should not be retained or copied unless it is necessary for a specified purpose:
- Confidential material should be disseminated only where an appropriate officer (having sought advice from a legal adviser) is satisfied that it is necessary for a specific purpose;
- The retention or dissemination of such information should be accompanied by a clear warning of its confidential nature. It should be safeguarded by taking reasonable steps to ensure that there is no possibility of it becoming available, or its content being known, to any person whose possession of it might prejudice any criminal or civil proceedings related to the information;
- Confidential material should be destroyed as soon as it is no longer necessary to retain it for a specified purpose.
Combined authorisations
2.12 A single authorisation may combine:
- two or more different authorisations under Part II of the 2000 Act;- an authorisation under Part II of the 2000 Act and an authorisation under Part III of the 1997 Act;
- a warrant for intrusive surveillance under Part II of the 2000 Act and a warrant under section 5 of the 1994 Act.
2.13 For example, a single authorisation may combine authorisations for directed and intrusive surveillance. However, the provisions applicable in the case of each of the authorisations must be considered separately. Thus, a police superintendent would authorise the directed surveillance but the intrusive surveillance would need the separate authority of a chief constable and the approval of a Surveillance Commissioner.
2.14 In cases where one agency is acting on behalf of another, it is normally for the tasking agency to obtain or provide the authorisation. For example, where surveillance is carried out by the Armed Forces on behalf of the police, authorisations would be sought by the police and granted by the appropriate authorising officer. However, in cases where the Security Service is acting in support of the police or other law enforcement agencies in the field of serious crime, authorisations would normally be sought by the Security Service.
Handling and disclosure of product
2.15 Persons are reminded of the guidance relating to the retention and destruction of confidential material. To the extent that such material has not been destroyed, the following guidance may be relevant. There should be a central record held in each force, Service, Squad or authority of all authorisations. These records will be confidential and should be retained for a period of at least five years from the ending of the authorisation. Where it is believed that the records could be relevant to pending or future criminal proceedings, they should be retained for a suitable further period, commensurate to any subsequent review.
The Police (including Service Police), NCIS, the National Crime Squad and HM Customs & Excise
2.16 If there is any reason to believe that the product obtained during the course of an investigation might be relevant to that investigation or to another investigation or to pending or future civil or criminal proceedings then it should not be destroyed but retained in accordance with established disclosure requirements. Particular attention is drawn to the requirements of the code of practice issued under the Criminal Procedure and Investigations Act 1996, which requires that material should be retained if it forms part of the unused prosecution material gained in the course of an investigation, or which may be relevant to an investigation. Where it is believed that the product of intrusive surveillance may be of use in the interests of national security or of the economic well-being of the UK, that material may be retained for those purposes. Where the police or HM Customs & Excise believe that the product might be relevant to future civil or criminal proceedings, and there is a possibility that a Surveillance Commissioner might order the destruction of such material, they should inform the Surveillance Commissioner of their belief and the reasons for it.
2.17 Authorising officers must ensure compliance with the appropriate data protection requirements and any relevant codes of practice produced by individual authorities in the handling and storage of material. Where material is obtained by surveillance, which is wholly unrelated to a criminal or other investigation or to any person who is the subject of the investigation, and there is no reason to believe it will be relevant to future civil or criminal proceedings, it should be destroyed immediately. Consideration of whether or not unrelated material should be destroyed is the responsibility of the senior authorising officer.
2.18 There is nothing in the 2000 Act that prevents material obtained through the proper use of the authorisation procedures from being used in other investigations. However, the use outside the public authority which authorised the surveillance, or the courts, of any material obtained by means of covert surveillance and, other than in pursuance of the grounds on which it was obtained, should be authorised only in the most exceptional circumstances.
The Intelligence services, MOD and the Armed Forces
2.19 Each agency must ensure that arrangements are in place for the handling, storage and destruction of material obtained through the use of covert surveillance.
2.20 The relevant heads of these agencies are responsible for ensuring that
arrangements exist for securing that no information is stored by the authorities,
except in so far as is necessary for the proper discharge of their functions.
They are also responsible for arrangements to control onward disclosure.
For the intelligence services, this is a statutory duty under the Security
Services Act 1989 and the 1994 Act.
3.1 Directed Surveillance is defined in section 26(2) of the 2000 Act as surveillance which is covert, but not intrusive, and undertaken:
(a) for the purposes of a specific investigation or operation;(b) in such a manner as 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); and
(c) 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 this Part to be sought for the carrying out of the surveillance.
Private information in relation to a person includes any information relating to his private or family life.
3.2 Directed surveillance is conducted where it involves the observation of a person or persons with the intention of gathering private information to produce a detailed picture of a person's life, activities and associations. However, it does not include covert surveillance carried out by way of an immediate response to events or circumstances which, by their very nature, could not have been foreseen. For example, a plain clothes police officer would not require an authorisation to conceal himself and observe a suspicious person who he comes across in the course of a patrol.
3.3 Directed surveillance does not include any type of covert surveillance in residential premises or in private vehicles. Such activity is defined as "intrusive surveillance" and is dealt with in paragraph 4.1 onwards. However, where surveillance is carried out by a device designed or adapted principally for the purpose of providing information about the location of a vehicle (a tracking device), the activity is classed as directed surveillance and should be authorised accordingly.
3.4 Directed surveillance does not include entry on or interference with property or wireless telegraphy. These activities are subject to a separate regime of authorisation or warrantry, as set out in paragraph 5.1 onwards.
3.5 An authorisation for directed surveillance may be granted by the authorising officer where he believes that the authorisation is necessary:
- in the interests of national security7, 8 ;
- for the purposes of preventing and detecting crime or of preventing disorder;
- in the interests of the economic well-being of the UK9;
- in the interests of public safety;
- for the purpose of protecting public health10;
-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 other purpose prescribed in an order made by the Secretary of State.
____________________
7 One of the functions of the Security Service is the protection of national security. This function extends throughout the United Kingdom, save that, in Northern Ireland, the lead responsibility for investigating the threat from terrorism related to the affairs of Northern Ireland lies with the Royal Ulster Constabulary. An authorising officer in another public authority should not issue an authorisation for directed surveillance where the operation falls within the responsibilities of the Security Service as set out above, except where the operation is to be carried out by a Special Branch or has been agreed with the Service.8 The Armed Forces may also undertake operations in connection with the military threat to national security and, subject to 6, other operations in connection with national security in support of the Security Service, the RUC or other Civil Powers.
9 an authorisation for the use of surveillance on the grounds that it is in the interests of the economic well-being of the UK should only be given by one of the intelligence agencies and within the strict meaning of the term contained in the Intelligence Services Act 1994.
10 This could include investigations into infectious diseases, contaminated products or the illicit sale of pharmaceuticals.
3.6 He must also believe that the surveillance is proportionate to what it seeks to achieve.
Authorisation Procedures
3.7 The public authorities entitled to authorise directed surveillance are listed in Schedule 1 to the 2000 Act.
3.8 Authorising officers are those of rank superintendent or equivalent and above. Authorising Officers entitled to act only in urgent cases, are those of inspector rank or equivalent (see the Regulation of Investigatory Powers (Prescription of Offices, Ranks and Positions) Order 2000; SI 2000/2417). In certain circumstances the Secretary of State will be the authorising officer (see section 30(2) of the 2000 Act).
3.9 Authorisations must be given in writing by the authorising officer. However, in urgent cases, they may be given orally. In such cases, a statement that the authorising officer has expressly authorised the action should be recorded in writing as soon as is reasonably practicable. This should be done by the person to whom the authorising officer spoke but should later be endorsed by the authorising officer.
3.10 Ideally, authorising officers should not be responsible for authorising their own activities i.e. those operations/investigations in which they are directly involved. However, it is recognised that this may sometimes be unavoidable, especially in the case of small organisations, or where it is necessary to act urgently.
3.11 Authorising officers within the Police, National Criminal Intelligence Service, National Crime Squad and HM Customs & Excise may only grant authorisations on application by a member their own force, Squad, Service or organisation
SPECIAL RULES
3.12 Persons granting authorisations are reminded of the guidance relating to religious and confidential material (see paragraphs 2.8 to 2.11).
3.13 In cases where the likely consequence of the directed surveillance would be for any person to acquire knowledge of confidential material11, it is recommended that the authorising officer should be a chief constable or equivalent. In an urgent case, the authorising officer could be an assistant chief constable or equivalent.
____________________
11 See definition of confidential material in interpretation section.
Recording of telephone conversations
3.14 The interception of communications sent by post or by means of public telecommunications systems or private telecommunications systems attached to the public network may be authorised only by the Secretary of State, in accordance with the terms of Part I of the 2000 Act. Nothing in this code should be taken as granting dispensation from the requirements of that Part of the 2000 Act.
3.15 The question will frequently arise whether a surveillance device may legitimately be used in circumstances where the incidental effect will be to enable the overhearing of what is said by a party to a telephone conversation who is speaking from a location where a device is installed. The use of a surveillance device should not be ruled out simply because it may incidentally pick up one end of a telephone conversation, and such product can be treated as having been lawfully obtained. However, its use would not be appropriate where the sole purpose is to overhear speech which, at the moment of interception, is being transmitted by a telecommunications system. In such cases an application should be made for a warrant under section 5 of the 2000 Act.
3.16 Part I of the 2000 Act provides an exception to the rule that interception of telephone conversations must be warranted under that Part. Where one party to the conversation consents, and where the interception is authorised under Part II, no warrant is required. In such cases, the interception is treated as directed surveillance. For example, a person may consent to the recording of a telephone conversation sent by or to him.
3.17 However, such an authorisation cannot be used as a means of deploying recording equipment without obtaining the proper authorisation. If any other recording equipment is to be used, other than in the presence of the person who has consented to the recording, an intrusive surveillance authorisation or authorisation for interference with property should be obtained, where necessary.
Information to be provided in applications for authorisation
3.18 A written application for authorisation for directed surveillance should record:
- the action to be authorised, including any premises or vehicles involved;- the identities, where known, of those to be the subject of directed surveillance;
- an account of the investigation or operation;
-the grounds on which authorisation is sought (eg for the detection of crime or the protection of public health);
- why the directed surveillance is considered to be proportionate to what it seeks to achieve;
- level of authority required or recommended (where that is different);
- an explanation of the information which it is desired to obtain as a result of the authorisation;
- any potential for collateral intrusion; the likelihood of acquiring any confidential/religious material.
and subsequently record whether authority was given or refused, by whom and the time and date.
3.19 Additionally, in urgent cases, a written application should record (as the case may be):
- reasons why the case was considered to be urgent;- reasons why the person entitled to act in urgent cases considered that it was not reasonably practicable for the authorisation to be considered by a person otherwise entitled to act.
3.20 Where the application is oral, the detail referred to above should be recorded in writing as soon as reasonably practicable.
Duration of authorisations
3.21 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.
3.22 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 was granted.
Renewals
3.23 If at any time before an 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/she may renew it in writing for a further period, beginning with the day when the authorisation would have expired but for the renewal. This will normally be for a period of 3 months unless it is a case to which paragraphs 3.24 or 3.22 applies. Authorisations may be renewed more than once, provided they continue to meet the criteria for authorisation.
3.24 If at any time before an authorisation for directed surveillance, granted on the grounds of it being in the interests of national security or in the interests of the economic well-being of the UK, would cease to have effect, and an authorising officer who is member of the security or intelligence services considers it necessary for it to continue, he/she may renew it for a further period of six months, beginning with the day on which it would have ceased to have effect but for the renewal.
3.25 All applications requests for the renewal of an authorisation for directed surveillance should record:
- whether this is the first renewal or every occasion on which the authorisation has been renewed previously;- the information as listed in paragraph 3.18 as it applies at the time of the renewal;
together with
- any significant changes to the information in the previous authorisation;
- the reasons why it is necessary to continue with the surveillance;
- the content and value to the investigation or operation of the information so far obtained by the surveillance;
- an estimate of the length of time the surveillance will continue to be necessary.
Cancellations
3.26 The person who granted or last renewed the authorisation must cancel
it if he/she is satisfied that the directed surveillance no longer meets
the criteria for authorisation. The duty to cancel may fall on other person
in accordance with section 45.
4.1 Intrusive surveillance is defined in section 26(3) of the 2000 Act as covert surveillance that is:
(a) is carried out in relation to anything taking place on any residential premises or in any private vehicle; and(b) involves the presence of an individual on the premises or in the vehicle or is carried out by means of a surveillance device.
4.2 Where surveillance is carried out in relation to anything taking place on any premises or in any vehicle by means of a device without that device being present on the premises or in the vehicle, it is not intrusive unless the device consistently provides information of the same quality and detail as might be expected to be obtained from a device actually present on the premises or in the vehicle. Thus, an observation post outside premises, which provides a limited view and no sound of what is happening inside the premises would not be considered as intrusive surveillance.
4.3 Residential premises are defined in section 48 of the 2000 Act and might be in the form of a house, a yacht, a railway arch or other makeshift shelter. The definition includes hotel rooms, bedrooms in barracks and prison cells but not any common area to which a person is allowed access in connection with his or her occupation of such accommodation e.g. a hotel lounge12.
____________________
12 In cases of doubt about what constitutes residential premises, officers should seek guidance from the appropriate Commissioner through the recognised contact point in each agency.
4.4 A private vehicle is defined in section 48 of the 2000 Act as any vehicle which is used primarily for the private purpose of the person who owns it or of a person otherwise having the right to use it. A person does not have a right to use a motor vehicle if his right to use it derives only from his having paid, or undertaken to pay, for the use of the vehicle and its driver for a particular journey.
4.5 In many cases, a surveillance operation may involve both intrusive surveillance and interference with property. In such cases, both activities need authorisation. This can be done as a combined authorisation (see paragraphs 2.12-2.14).
4.6 An authorisation for intrusive surveillance may be issued by the Secretary of State (for intelligence services, MOD and Armed Forces) or by a senior authorising officer (for police and HM Customs & Excise). Neither may authorise intrusive surveillance unless he believes -
(a) that the authorisation is necessary on the grounds that it is:
- in the interests of national security13;
- for the purpose of preventing or detecting serious crime; or
- in the interests of the economic well-being of the UK14;
and
(b) the authorised surveillance is proportionate to what it seeks to achieve.
____________________
13 A senior authorising officer of a law enforcement agency should not issue an authorisation for intrusive surveillance where the operation is within the responsibilities of the security and intelligence agencies and properly falls to be authorised by warrant issued by the Secretary of State under Part II of the 2000 Act.14 see footnote 8.
4.7 A factor which must be taken into account in deciding whether an authorisation is necessary and proportionate is whether the information which it is thought necessary to obtain by means of the intrusive surveillance could reasonably be obtained by other means.
Special Rules
4.8 Persons granting authorisations are reminded of the guidance in paragraphs 2.8 - 2.11 relating to religious and confidential material.
Use of covert human intelligence source with technical equipment
4.9 A source wearing or carrying a surveillance device and invited into residential premises or a private vehicle does not require special authorisation to record activity taking place inside those premises or vehicle. Authorisation for the use of that covert source may be obtained in the usual way15. The source should not, however, use an invitation into residential premises or a private vehicle as a means of installing equipment without the proper authorisation being in place. If the equipment is to be used, other than in the presence of the covert source, an intrusive surveillance authorisation and, if necessary, interference with property authorisation, should be obtained.
____________________
15 see the code of practice for the use of covert human intelligence sources.
Authorisations Procedures for Police, National Criminal Intelligence Service, the National crime Squad and HM Customs & Excise
Authorisations
4.10 Authorisations should generally be given in writing by the senior authorising officer. However, in urgent cases, they may be given orally. In an urgent oral case, a statement that the senior authorising officer has expressly authorised the conduct should be recorded in writing as soon as is reasonably practicable. This should be done by the person with whom the senior authorising officer spoke.
4.11 If the senior authorising officer is unable to act in any of the circumstances mentioned in section 12(4) of the Police Act 1996, section 5(4) of the Police (Scotland) Act 1967, section 25 of the City of London Police Act 1839, or sections 8 and 54 of the 1997 Act, an authorisation can be granted in writing or, in urgent cases, orally by the designated deputy.
4.12 In an urgent case, where it is not reasonably practicable having regard to the urgency of the case for the designated deputy to consider the application, a written authorisation may be granted by a person entitled to act under section 34(4) of the 2000 Act.
Applications
4.13 A police or customs authorisation cannot be granted unless on an application made by a member of the same service, squad, force or organisation. Where the surveillance is carried out in relation to any residential premises, the authorisation cannot be granted unless the premises are in the area of operation of the force, squad etc.
4.14 Applications should be in writing and should specify;
- the nature of the surveillance; the residential premises or private vehicle in relation to which the surveillance will take place;- the identity of those to be the subject of the intrusive surveillance (where known);
- the identity of those who are likely to be affected by collateral surveillance (where known);
- how the authorisation criteria (paragraph 4.6 and 4.7) are considered to be met; and
- whether the operation or investigation is likely to lead to the acquisition of any religious/confidential material.
A record should subsequently be made of whether authority was given or refused, by whom and the time and date.
4.15 Additionally, in urgent cases, the application should record
- the reasons why the case was considered to be urgent; and- reasons why (if relevant) the person granting the authorisation did not consider it reasonably practicable for the application to be considered by the senior authorising officer or the designated deputy.
Approval of Surveillance Commissioners
4.16 A police or customs authorisation for intrusive surveillance, except where the urgency pro dure is used, will not take effect until it has been approved by a Surveillance Commissioner and the authorising officer has been notified of this (see section 36(2) of the 2000 Act).
4.17 Where the urgency procedure is used, the authorisation will take effect from the time it is granted provided notice is given to the Surveillance Commissioner in accordance with section 35(3)(b) (see section 36(3) of the 2000 Act).
Notifications
4.18 Where a person grants, renews or cancels an authorisation, he must, as soon as is reasonably practicable, give notice in writing to a Surveillance Commissioner, in accordance with whatever arrangements have been made by the Chief Surveillance Commissioner.
4.19 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 Surveillance 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.
4.20 There may be cases that become urgent after approval has been sought but before a response has been received from a Surveillance Commissioner. In such a case, the authorising officer should give a fresh authorisation and notify the Surveillance Commissioner that the case is urgent (pointing out that it has become urgent since the previous notification). In these cases, the authorisation will take effect immediately.
4.21 The information to be included in the notification to the Surveillance Commissioner is set out in the Regulation of Investigatory Powers (Notification of Authorisations etc.) Order 2000; SI 2000
Secretary of State Authorisations
4.22 An intrusive surveillance authorisation for the any of the intelligence services, the Ministry of Defence, the Armed Forces or any other public authority designated for this purpose requires a Secretary of State authorisation/warrant, unless they are acting on behalf of another public authority that has obtained an authorisation. In this context, Secretary of State can mean any Secretary of State, although an authorisation/warrant would normally be obtained from the Secretary of State of the relevant department.
4.23 Intelligence services authorisations must be made by issue of a warrant. Such warrants will generally be given in writing by the Secretary of State. In urgent cases, a warrant may be signed (but not renewed) by a senior official, provided the Secretary of State has expressly authorised this.
4.24 Applications to the Secretary of State for authorisations should specify those matters listed in paragraph 4.14.
All intrusive surveillance authorisations
4.25 Paragraphs 4.26 to 4.41 deal with the cancelling, renewal and duration of authorisations. Unless otherwise specified the guidance below applies to both Secretary of State and police and customs authorisations.
Duration of Authorisations
Police and customs
4.26 A written authorisation granted by a senior authorising officer or a designated deputy 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.
Police and customs
4.27 Oral authorisations given in urgent cases by authorising officers or their designated deputies, and written authorisations given by those only entitled to act in urgent cases (see paragraph 4.12), will cease to have effect (unless renewed) at the end of the period of 72 hours beginning with the time when they took effect.
Intelligence services
4.28 A warrant issued by the Secretary of State will cease to have effect at the end of a period of six months beginning with the day on which it was issued.
4.29 Warrants expressly authorised by a Secretary of State, and signed on his behalf by a senior civil servant, will cease to have effect at the end of the second working day following the day of issue of the warrant unless renewed by the Secretary of State.
Renewals
Police and customs
4.30 If at any time before an authorisation expires the senior authorising officer or, in his/her absence, the designated deputy considers the authorisation should continue to have effect for the purpose for which it was issued, he/she may renew it in writing for a further period of three months.
4.31 As with the initial authorisation, the senior authorising officer must (unless it is a case to which the urgency procedure applies) seek the approval of a Surveillance Commissioner. The renewal will take effect from the time the Surveillance Commissioner has approved the renewal and the person who gave the authorisation has been notified (but not before the day on which the authorisation would have otherwise ceased to have effect). In urgent cases, a renewal can take effect immediately (provided this is not before day on which the authorisation would have otherwise ceased to have effect).
Intelligence services authorisations
4.32 If at any time before an intelligence service warrant expires, the Secretary of State considers it necessary for the warrant to be renewed for the purpose for which it was issued, he may renew it in writing for a further period of six months, beginning with the day on which it would have ceased to have effect, but for the renewal.
Other Secretary of State authorisations
4.33 If at any time before the day on which a Secretary of State authorisation expires, the Secretary of State considers it necessary for the warrant to be renewed for the purpose for which it was issued, he may renew it in writing for a further period of three months, beginning with the day on which it would have ceased to have effect, but for the renewal.
4.34 All applications for a renewal of an authorisation or warrant should record:
- whether this is the first renewal or every occasion on which the warrant/authorisation has been renewed previously;- the information listed in (paragraph 4.14) as it applies at the time of the renewal;
- any significant changes to the information in the previous application for a warrant/authorisation;
- why it is necessary to continue with the intrusive surveillance;
- the content and value to the investigation of the product so far obtained under the surveillance;
- the results of periodic reviews of the operation by a senior officer. - an estimate of the length of time the intrusive surveillance will continue to be necessary.
4.35 Where a police or customs authorisation is being renewed the Surveillance Commissioner must be notified. See section 35 and 36 of the 2000 Act and the Regulation of Investigatory Powers (Notification of Authorisations etc.) Order 2000; SI 2000/[ ].
4.36 Authorisations may be renewed more than once, if necessary, and the renewal should be kept/recorded as part of the "authorisation record" (see paragraph 4.42).
Reviews and Cancellations
4.37 A person who has granted/renewed an authorisation must cancel it if satisfied that the action authorised by it is no longer necessary.
4.38 Regular reviews of authorisations should be undertaken to assess the need for the surveillance to continue. The results of a review should be recorded on the authorisation record (see paragraph 4.42). Particular attention is drawn to the need to frequently review16 authorisations where the intrusive surveillance involves confidential material or collateral surveillance on persons other than those who are the subjects of surveillance.
____________________
16 The senior authorising officer should determine how often a review should take place. This should be as frequently as is considered necessary and practicable.
4.39 Surveillance Commissioners must be notified where police or customs authorisations are cancelled (see the Regulation of Investigatory Powers (Notification of Authorisations etc.) Order 2000; SI 2000/[ ].
Ceasing of surveillance activity
4.40 As soon as the decision is taken that an intrusive surveillance operation should be discontinued, the instruction must be given to those involved in the operation to stop listening, watching or recording the activities of the subject(s). The date when such an instruction was given should be recorded in the authorisation record (see paragraph 4.42) and the notification of cancellation where relevant.
Police and customs
4.41 In cases where an authorisation is quashed/cancelled by a Surveillance Commissioner, the senior authorising officer must immediately instruct those carrying out the surveillance to stop listening, watching or recording the activities of the subject of the authorisation. The date (and time, if appropriate) when such an instruction was given should be recorded on the authorisation record.
Authorisation Records
4.42 In all cases, the relevant authority should maintain:
- a copy of the warrant/authorisation and where relevant the notification to the Surveillance Commissioner and notification of approval given by him or her;- a record of the period over which the surveillance has taken place (including any significant suspensions of coverage);
- a record of the result of periodic reviews of the authorisation (paragraph 4.37); and
- a copy of any renewal of a warrant or authorisation, together with the supporting documentation submitted when the renewal was requested.
- the date and time when any instruction was given by the senior authorising officer to cease intrusive surveillance.
5.1 The 1994 Act and 1997 Act provide lawful authority for the interference with property and wireless telegraphy by the security and intelligence agencies and police, the National Crime Squad, NCIS, HM Customs & Excise. Many of the same conditions apply to this type of operation (known by the intelligence services as property warrant operations) as apply to intrusive surveillance. Where this is so, reference is made to earlier parts of the code.
5.2 In many cases a surveillance operation may involve both covert intrusive surveillance and interference with property. In such cases, both activities need authorisation to be in accordance with the law. This can be done as a combined authorisation, although the criteria for authorisation of each activity must be considered separately (see paragraph 2.12).
Authorisations for interference with property by the police, National Criminal Intelligence Service, the National Crime Squad and HM Customs & Excise
5.3 Responsibility for such authorisations rests with the "authorising officer' as defined in the 1997 Act, that is the chief constable or equivalent. Authorisations require the personal authority of the authorising officer (or his designated deputy) except in urgent situations, where it is not reasonable practicable for the application to be considered by such person. The person entitled to act in such cases are set out in section 94 of the 1997 Act.
5.4 Authorisations under the 1997 Act may not be necessary where the authority is acting with the consent of a person able to give permission in respect of relevant property. However consideration should still be given to the need to obtain an authorisation under the 2000 Act.
5.5 Authorisations may only be given by an authorising officer on application by a member of his or her own force, Squad, Service or authority for interference with property and wireless telegraphy within the authorising officer's own area of operation (see paragraph 1.6 for interpretation of "relevant area"). However, an authorising officer may authorise the taking of action outside the relevant area solely for the purpose of maintenance or retrieval of devices or equipment.
5.6 Any person giving an authorisation for interference with property must believe that:
- the action is necessary for the purpose of preventing or detecting serious crime (or in the case of the Royal Ulster Constabulary, in the interests of national security); and- the action is proportionate to what it seeks to achieve.
5.7 The authorising officer must take into account whether where it is thought necessary to achieve by the authorised conduct could reasonably be achieved by other means.
5.8 Any person giving an authorisation for interference with property has the same need to be aware of any impact on local communities in the same way as other covert surveillance operations. To ensure that the authorising officer is aware of any particular local community sensitivities, it is recommended that authorising officers in NCIS, the National Crime Squad and HM Customs & Excise consult the local chief constable, where they consider this appropriate. In the case of Northern Ireland, the Chief Constable of the RUC should be informed of any surveillance operation undertaken by other law enforcement agencies which involve those officers in maintaining or retrieving covert surveillance equipment within the RILIC area.
Special Rules
5.9 Any person giving an authorisation is reminded of the guidance relating to confidential and religious material.
Cases requiring prior approval of a Surveillance Commissioner
5.10 In certain cases, an authorisation for interference with property will not take effect until it has been approved by a Surveillance Commissioner and the authorising officer has been notified (unless the urgency procedures are used). These are cases where the person giving the authorisation believes that:
- any of the property specified in the authorisation:- is used wholly or mainly as a dwelling or as a bedroom in a hotel; or- constitutes office premises; or
- the action authorised is likely to result in any person acquiring knowledge of:
- matters subject to legal privilege;- confidential personal information; or
- confidential journalistic material.
5.11 "Office premises" are defined, by reference to section 1(2) of the Offices, Shops and Railway Premises Act 1963, as any building or part of a building whose sole or principal use is as an office or for office purposes (which means purposes of administration, clerical work, handling money and telephone or telegraph operation).
Authorisations for interference with property by the intelligence services
5.12 Before granting a warrant, the Secretary of State must:
- think it necessary for the purpose of assisting the relevant agency in carrying out its functions;- be satisfied that the taking of the action is proportionate to what the action seeks to achieve; and
- be satisfied that there are satisfactory arrangements in force under the 1994 Act or the Security Services Act 1989 in respect of disclosure of any material obtained by means of the warrant, and that material obtained will be subject to those arrangements.
5.13 An application for a warrant must be made by a member of the intelligence agencies for the taking of action in relation to that agency. In addition, the Security Service may make an application for a warrant to act on behalf of the Secret Intelligence Service (SIS) and GCHQ. SIS and GCHQ may not be granted a warrant for action in support of the prevention or detection of serious crime which relates to property in the British Islands
Authorisation procedures
5.14 The same procedures apply to applications for interference with property as for authorisations for intrusive surveillance under Part II of the 2000 Act depending on whether it is interference under the 1994 or 1997 Act. In detail:
- authorisations and applications (see paragraphs 4.10-4.22);- duration (see paragraphs 4.26-4.28);
- renewals (see paragraphs 4.30-4.36);
- reviews and cancellations (see paragraphs 4.37-4.39);
- authorisation records (see paragraphs 4.42);
- instructions for the ceasing of interference with property (see paragraph 4.40-4.41);
- the handling and disclosure of product (see paragraphs 2.15-2.20).
Notifications to Surveillance Commissioners - Police and HM Customs & Excise
5.15 The notifications to Surveillance Commissioners in relation to the authorisation, renewal and cancellation of authorisations in respect of interference with property should be accordance with the requirements of the Police Act 1997 (Notifications of Authorisations etc) Order 1998; SI 1998/3241.
5.16 The intelligence services should provide the same information, as and where appropriate, when making applications, requests for renewal and requests for cancellation of property warrants.
Retrieval of equipment
5.17 Where a Surveillance Commissioner quashes or cancels an authorisation or renewal, he/she will, if there are reasonable grounds for doing so, order that the authorisation remain effective for a specified period, to enable officers to retrieve anything left on the property by virtue of the authorisation. He or she can only do so if the authorisation or renewal makes provision for this. A decision by the Surveillance Commissioner not to give such an order can be the subject of an appeal to the Chief Surveillance Commissioner.
5.18 Because of the time it can take to remove equipment from the person's
property it may also be necessary to renew a property warrant in order to
complete a retrieval. Applications to the Secretary of State for renewal
should state why the operation is being or has been closed down, why it has
not been possible to remove the equipment and any timescales for removal,
where known.
6.1 The 2000 Act provides for a Chief Surveillance Commissioner, Surveillance Commissioners and Assistant Surveillance whose remit is to provide independent oversight of the use of the powers contained within Part II by the police (including the Service Police and the Ministry of Defence Police), NCIS, the National Crime Squad, British Transport Police, HM Customs & Excise, the Ministry of Defence and HM Armed Forces in Northern Ireland and other public authorities listed in schedule 1.
6.2 The Intelligence Services Commissioner remit is to provide independent oversight of the use of the powers contained within Part II by the Security Service, Secret Intelligence Service, GCHQ and the Ministry of Defence and HM Armed Forces (excluding the Service Police, Ministry of Defence Police and the Ministry of Defence and HM Armed Forces in Northern Ireland);
6.3 This code does not cover the exercise of the Commissioner's functions.
However, it will be the duty of any person who uses these powers to comply
with any request made by the Commissioner to provide any information as he
requires for the purpose of enabling him to discharge his functions.
7.1 The 2000 Act establishes an independent Tribunal. This Tribunal will be made up of senior members of the legal profession or judiciary and is independent of the Government. The Tribunal has full powers to investigate and decide any case within its jurisdiction.
7.2 This code does not cover the exercise of the Tribunal's functions. However, details of the relevant complaints procedure should be readily available, for reference purposes, at public offices of public authorities designated in the Act to carry out interception. Where this is not possible, copies should be made available by post or e-mail.
Source: http://www.homeoffice.gov.UK/ripa/intercep.pdf
[30 pages.]
DRAFT CODE OF PRACTICE
Pursuant to Section 71 of the
Regulation of Investigatory Powers Act 2000
This is a draft code published under section 71(3)(a) of the Regulation of Investigatory Powers Act 2000 and laid before both houses of Parliament.
BUILDING A SAFE, JUST AND TOLERANT SOCIETY
___________________________________
Section 1 : GENERAL
Section 2 : INTERCEPTION WITHOUT A WARRANT
Section 3 : INTERCEPTION WITH A WARRANT
Section 4 : INTERCEPTION WARRANTS (SECTION 8(1))
Section 5 : WARRANTS UNDER MUTUAL LEGAL ASSISTANCE AGREEMENTS
Section 6 : INTERCEPTION WARRANTS (SECTION 8(4))
Section 7 : SAFEGUARDS
Section 8 : DISCLOSURE TO ENSURE FAIRNESS IN CRIMINAL PROCEEDINGS
Section 9 : OVERSIGHT
Section 10 : COMPLAINTS
___________________________________
1.1 This code of practice relates to the powers and duties conferred or imposed under Chapter I of Part I of the Regulation of Investigatory Powers Act 2000 ("the Act"). It therefore provides guidance on the procedures that must be followed before interception of communications can take place under those provisions
1.2 The Code should be readily available, for reference purposes, at public offices of public authorities designated in the Act to carry out interception. Where this is not possible, copies should be made available by post or e-mail. It should also be readily available to any members of an agency or department who are involved in interception operations or procedures.
1.3 The Act provides that the Code is admissible as evidence in criminal and civil proceedings. If any provision of the Code appears relevant to a question before any court or tribunal considering any such proceedings, or to the Tribunal established under the Act, or to one of the Commissioners responsible for overseeing the powers conferred by the Act, it must be taken into account.
2.1 Section 1(5) of the Act permits interception without a warrant in the following circumstances:
where it is authorised by or under section 3 or 4; where it takes place in accordance with a warrant under section 5; or where it is in exercise, in relation to any stored communication, of some other statutory power exercised for the purpose of obtaining information or of taking possession of any document or other property.
Interception in accordance with a warrant under section 5 is dealt with under Part Four of this Code.
For interception which takes place without a warrant, there is no prohibition on the evidential use of any material that is obtained as a result.
Interception with the Consent of both Parties
2.2 Section 3(1) of the Act authorises the interception of a communication if both the person sending the communication and the intended recipient(s) have consented to its interception, or where the person conducting the interception has reasonable grounds for believing that both parties have consented to the interception.
Interception with the Consent of one Party
2.3 Section 3(2) of the Act authorises the interception of a communication if either the sender or intended recipient of the communication has consented to its interception, and surveillance by means of that interception has been authorised under Part 11 of the Act.
2.4 This surveillance activity is regulated by Part 11 of the Act. It is dealt with in Chapter 3 of the Covert Surveillance Code of Practice and in Chapter 2 of the Covert Human Intelligence Sources Code of Practice.
Interception for the Purposes of a Communication Service Provider
2.5 Section 3(3) of the Act permits a communication service provider or a person acting upon their behalf to carry out interception for purposes connected with the operation of that service or for purposes connected with the enforcement of any enactment relating to the use of the communication service. This provision does not allow the police or other law enforcement bodies to carry out interception.
Lawful Business Practice
2.6 Section 4(2) of the Act enables the Secretary of State to make regulations authorising conduct for the purpose, in connection with the carrying on of any business, of monitoring or keeping a record of communications by means of which transactions are entered into in the course of that business, or other communications relating to that business or taking place in the course of its being carried on.
The regulations, when made, will be available on the Department of Trade
and Industry website at:
www.dti.gov.uk/cii/regulation.htm
3.1 There are a small number of persons by whom, or on behalf of whom applications for interception warrants may be made. The persons are:
Any application made on behalf of one of the above must be made by a person holding office under the Crown.
3.2 All interception warrants are authorised personally by the Secretary of State1. Even where the urgency procedure is followed, the Secretary of State personally authorises the warrant, although it is signed by a senior official. Most warrants will be authorised under section 8(1) of the Act. There is also provision in the Act for warrants issued for the purpose of an international assistance agreement. These are described in Part 5.
____________________
1 Interception warrants issued on "serious crime" grounds are also authorised by Scottish Ministers, by virtue of arrangements under the Scotland Act 1998. In this Code, references to the "Secretary of State" should be read as including Scottish Ministers where appropriate. The functions of the Scottish Ministers also cover renewal and cancellation arrangements.
3.3 The remaining warrants, again personally authorised by the Secretary of State, are warrants relating to the interception of external communications, which are defined by the Act to be those which are sent or received outside the British Islands. They include those which are both sent and received outside the British Islands, whether or not they pass through the British Islands in the course of their transit. They do not include communications both sent and received in the British Islands, even if they pass outside the British Islands en route. Such warrants comply with section 8(4) of the Act
General Principles for Authorising Interception
3.4 Before issuing an interception warrant, the Secretary of State must believe that what the action seeks to achieve is necessary and that the conduct authorised by the warrant is proportionate to what it seeks to achieve. Particular consideration should be given in cases where the subject of the interception might reasonably assume a high degree of privacy or where there are special sensitivities, such as where interception might involve communications between a minister of religion and an individual relating to the latter's spiritual welfare, or where matters of medical or journalistic confidentiality or legal professional privilege may be involved.
3.5 Particular consideration should also be given to any infringement of the privacy of individuals who are not the prime target of the interception, especially where communications relating to religious, medical, journalistic or legally privileged material may be involved. An application for an interception warrant should draw attention to any circumstances which give rise to an unusual degree of collateral infringement of privacy. This should be taken into account by the Secretary of State. Should an interception operation reach the point where individuals other than the subject of the authorisation are identified as directly relevant to the operation, consideration should be given to applying for separate warrants covering those individuals.
Communications Subject to Legal Professional Privilege
3.6 For the purpose of this Code the definitions contained in section 78 of the Police Act 1997 are adopted. These provide that the following communications are privileged:-
Legal privilege does not apply to communications made or items held with the intention of furthering a criminal purpose (whether the lawyer is acting unwittingly or culpably).
3.7 The Act does not provide any special protection for legally privileged communications. Nevertheless, intercepting such communications is particularly sensitive and is therefore subject to additional safeguards under this Code.
3.8 In general, any application for a warrant which is reasonably likely to result in the interception of legally privileged communications should include, in addition to the reasons why it is considered necessary for the interception to take place, an assessment of how likely it is that communications which are subject to legal privilege will be intercepted. This assessment will be taken into account by the Secretary of State in deciding whether a warrant is necessary for a purpose under section 5(3) of the Act. In such circumstances, the Secretary of State would be able to impose additional conditions such as regular reporting arrangements so as to be able to exercise his discretion on whether a warrant should continue to be authorised.
3.9 Special care should be taken where a lawyer is the target of an investigation. It is possible that a substantial proportion of the communications which will be intercepted will be between the lawyer and his client(s) and will be subject to legal privilege. Such applications will be considered only in exceptional and compelling circumstances with full regard to the proportionality issues which this raises.
3.10 In addition to safeguards governing the handling and retention of intercept material as provided for in section 15 of the Act, the following general principles should apply to intercept material subject to legal privilege:
Communications involving Medical, Religious, and Journalistic Material
3.11 The same criteria will be applied as apply to matters of legal professional privilege.
Implementation of Warrants
3.12 After a warrant has been issued it will be forwarded to the person to whom it is addressed, in practice the intercepting agency which submitted the application. The Act then allows the intercepting agency to carry out the interception, or to require the assistance of other persons in giving effect to the warrant (section 11 (1 )).
Provision of Reasonable Assistance
3.13 Any provider of a communications service in the United Kingdom may be required to provide assistance in effecting an interception on their communication system. The Act places a requirement to take all such steps for giving effect to the warrant as are notified to them (section 11 (4)). But the steps which may be required of a communication service provider are limited to those which it is reasonably practicable to take (section 11 (5)).
3.14 Where the intercepting agency requires the assistance of a communications service provider in order to implement a warrant, they should provide the following to the communications service provider:
Provision of Intercept Capability
3.15 The persons who may be required to provide an intercept capability are persons providing a public postal or telecommunications service (communication service providers), or who plan to do so. These persons may have a notice served upon them by the Secretary of State under section 12(2), which must fall within the scope of any order made by the Secretary of State and approved by Parliament, setting out in more general terms the requirements for providing assistance with interception warrants. No communication service provider is required to provide an intercept capability unless they have been served with a notice under section 12(2).
3.16 Individual notices served on particular communication service providers under this order may specify:
Duration of Interception Warrants
3.16 All interception warrants are valid for an initial period of three months. Upon renewal, warrants authorised on serious crime grounds are valid for a further period of three months. Warrants renewed on national security or economic well-being grounds are valid for a further period of six months. Urgent authorisations are valid for five working days unless endorsed by the Secretary of State.
3.17 Where modifications take place, the warrant expiry date remains unchanged.
However, where the modification takes place following the urgency provisions,
the modification instrument expires after five working days unless endorsed
following the routine procedure.
4.1 This section applies to interception of communications by means of a warrant complying with section 8(1) of the Act. This kind of warrant may be issued in respect of the interception of communications carried on any telecommunications systems as defined in section 2(1) of the Act (including a private telecommunication system). Responsibility for the authorisation of all such interception rests with the Secretary of State.
Application for a Section 8(1) Warrant
4.2 An application for a warrant is made to the Secretary of State. Interception warrants are addressed to the person who submitted the application who may then serve a copy upon such providers of communication services as he believes will be able to assist in implementing the interception. The oversight regime allows the Interception Commissioner to inspect the application upon which the Secretary of State based his decisions, and the applicant may be required to justify the content. An application for a warrant, a copy of which must be retained by the applicant, should contain the following minimum information:
____________________
2 This assessment is normally based upon information provided by the relevant communication service provider.
Authorisation of a Section 8(1) Warrant
4.3 Before issuing a warrant under section 8(l), the Secretary of State must believe the warrant is necessary3
____________________
3 A single warrant can be justified on more than one of the grounds listed.4 The information sought must relate to the acts or intentions of persons outside the British Islands (section 5(5)).
The Secretary of State must also consider that the conduct authorised by the warrant is proportionate to what it seeks to achieve (section 5(2)(b)). In considering necessity and proportionality, the Secretary of State must take into account whether the information sought could reasonably be obtained by other means (section 5(4)).
Urgent Authorisation of a Section 8(1) Warrant
4.4 The Act makes provision (section 7(l)(b)) for cases in which an interception warrant is required urgently, yet the Secretary of State is not available to personally sign the warrant. In these cases the Secretary of State will still personally authorise the interception but the warrant is issued by a senior official, following discussion of the case between officials and the Secretary of State. The Act restricts issue of warrants in this way to urgent cases where the Secretary of State has himself expressly authorised the issue of the warrant (section 7(2)(a)), and requires the warrant to contain a statement to that effect (section 7(4)(a)). A warrant issued under the urgency procedure lasts for five working days unless endorsed by the Secretary of State, in which case it expires after 3 months in the same way as other 8(1) warrants, unless renewed.
Format of a Section 8(1) Warrant
4.5 Each warrant comprises two sections, an unscheduled part, a copy of which each communication service provider will receive, and a scheduled part, only the relevant part of which each communication service provider will receive.
4.6 The unscheduled part should include:
The name or description of the interception subject or of a set of premises in relation to which the interception is to take place
4.7 The scheduled part of the warrant, will comprise one or more schedules. Each should contain:
____________________
5 This may include addresses, numbers, apparatus or other factors, or combination of factors, that are to be used for identifying communications (section 8(2)).
Modification
4.8 Interception warrants may be modified under the provisions of section 10. The unscheduled part of a warrant may only be modified by the Secretary of State or, in an urgent case, by a senior official with the express authorisation of the Secretary of State. In these cases, a statement of that fact must be endorsed on the modifying instrument, and the modification ceases to have effect after five working days unless it is endorsed by the Secretary of State's signature. Otherwise the modification expires upon the expiry date of the warrant.
4.9 Scheduled parts of a section 8(1) interception warrant may be modified by the Secretary of State, or by a senior official acting upon his behalf6. A modification to the scheduled part of the warrant may include the addition of a new schedule relating to a communication service provider on whom a copy of the warrant has not been previously served. Modifications made in this way expire at the same time as the warrant expires.
____________________
6 The senior official who may modify the unscheduled part of the warrant may not be the person to whom the warrant is addressed, nor any of their subordinates (s10(6)).
4.10 In an urgent case, and where the warrant specifically authorises it, scheduled parts of a warrant may be modified by the person to whom the warrant is addressed or a subordinate (where the subordinate is identified in the warrant). Modifications of this kind last for five working days unless the modification instrument is endorsed by the Secretary of State or by a senior official acting on his behalf. Where the modification is endorsed in this way, the modification expires upon the expiry date of the warrant.
Renewal of a Section 8(1) Warrant
4.11 The Secretary of State may renew a warrant at any point before its expiry date. Applications for renewals must be made to the Secretary of State and should contain an update of the matters outlined in paragraph 4.2 above. In particular, the applicant should give an assessment of the value of interception to the operation to date and explain why he considers that interception continues to be necessary for the section 5(3) purposes.
4.12 Where the Secretary of State is satisfied that the interception continues to meet the requirements of the Act he may renew the warrant. Where the warrant is issued on serious crime grounds, the renewed warrant is valid for a further three months. Where it is issued on national security or economic wellbeing grounds, the renewed warrant is valid for six months. These dates run from the date of signature on the renewal instrument.
4.13 A copy of the warrant renewal instrument will be forwarded by the intercepting agency to all relevant communication service providers on whom a copy of the original warrant instrument and a schedule have been served, providing they are still actively assisting. A warrant renewal instrument will include the reference number of the warrant and description of the person or premises described in the warrant.
Warrant Cancellation
4.14 The Secretary of State is under a duty to cancel an interception warrant if, at any time before its expiry date, he is satisfied that the warrant is no longer necessary on grounds falling within section 5(3) of the Act. In practice, cancellation instruments will usually be signed by a senior official on his behalf.
4.15 The cancellation instrument should be addressed to the person to whom the warrant was issued (the intercepting agency) and should include the reference number of the warrant and the description of the person or premises specified in the warrant. A copy of the cancellation instrument should be sent to all communication service providers who have at any time received a copy of the warrant.
Records
4.16 Each intercepting agency should keep, so as to be made available for scrutiny by the Interception Commissioner, the following:
5.1 The Act makes provision for two sets of circumstances whereby interception assistance may be sought in connection with a mutual assistance agreement, where the agreement has been designated by the Secretary of State in an order under section 1(4)(c) of the Act.
5.2 Where the person under investigation is in the UK and the competent authority of a country or territory outside the UK believes it is necessary to intercept that person's communications, that competent authority may make an application to the Secretary of State for a warrant. The second situation is where the person being investigated is not in the UK but the competent authorities of another country nevertheless require the assistance of a communication service provider in the UK in order to intercept that person's communications. An application made on behalf of a competent authority outside the UK must be made by a person holding office under the Crown.
5.3 An application for a warrant to intercept the communications of a person in the United Kingdom must be made in the same way as any other application for a warrant as described in paragraph 4.2. The Secretary of State may not issue a warrant for the purposes of a mutual assistance agreement unless the circumstances are equivalent to those in which he would issue a warrant for the prevention or detection of serious crime.
5.4 Where the person under investigation is on the territory of another country and the competent authority of the country requesting assistance only requires the technical assistance of a communication service provider in the UK in order to effect the interception, a senior official may issue the warrant in accordance with section 7(2)(b) of the Act. Where a warrant is authorised in this way, it must contain a statement specifying the provisions under which it has been issued, namely that the warrant is issued for the purposes of a request for assistance made under an international mutual assistance agreement and that the person or premises to be intercepted is outside the UK.
Renewal, Modification and Cancellation of a Warrant
5.5 The procedures for the renewal, modification and cancellation of warrants
issued for the purposes of a request for assistance made under an international
mutual assistance agreement are similar to those described in Part 5. In
the case of a warrant issued by a senior official as described in paragraph
5.4 (where the person or premises under investigation are overseas) the official
may also renew the warrant; but such a warrant should be cancelled at any
time it is found th I t the person under investigation is in the UK.
6.1 This section applies to the interception of external communications by means of a warrant complying with section 8(4) of the Act. External communications are defined by the Act to be those which are sent or received outside the British Islands. They include those which are both sent and received outside the British Islands, whether or not they pass through the British Islands in course of their transit. They do not include communications both sent and received in the British Islands, even if they pass outside the British Islands en route. Responsibility for the authorisation of all such interception rests with the Secretary of State.
Application for a Section 8(4) Warrant
6.2 An application for a warrant is made to the Secretary of State. There is an equivalent oversight regime to that which operates for section 8(1) warrants. The Interception Commissioner may inspect the warrant application upon which the Secretary of State based his decision, and the applicant may be required to justify the content. Applications for warrants, a copy of which must be retained by the applicant, must contain the following minimum information:
____________________
7 This assessment is normally based upon information provided by the relevant communication service provider.8 This conduct may include the interception of other communications (section 5(6)(a)).
Authorisation of a Section 8(4) warrant
6.3 Before granting a warrant under section 8(4), the Secretary of State must believe that the warrant is necessary:9
____________________
9 A single warrant can be justified on more than one of the grounds listed.10 The information sought must relate to the acts or intentions of persons outside the British Islands (section 5(5))
The Secretary of State must also consider that the conduct authorised by the warrant is proportionate to what it seeks to achieve (section 5(2)(b)). In considering necessity and proportionality, the Secretary of State must take into account whether the information sought could reasonably be obtained by other means (section 5(4)).
6.4 When the Secretary of State issues a warrant of this kind, it must be accompanied by a certificate in which the Secretary of State certifies that he considers examination of intercepted material necessary for one or more of the section 5(3) purposes. The Secretary of State has a duty to ensure that there are arrangements in force for securing that only that material which has been certified as necessary for examination for a section 5(3) purpose is, in fact, read, looked at or listened to. The Interception Commissioner is under a duty to review the adequacy of those arrangements.
Urgent Authorisation of a Section 8(4) Warrant
6.5 The Act makes provision (section 7(l)(b)) for cases in which an interception warrant is required urgently, yet the Secretary of State is not available to personally sign the warrant. In these cases the Secretary of State will still personally authorise the interception but the warrant is issued by a senior official, following discussion of the case between officials and the Secretary of State. The Act restricts issue of warrants in this way to urgent cases where the Secretary of State has himself expressly authorised the issue of the warrant (section 7(2)(a)), and requires the warrant to contain a statement to that effect (section 7(4)(a)).
6.6 A warrant issued under the urgency procedure lasts for five working days unless endorsed by the Secretary of State, in which case it expires after 3 months in the same way as other section 8(4) warrants, unless renewed.
Format of a Section 8(4) Warrant
6.7 Interception warrants are addressed to the person who submitted the application who may then serve a copy upon such providers of communication services as he believes will be able to assist in implementing the interception. Communication service providers will not receive a copy of the certificate.
The warrant should include the following:
6.8 Interception warrants may be modified under the provisions of section 10. The warrant may only be modified by the Secretary of State or, in an urgent case, by a senior official with the express authorisation of the Secretary of State. In these cases a statement of that fact must be endorsed on the modifying instrument, and the modification ceases to have effect after five working days unless it is endorsed by the Secretary of State's signature. Otherwise the modification expires upon the expiry date of the warrant.
6.9 The certificate must be modified by the Secretary of State, save in an urgent case where a certificate may be modified under the hand of a senior official provided that the official holds a position in respect of which he is expressly authorised by provisions contained in the certificate to modify the certificate on the Secretary of State's behalf, or the Secretary of State has himself expressly authorised the modification and a statement of that fact is endorsed on the modifying instrument. Again the modification shall cease to have effect at the end of the fifth working day following the instrument's issue.
Renewal of a Section 8(4) Warrant
6.10 The Secretary of State may renew a warrant at any point before its expiry date. Applications for renewals are made to the Secretary of State and contain an update of the matters outlined in paragraph 4.2 above. In particular, the applicant must give an assessment of the value of interception to the operation to date and explain why he considers that interception continues to be necessary for the section 5(3) purposes.
6.11 Where the Secretary of State is satisfied that the interception continues to meet the requirements of the Act he may renew the warrant. Where the warrant was issued on serious crime grounds, the renewed warrant is valid for a further three months, where it was issued on national security or economic wellbeing grounds the renewed warrant is valid for six months.
Warrant Cancellation
6.12 The Secretary of State shall cancel an interception warrant if, at any time before its expiry date, he is satisfied that the warrant is no longer necessary on grounds falling within the necessary purposes. In practice, cancellation instruments will usually be signed by a senior official on his behalf.
6.13 The cancellation instrument will be addressed to the person to whom the warrant was issued (the intercepting agency).
Records
6.14 Each intercepting agency should keep, so to be made available for scrutiny by the Interception Commissioner, the following:
Records shall also be kept of factors by which intercepted material is selected
to be read, looked at or listened to, as set out in the safeguards required
by section 15 of the Act.
7.1 All material (including related communications data) intercepted under the authority of a warrant complying with section 8(1) or section 8(4) of the Act must be handled in accordance with safeguards which the Secretary of State has approved in conformity with the duty imposed upon him by the Act. Approved safeguards may vary for different intercepting agencies and/or different classes of interception. The safeguards are necessarily classified and their details cannot therefore be reproduced here. All safeguards must however meet the requirements of section 15 of the Act. These requirements are set out below. In addition, the safeguards in section 16 of the Act apply to warrants complying with section 8(4).
7.2 All safeguards must meet the requirements of section 15 which requires that disclosure, copying and retention of material be limited to the minimum necessary for the authorised purposes. These are defined in section 15(4) of the Act to be:
7.3 Section 16 provides for additional safeguards in relation to material gathered under section 8(4) warrants, requiring that the safeguards:
The Secretary of State must ensure that the safeguards are in force before any interception under warrants complying with section 8(4) can begin. The Interception Commissioner is under a duty to review the adequacy of the safeguards.
Dissemination of Intercepted Material
7.4 The number of persons to whom any of the material is disclosed, and the extent of disclosure, must be limited to the minimum that is necessary for the authorised purposes. This obligation applies equally to disclosure to additional persons within an agency, and to disclosure outside the agency. It is enforced by prohibiting disclosure to persons who do not hold the required security clearance, but also by the need-to-know principle: intercepted material must not be disclosed to any person unless that person's duties are such that he needs to know about the material to carry out his duties. 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.
7.5 The obligations apply not just to the original interceptor, but also to anyone to whom the matedal is subsequently disclosed. In some cases this will be achieved by requiring the latter to obtain the originator's permission before disclosing the material further. In others, explicit safeguards are applied to secondary recipients.
Copying
7.6 Intercepted material may only be copied to the extent necessary for the authorised purposes. Copies include not only direct copies of the whole of the material, but also extracts and summaries which identify themselves as the product of an interception, and any records of the identities of the persons to or by whom the intercepted material was sent. The restrictions are implemented by requiring special treatment of such copies, extracts and summaries that are made by recording their making, distribution and destruction. Passing a copy to another person counts as dissemination.
Storage
7.7 Intercepted material, 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.
Destruction
7.8 Intercepted material, and all copies, extracts and summaries of it, must be destroyed as soon as it is no longer needed for any of the authorised purposes. If such material is retained, it should be reviewed at appropriate intervals to confirm that the justification for its retention is still valid.
Personnel security
7.9 Each intercepting agency maintains a list of persons who need to have
access to intercepted material. All such persons must be appropriately vetted.
Any person no longer needing access to perform his duties should be removed
at once from the list. Where it is necessary for an officer of one agency
to disclose material to another, it is the former's responsibility to ensure
that the recipient has the necessary clearance.
8.1 Section 15(3) of the Act states the general rule that intercepted material must be destroyed as soon as its retention is no longer necessary for a purpose authorised under the Act. Section 15(4) specifies the authorised purposes for which retention is allowed.
8.2 This part of the Code applies to the handling of intercepted material for the purposes authorised by section 15(4)(d) of the Act, where retention is necessary to ensure that a person conducting a criminal prosecution has the information he needs to discharge his duty of ensuring the fairness of the prosecution.
8.3 The term "intercepted material" is used throughout to embrace copies, extracts or summaries made from the intercepted material as well as the intercepted material itself.
Exclusion of Matters from Legal Proceedings
8.4 The general rule is that neither the possibility of interception nor intercepted material itself plays any part in legal proceedings. This rule is set out in section 17 of the Act, which excludes evidence, questioning, assertion or disclosure in legal proceedings likely to reveal the existence (or the absence) of a warrant issued under this Act (or the Interception of Communications Act 1985). This rule means that the intercepted material cannot be used either by the prosecution or the defense. This preserves "equality of arms" which is a requirement under Article 6 of the European Convention on Human Rights.
8.5 Section 18 contains a number of tightly-drawn exceptions to this rule. This part of the Code deals only with the exceptions in subsections (7) to (11).
Disclosure to a Prosecutor
8.6 Section 18(7)(a) provides that intercepted material obtained by means of a warrant and which continues to be available, may, for a strictly limited purpose, be disclosed to a person conducting a criminal prosecution.
8.7 This may only be done for the purpose of enabling him to determine what is required of him by his duty to secure the fairness of the prosecution. The prosecutor does not have general access to the material to enable him to mount a cross-examination, or to test the defence case.
8.8 The exception does not mean that intercepted material should be retained against a remote possibility that it might be relevant to future proceedings. These rules only come into play if such material has, in fact, been retained for an authorised purpose. Because the authorised purpose given in section 5(3)(b) ("for the purpose of preventing or detecting serious crime") does not extend to gathering evidence for the purpose of a prosecution, it is probable that much material intercepted for this purpose will not survive to the prosecution stage, as it will have been destroyed in accordance with the section 15(3) safeguards.
8.9 But section 18(7)(a) recognises the duty on prosecutors, acknowledged by common law, to review all available material to make sure that the prosecution is not proceeding unfairly.
8.10 If intercepted material does continue to be available at the prosecution stage, the prosecutor should be informed that a warrant has been issued under section 5 and that material of possible relevance to the case had been intercepted. In order to discharge effectively his duty to ensure a fair prosecution, the prosecutor will be asked to assess the material's potential relevance to issues in the case. The relevant tests given in the Criminal Procedure and Investigations Act 1996, namely whether the material might undermine the case for the prosecution against the accused, or might assist the accused's defence, should be applied -- although that Act strictly has no bearing on the treatment of intercepted material.
8.11 The prosecutor, having had access to the material, may conclude that the material affects, or might reasonably affect, issues in the trial. In these circumstances, he will decide how the prosecution, if it proceeds, should be presented.
Disclosure to a Judge
8.12 Section 18(7)(b) recognises that there may be cases where the prosecutor, having seen intercepted material under subsection (7)(a), will need to consult the trial judge. Accordingly, it gives the judge access to intercepted material, where there are exceptional circumstances making that disclosure essential in the interests of justice.
8.13 This access will be achieved by the prosecutor inviting the judge to make an order for disclosure to him alone, under this subsection. This is an exceptional procedure; normally, the prosecutor's functions under subsection (7)(a) will not fall to be reviewed by the judge. To comply with section 17(l), any consideration given to, or exercise of, this power must be carried out without notice to the defence. The purpose of this power is to ensure that the trial is conducted on a fair and informed basis.
8.14 The judge may, having considered the intercepted material disclosed to him, direct the prosecution to make an admission of fact. The admission will be abstracted from the interception; but, in accordance with the requirements of section 17(l), it must not reveal the fact of interception. This is likely to be a very unusual step. The Act only allows it where the judge considers it essential in the interests of justice.
8.15 Nothing in these provisions allows intercepted material, or the fact
of interception, to be disclosed to the defence.
9.1 The Act provides for an Interception of Communications Commissioner whose remit is to provide independent oversight of the use of the powers contained within Part I.
9.2 This Code does not cover the exercise of the Commissioner's functions.
However, it will be the duty of any person who uses these powers to comply
with any request made by the Commissioner to provide any information as he
requires for the purpose of enabling him to discharge his functions.
10.1 The Act establishes an independent Tribunal. This Tribunal will be made up of senior members of the legal profession or judiciary and is independent of the Government. The Tribunal has full powers to investigate and decide any case within its jurisdiction.
10.2 This Code does not cover the exercise of the Tribunal's functions. However, details of the relevant complaints procedure should be readily available, for reference purposes, at public offices of public authorities designated in the Act to carry out interception. Where this is not possible, copies should be made available by post or e-mail.
Source: http://www.homeoffice.gov.UK/ripa/chis.pdf
[20 pages.]
THE USE OF
COVERT HUMAN INTELLIGENCE SOURCES
CODE OF PRACTICE
Pursuant to Section 71 of the
Regulation of Investigatory Powers Act 2000
This is a draft code published under section 71(3)(a) of the Regulation of Investigatory Powers Act 2000 and laid before both houses of Parliament.
BUILDING A SAFE, JUST AND TOLERANT SOCIETY
FOREWORD
Up until now, the use of sources has never been the subject of statutory control in this country. Their continued use is, however, essential to the maintenance of law and order and for the protection of the public.
Nothing in the provisions of the Regulation of Investigatory Powers Act 2000, nor in this code of practice, affects statutory duties (such as under the Drug Trafficking Act 1994) to disclose information about, for example, suspicious financial transactions.
The provisions of the Regulation of Investigatory Powers Act 2000 are not intended to apply in circumstances where members of the public volunteer information to the police or other authorities, as part of their normal civic duties, or contact numbers specifically set up to receive anonymous information (such as Crimestoppers, the Anti Terrorist Hotline, the Security Service Public Telephone Number or the Customs Drugs Freephone). Members of the public acting in this way would not generally come within the definition of a covert source. However, someone might become a source as a result of a relationship with a public authority begun in this way.
______________________________
Chapter 1 : GENERAL
Chapter 2 : AUTHORISATION
Chapter 3 : MANAGEMENT OF SOURCES
Chapter 4 : OVERSIGHT BY COMMISSIONER
Chapter 5 : COMPLAINTS
______________________________
1.1 This code of practice provides guidance on the use and conduct of covert human intelligence sources by public authorities listed in Schedule 1 to the Regulation of Investigatory Powers Act 2000 ("the 2000 Act").
1.2 A person is a covert human intelligence source ("a source") under section 26(8) of the 2000 Act if:
(a) he establishes or maintains a personal or other relationship with a person for the covert purpose of facilitating the doing of anything falling within paragraph (b) or (c);(b) he covertly uses such a relationship to obtain information or to provide access to any information to another person; or
(c) he covertly discloses information obtained by the use of such a relationship or as a consequence of the existence of such a relationship.
1.3 A relationship is used covertly if, and only if, it is conducted in a manner calculated to ensure that one party is unaware of its purpose. For the definition of "covert purpose" see section 26(9)(b).
1.4 Any interference with the rights protected by Article 8(1) of the European Convention on Human Rights will give rise to a violation of Article 8, unless the interference is in accordance with the law, is in pursuit of one or more of the legitimate aims referred to in Article 8(2) and is "necessary in a democratic society" to achieve the aim or aims in question. The provisions of the 2000 Act and this code cover those activities where a relationship is established, maintained or used specifically to obtain or provide covert access to information about the private or family life of another person.
1.5 There is no geographical limitation on the use or conduct of a source. Authorisations can be granted for the use or conduct of a source both inside and outside the United Kingdom.
1.6 The provisions of the 2000 Act and this code extend to Scotland, but there are certain restrictions on authorisations extending to Scotland where all the conduct authorised is likely to take place in Scotland (see section 46).
1.7 There is also nothing in the 2000 Act which prevents any material obtained from the use or conduct of a source from being adduced as evidence in court proceedings. There are well-established legal procedures which, at the court's discretion, will protect the identity of a source from disclosure in such circumstances.
1.8 The code should be readily available, for reference purposes, at public offices of public authorities designated in the 2000 Act to carry out interception. Where this is not possible, copies should be made available by post or e-mail. It should also be readily available to any members of an agency or department who are involved in operations where sources are deployed.
1.9 The 2000 Act provides that the code is admissible as evidence in criminal and civil proceedings. If any provision of the code appears relevant to a question before any court or tribunal considering any such proceedings, or to the Tribunal established under the 2000 Act, or to one of the Commissioners responsible for overseeing the powers conferred by the 2000 Act, it must be taken into account.
Interpretation
1.10 For the purpose of this code:
- "authorising officer" is the person designated under section 29 of the 2000 Act to grant an authorisations for the use or conduct of a source (see the Regulation of Investigatory Powers (Prescriptions of Offices, Ranks and Positions) Order 2000; SI 2000/2417);
- "the conduct" of a source is any conduct of a source, falling within section 26(8) of the 2000 Act, or any conduct of a source which is incidental to anything falling within section 28(8);
- "confidential material" has the same meaning as in sections 98-100 of the Police Act 1997. It consists of:
- matters subject to legal privilege;- confidential personal information; or
- confidential journalistic material.
- "matters subject to legal privilege" includes both oral and written communications:
- between a professional legal adviser and his/her client or any person representing his/her client, which are made in connection with the giving of legal advice to the client; or- between a professional legal adviser and his/her client or any person representing his/her client in connection with, or in contemplation of, legal proceedings and for the purposes of such proceedings; or
- between a professional legal adviser or his/her client or any such representative and any other person in connection with, or in contemplation of, legal proceedings and for the purposes of such proceedings.
They include items enclosed with or referred to in such communications. Legal privilege does not apply to communications made or items held with the intention of furthering a criminal purpose (whether the lawyer is acting unwittingly or culpably)1.
____________________
1 Legally privileged communications will lose their protection if there is evidence, for example, that the professional legal adviser is intending to hold or use them for 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 shall apply to the provision of professional legal advice by any agency or organisation.
- "confidential personal information" is information held in confidence concerning an individual (whether living or dead) who can be identified from it, and relating:
a) to his/her physical or mental health; orb) to spiritual counselling or other assistance given or to be given, and
which a person has acquired or created in the course of any trade, business, profession or other occupation, or for the purposes of any paid or unpaid office2. It includes both oral and written information and also communications as a result of which personal information is acquired or created. Information is held in confidence if, and relating:
a) to his/her physical or mental health; orb) to spiritual counselling or other assistance given or to be given, and
- 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 secrecy contained in existing or future legislation.
____________________
2 Confidential personal information might, for example, include consultations between a health professional or a professional counsellor and a patient or client, or information from a patient's medical records.
- "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;
- "controller" means the officer within the relevant public authority referred to in section 29(5)(b) of the 2000 Act, responsible for the general oversight of the use of the source;
- "directed surveillance" is defined in section 26(2) of the 2000 Act. See the code of practice on Covert Surveillance;
- "handler" means the person referred to in section 29(5)(a) of the 2000 Act holding an office, rank or position within the relevant investigating authority and who will have day to day responsibility for:
- dealing with the source on behalf of that authority;- directing the day to day activities of the source;
- recording the information supplied by the source; and
- monitoring the source's security and welfare;
- "the use" of a source involves inducing, asking or assisting a person
to engage in the conduct of a source or to obtain information by means of
the conduct of such a source.
2.1 Responsibility for authorising the use or conduct of a source rests with the authorising officer. Authorisations require the personal authority of the authorising officer.
2.2 Any person granting an authorisation for the use or conduct of a source must believe that the authorisation is necessary:
- in the interests of national security3;- for the purposes of preventing and detecting crime or of preventing disorder;
- in the interests of the economic well-being of the UK4;
- in the interests of public safety;
- for the purpose of protecting public health5;
- 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 other purpose prescribed in an order made by the Secretary of State6.
____________________
3 One of the functions of the Security Service is the protection of national security. This function extends throughout the United Kingdom, save that, in Northern Ireland, the lead responsibility for investigating the threat from terrorism related to the affairs of Northern Ireland lies with the Royal Ulster Constabulary. An authorising officer in another public authority should not issue an authorisation for directed surveillance where the operation falls within the responsibilities of the Security Service as set out above, except where the operation is to be carried out by a Special Branch or has been agreed with the Service.4 an authorisation for the use of surveillance on the grounds that it is in the interests of the economic well-being of the UK should only be given by one of the intelligence agencies and within the strict meaning of the term contained in the Intelligence Services Act 1994.
5 This could include investigations into infectious diseases, contaminated products or the illicit sale of pharmaceuticals.
6 This could only be for a purpose which satisfies the criteria set out in Article 8(2) of the ECHR.
2.3 He must also believe that the authorised use or conduct is proportionate to what it seeks to achieve and that satisfactory arrangements exist for the management of the source (see paragraphs 3.5 and 3.12).
2.4 A source may, in the context of an authorised operation, infiltrate existing criminal activity, or be a party to the commission of criminal offences, within the limits recognised by law. A source who acts beyond these limits will be at risk of prosecution. The need to protect the source cannot alter this principle.
2.5 Before authorising the use or conduct of a source, the authorising officer should believe that the conduct/use including the likely degree of intrusion into the privacy of those potentially affected is proportionate to what the use or conduct of the source seeks to achieve. He should also take into account the risk of intrusion into the privacy of persons other than those who are directly the subjects of the operation or investigation (collateral intrusion). Measures should be taken, wherever practicable, to avoid unnecessary intrusion into the lives of those not directly connected with the operation.
2.6 Particular care should be taken in circumstances where people would expect a high degree of privacy or where, as a consequence of the authorisation, "confidential material" is likely to be obtained (see paragraph 2.24 -2.32).
2.7 Consideration should also be given to any adverse impact on community confidence that may result from the use or conduct of a source or information obtained from that source.
2.8 Additionally, the authorising officer should make an assessment of any risk to a source in carrying out the conduct in the proposed authorisation.
Cultivation of a source
2.9 Cultivation is the process of developing a relationship with a potential source, with the intention of:
- covertly making a judgement as to his/her likely value as a source of information;- covertly determining whether and, if so, the best way in which to propose to the subject that he/she become a source.
2.10 It may be necessary to infringe the personal privacy of the potential source in the process of cultivation. In such cases, authorisation is needed for the cultivation process itself, as constituting the conduct (by the person undertaking the cultivation) of a source.
Use of directed surveillance against a potential source
2.11 Similarly, it may be necessary to deploy directed surveillance against a potential source as part of the process of assessing their suitability for recruitment, or in planning how best to make the approach to them. Authorisation for such use of directed surveillance would need to be obtained separately but could be part of a combined authorisation (see paragraph2.37).
Use and conduct of a source
2.12 Many relationships with sources are established without an initial cultivation process. However, the use and conduct of the source may still require authorisation.
2.13 Authorisation for the use and conduct of a source is required prior to any tasking. Tasking is an assignment given to the source, asking him or her to obtain information, to provide access to information or to otherwise act, incidentally, for the benefit of the relevant public authority. It may involve the source infiltrating existing criminal activity in order to obtain that information.
Authorisation procedures
2.14 Authorisations must be given in writing by the authorising officer. However, in urgent cases, they may be given orally by the authorising officer save where he is only entitled to act in urgent cases. In such an urgent oral case, a statement that the authorising officer has expressly authorised the action should be recorded in writing as soon as is reasonably practicable. This should be done by the person to whom the authorising officer spoke but should later be endorsed by the authorising officer.
2.15 An authorising officer may in certain circumstances act as the controller or handler of a source. Ideally, though, authorising officers should not be responsible for authorising their own activities, e.g. those in which they, themselves, are to act as the source or in tasking the source. However, it is recognised that this is not always possible, especially in the cases of small organisations.
2.16 The authorising officers within the Police, National Crime Squad, National Criminal Intelligence Service and HM Customs and Excise authorisations may only grant authorisations on application by a member of their own force, Squad, Service or organisation.
2.17 Authorising officers who are entitled to act in urgent cases in the absence of an authorising officer, are those of, at least, inspector rank or equivalent7 (see the Regulation of Investigatory Powers (Prescriptions of Offices, Ranks and Positions) Order 2000; SI 2000/2417). In certain circumstances the Secretary of State will be the authorising officer (see section 30(2) of the 2000 Act).
____________________
7 This is the minimum level of authority. In some circumstances, a public authority may decide to use a higher level of authority.
Officers working under cover
2.18 A member of a public authority may, by concealing his or her identity or otherwise acting covertly:
- infiltrate an existing criminal or terrorist conspiracy;- arrest a suspected criminal or criminals;
- counter a threat to national security;
- counter a significant threat to public order
- counter a significant threat to public safety;
- counter a threat to the economic well-being of the UK.
2.19 Members of foreign law enforcement or other agencies or sources of those agencies may be authorised to be deployed in the UK in support of domestic and international investigations.
2.20 In some cases, officers of a public authority undertake work in which they represent themselves (in their own identity or by use of an alias) to be an official of a different public authority. This, in itself, may not necessarily require authorisation.
2.21 However, in some cases where officers of a public authority undertake work in which they represent themselves to be acting on behalf of another person an authorisation may be required where the officer is engaging in the conduct of a source. An authorisation may be required for the officer to engage in the conduct of a source in relation to each cover capacity used.
2.22 Authorising officers who can give authority for officers to work under cover, as described in paragraphs 2.16 to 2.19, are the same as those giving authority for the conduct/use of a source (i.e. superintendent or equivalent level).
SPECIAL RULES
2.23 There are certain cases, as set out in paragraphs 2.24-2.32 where a higher level of authority is recommended. These are:
- because of the type of source deployed; or- because the use or conduct of a source is particularly sensitive.
Confidential material
2.24 The 2000 Act does not provide any special protection for 'confidential material'8. Nevertheless, such material is particularly sensitive, and is subject to additional safeguards under this code. In cases where the likely consequence of the conduct of a source would be for any person to acquire knowledge of confidential material, the deployment of the source should be subject to special authorisation. In these cases, the authorising officer should be a chief constable or equivalent. In urgent cases the authorising officer could be an assistant chief constable or equivalent.
____________________
8 See interpretation section at 1.11.
2.25 In general, any application for an authorisation which is likely to result in the acquisition of confidential material should include an assessment of how likely it is that confidential material will be acquired.
2.26 Special care should be taken where the target of the investigation is likely to be involved in handling confidential material. In such circumstances it is possible that a substantial proportion of the material acquired could be confidential material. Such applications should only be considered in exceptional and compelling circumstances with full regard to the proportionality issues this raises.
2.27 The following general principles apply to confidential material acquired under Part II authorisations:
- Those handling material from such operations should be alert to anything which may fall within the definition of confidential material. Where there is doubt as to whether the material is confidential, advice should be sought from a legal adviser before further dissemination takes place;- Confidential material should not be retained or copied unless it is necessary for a specified purpose;
- Confidential material should be disseminated only where an appropriate officer (having sought advice from a legal adviser) is satisfied that it is necessary for a specific purpose;
- The retention or dissemination of such information should be accompanied by a clear warning of its confidential nature. It should be safeguarded by taking reasonable steps to ensure that there is no possibility of it becoming available, or its content being known, to any person whose possession of it might prejudice any criminal or civil proceedings related to the information;
- Confidential material should be destroyed as soon as it is no longer necessary to retain it for a specified purpose.
Vulnerable individuals
2.28 Vulnerable individuals, such as the mentally impaired, should only be authorised to act as a source in the most exceptional circumstances. In these cases, authorisation by an assistant chief constable or equivalent would be appropriate.
Juvenile sources
2.29 Special safeguards also apply to the authorisation for the use or conduct of juvenile sources; that is sources under the age of 18 years. On no occasion should the use or conduct of a source under 16 years of age be authorised to give information against his or her parents. In other cases, authorisations should not be granted unless:
- a risk assessment has been undertaken as part of the application to deploy a juvenile source, covering the physical dangers and the psychological aspects of his or her deployment;- the risk assessment has been considered by the authorising officer and he has satisfied himself that any risks identified in it have been properly explained; and
- the authorising officer has given particular consideration as to whether the juvenile is to be tasked to get information from a relative, guardian or any other person who has for the time being assumed responsibility for his welfare.
2.30 In addition juvenile authorisations should not be granted unless the authorising officer believes that arrangements exist which will ensure that there will at all times be a person who has responsibility for ensuring that an appropriate adult will be present between any meetings between the authority and a source under 16 years of age.
2.31 Authorisations for juvenile sources should be granted by those of assistant chief constable level or equivalent.
Recording of telephone conversations
2.32 The interception of communications sent by post or by means of public telecommunications systems or private telecommunications attached to the public network may be authorised only by the Secretary of State, in accordance with the terms of Part I of the 2000 Act. Nothing in this code should be taken as granting dispensation from the requirements of that part of the 2000 Act.
2.33 However, the question will frequently arise whether a recording may be made by one party to a conversation, without the knowledge or consent of the other party. For example, a person may consent to the recording of telephone conversation sent by or to him. In such circumstances authorisation should be given for directed surveillance (see the code of practice on surveillance) by a police superintendent or equivalent (see the Regulation of Investigatory Powers (Prescriptions of Offices, Ranks and Positions) Order 2000;SI 2000/2417).
Use of covert human intelligence source with technical equipment
2.34 A covert human intelligence source wearing or carrying a surveillance device and invited into residential premises or a private vehicle does not require special authorisation to record activity taking place inside those premises or vehicle. Authorisation for the use of that covert source may be obtained in the usual way. The source should not, however, use an invitation into residential premises or a private vehicle as a means of installing equipment without the proper authorisation being in place. If the equipment is to be used, other than in the presence of the covert source, an intrusive surveillance authorisation should be obtained.
Information to be provided in applications for authorisation
2.35 An application for authorisation for the use or conduct of a source should record:
- details of the purpose for which the source will be tasked or deployed (e.g. In relation to an organised serious crime, espionage, a series of racially motivated crimes etc);- the grounds on which authorisation is sought (e.g. for the detection of crime or the protection of public health);
- where a specific investigation or operation is involved, details of that investigation or operation;
- details of what the source will be tasked to do;
- details of the level of authority required (or recommended, where that is different).
- details of potential collateral intrusion;
- details of any confidential material that might be obtained as a consequence of the authorisation.
Combined authorisations
2.36 A single authorisation may combine two or more different authorisations under Part II of the 2000 Act. For example, a single authorisation may combine authorisations for intrusive surveillance and the conduct of a source. However, the provisions applicable in the case of each of the authorisations must be considered separately. Thus, a police superintendent would authorise the conduct and use of a source but an authorisation for intrusive surveillance would need the separate authority of a chief constable and the approval of a Surveillance Commissioner (see paragraphs 4.1-4.3).
Renewals
2.37 If at any time before an 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, it may be renewed, in writing, for a further period. A renewal takes effect at the time at which, or day on which the authorisation would have ceased to have effect but for the renewal. An application for renewal should not be made until shortly before the authorisation period is drawing to an end. An authorisation can be renewed by any person who would be entitled to grant a new authorisation. Authorisations may be renewed more than once, provided they continue to meet the criteria for authorisation.
Reviews
2.38 Before an authorising officer renews an authorisation, he must be satisfied that a review has been carried out of the use made of the source during the period authorised, the tasks given to the source and the information obtained from the use or conduct of the source.
2.39 If satisfied that the criteria necessary for the initial authorisation continue to be met, he may renew it in writing for a further period.
Duration of authorisations
2.40 Except in relation to juvenile sources (see SI), a written authorisation will, unless renewed, cease to have effect at the end of a period of twelve months beginning with the day on which it took effect.
2.41 Oral authorisations or authorisations granted/renewed 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 was granted/renewed.
Cancellations
2.42 The authorising officer who granted or renewed the authorisation must
cancel it if he is satisfied that the use or conduct of the source no longer
satisfies the criteria for authorisation or that the arrangements for the
source's case no longer exist (see paragraph 3.5). The duty to cancel
may fall on other persons, in accordance with section 45. Where necessary,
the safety and welfare of the source should continue to be taken into account
after the authorisation has been cancelled.
Tasking
3.1 Tasking is the assignment given to the source by the handier or controller, asking him to obtain information, or to otherwise take an action leading to the obtaining of information.
3.2 In some instances, the tasking given to a person will not necessarily involve interference with a person's ECHR Article 8 rights. For example a source may be tasked with finding out purely factual information about the layout of commercial premises. Alternatively, a trading standards officer or health inspector may be involved in the test purchase of items which have been labelled misleadingly or are unfit for consumption. In such cases, it is for the relevant public authority to determine where, and in what circumstances, such activity may interfere with Article 8 and require authorisation.
3.3 It is not the intention that authorisations be drawn so narrowly that a separate authorisation is required each time the handler tasks the source. Rather, an authorisation might cover, in broad terms, the nature of the source's task. If this changes, then a fresh authorisation may need to be sought.
3.4 It is difficult to predict exactly what might occur each time a handler meets a source, or the source meets the target of an investigation. There may be occasions when unforeseen action or undertakings occur. When this happens, it must be recorded as soon as practicable after the event and, if the existing authorisation is insufficient, a new authorisation should be obtained before any further such action is carried out.
Management responsibility
3.5 All authorisations for the use or conduct of a source should be in writing (except in certain urgent cases - see paragraph 2.14). In addition, public authorities should ensure that arrangements are in place for the proper oversight and management of sources. Every source should have a designated handler* and a designated controller*.
____________________
* As defined in 1.10. The internal terminology may be different in certain organisations, especially in relation to undercover officers.
3.6 The day-to-day contact between the public authority and the source is to be conducted by the handler, who will usually be an officer below the rank of the authorising officer. Some tasking may be given in direct response to information provided by the source on the occasion of his/her meeting with the handier and, as such, will come within the control of the handler.
3.7 In cases where the authorisation is for the use or conduct of a source whose activities benefit more than a single public authority, responsibilities for the management and oversight of that source may be taken up by one authority or can be split between the authorities.
Security and welfare
3.8 Any public authority deploying a source should take into account the safety and welfare of that source, when carrying out actions in relation to an authorisation or tasking, and to foreseeable consequences to others of that tasking. Before authorising the use or conduct of a source, the authorising officer should ensure that a risk assessment is carried out to determine the risk to the source of any tasking and the likely consequences should the role of the source become known to the target or those involved in the target activity. The ongoing security and welfare of the source, after the cancellation of the authorisation, should also be considered at the outset.
3.9 The handier is responsible for bringing to the controller's attention any concerns about the personal circumstances of the source, insofar as they might affect:
- the validity of the risk assessment- the proper conduct of the source operation, and
- the safety and welfare of the source.
3.10 Where deemed appropriate, the controller must ensure that the information is considered by the authorising officer, and a decision taken on whether or not to allow the authorisation to continue.
Record keeping
3.11 The records maintained by public authorities should be maintained in such a way as to preserve the confidentiality of the source and the information provided by that source. There should, at all times, be a designated person within the relevant public authority who will have responsibility for maintaining a record of the use made of the source.
3.12 The 2000 Act provides that an authorising officer must not grant an authorisation for the conduct or use of a source unless he believes that there are arrangements in place for ensuring that there is at all times a person with the responsibility for maintaining a record of the use made of the source.
3.13 The records should contain particulars of:
a. the identity of the source;b. the identity or identities used by the source, where known;
c. the means used within the authority of referring to the source;
d. any significant information connected with the security and welfare of the source;
e. any confirmation made by a person granting or renewing an authorisation for the conduct or use of a source that the information in
d. has been considered and that any identified risks to the security and welfare of the source have been properly explained to and understood by the source;
f. the date when and circumstances in which, the source was recruited;
g. the relevant investigating authority in relation to the source (other than the authority that is maintaining the records);
h. the identities of the persons in the relevant investigating authority who, in relation to the source, are discharging or have discharged the responsibilities mentioned in section 29(5)(a) to (c) of the 2000 Act and paragraph 2.28 of this code where relevant;
i. the period for which those responsibilities have been discharged by those persons;
j. the tasks that are given to the source and the demands made of him in relation to his activities as a source;
k. all contacts or communications between the source and a person acting on behalf of the relevant investigating authority;
l. the information obtained by the relevant investigating authority by the conduct or use of the source;
m. the information so obtained which is disseminated by the relevant investigating authority;
n. in the case of a source who is not an undercover operative, every payment, benefit or reward or every offer of a payment, benefit or reward that is made or provided by or on behalf of the relevant investigating authority in respect of the source's activities for the benefit of any such authority.
3.14 In addition, it is recommended that records/copies of the following, as appropriate, should be kept by the relevant authority:
a. the authorisation granted and, where relevant, renewed;b. any authorisation which was granted or renewed orally (in an urgent case) and the reason why the case was considered urgent;
c. any risk assessment made in relation to the source;
d. the circumstances in which tasks were given to the source;
e. the value of the source to the investigating authority;
f. the reason why the person renewing an authorisation considered it necessary to do so;
g. the results of any reviews of the authorisation;
h. the reasons, if any, for not renewing an authorisation;
i. the reasons for cancelling an authorisation.
3.15 In the event that a source is specifically tasked in a way which is intended or likely to interfere with the ECHR Article 8 rights of any person or persons not previously considered as coming within the remit of the original authorisation, or to a degree significantly greater than previously identified, the handler or controller must refer the proposed tasking to the authorising officer, who should consider whether a separate authorisation is required. This should be done in advance of any tasking and the details of such referrals must be recorded.
Retention and destruction of the product and records of the use of a source
3.16 Authorising officers are reminded of the guidance in paragraph 2.25 relating to the retention and destruction of confidential material. To the extent that such material has not been destroyed, the following guidance may be relevant.
3.17 Subject to 3.18, all records should be retained for a minimum of one year to ensure that they are available for inspection by a Commissioner. Thereafter material must not be destroyed, save with the authority of the authorising officer. It is essential that this responsibility should be managed at a senior level in the relevant organisation and that officers are clearly identified and are held accountable for carrying out this function.
3.18 Records must be capable of being retrieved at a central point within each public authority.
3.19 Where there is reasonable belief that material relating to any activity by a source could be relevant to pending or future criminal or civil proceedings, it should be retained in accordance with established disclosure requirements. In the cases of the law enforcement agencies (not including the Service Police), particular attention is drawn to the requirements of the code of practice issued under the Criminal Procedure and Investigations Act 1996 (CPIA). This requires that material should be retained if it forms part of the unused prosecution material gained in the course of a criminal investigation, or which may be relevant to an investigation.
3.20 Authorising officers must also ensure compliance with data protection
requirements and. where appropriate, with any relevant code of practice on
data protection.
4.1 The 2000 Act provides for a Chief Surveillance Commissioner, Surveillance Commissioners and Assistant Surveillance whose remit is to provide independent oversight of the use of the powers contained within Part II by the Police (including the Service Police and the Ministry of Defence Police), NCIS, the National Crime Squad, British Transport Police, HM Customs & Excise, the Ministry of Defence and HM Armed Forces in Northern Ireland and other public authorities listed in schedule 1.
4.2 The Intelligence Services Commissioner remit is to provide independent oversight of the use of the powers contained within Part II by the Security Service, Secret Intelligence Service, GCHQ, the Ministry of Defence and HM Armed Forces (excluding the Service Police, Ministry of Defence Police, the Ministry of Defence and HM Armed Forces in Northern Ireland).
4.3 This code does not cover the exercise of the Commissioner's functions.
However, it will be the duty of any person who uses these powers to comply
with any request made by the Commissioner to provide any information as he
requires for the purpose of enabling him to discharge his functions.
5.1 The 2000 Act establishes an independent Tribunal. This Tribunal will be made up of senior members of the legal profession or judiciary and is independent of the Government. The Tribunal has full powers to investigate and decide any case within its jurisdiction.
5.2 This code does not cover the exercise of the Tribunal's functions. However, details of the relevant complaints procedure should be readily available, for reference purposes, at public offices of public authorities designated in the 2000 Act to carry out surveillance. Where this is not possible, copies should be made available by post or e-mail.
Transcription and HTML by Cryptome.