COVERT SURVEILLANCE
CHAPTER 6: AUTHORISATION PROCEDURES FOR INTRUSIVE SURVEILLANCE
6.1 Intrusive surveillance is defined in section 1(3) of the RIP(S) Act as covert surveillance that:
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.
6.2 Covert surveillance is defined in section 1(8)(a) of the RIP(S) Act as any 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.
6.3 Where surveillance is carried out in relation to anything taking place on any residential premises or in any private 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.
6.4 Residential premises are defined in section 31(1) of the RIP(S) Act. The definition includes hotel rooms, bedrooms in barracks, and police and prison cells but not any common area to which a person is allowed access in connection with his occupation of such accommodation e.g. a hotel lounge.
6.5 A private vehicle is defined in section 31(1) of the RIP(S) Act as any vehicle which is used primarily for the private purposes 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.
6.6 In many cases, a surveillance operation may involve both intrusive surveillance and entry on or interference with property or with wireless telegraphy. In such cases, both activities need authorisation. This can be done as a combined authorisation (see paragraph 3.11).
6.7 An authorisation for intrusive surveillance may be issued by a Chief Constable. All authorisations require the personal authority of the Chief Constable and, under section 10(2) of the RIP(S) Act a Chief Constable may not authorise intrusive surveillance unless that Chief Constable is satisfied that:
a. the authorisation is necessary for the purpose of preventing or detecting serious crime; and
b. the surveillance is proportionate to what is sought to be achieved by carrying it out.
6.8 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 less intrusive means.
Authorisation procedures
6.9 The Chief Constable should generally give authorisations in writing. However, in urgent cases, they may be given orally. In an urgent oral case, a statement that the Chief Constable has expressly authorised the conduct should be recorded in writing by the applicant as soon as is reasonably practicable.
6.10 If the Chief Constable is absent then as provided for in section 5(4) of the Police (Scotland) Act 1967, an authorisation can be given in writing or, in urgent cases, orally by the designated deputy.
6.11 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 an Assistant Chief Constable entitled to act under section 12(4) of the RIP(S) Act.
6.12 A case is not normally to be regarded as urgent unless the time that would elapse before the Chief Constable was available to grant the authorisation would, in the judgement of the person giving the authorisation, be likely to endanger life or jeopardise the investigation or operation for which the authorisation was being given. An authorisation is not to be regarded as urgent where the need for an authorisation has been neglected or the urgency is of the authorising officer's own making.
6.13 The consideration of an authorisation by the Chief Constable is only to be regarded as not reasonably practicable (within the meaning of section 12(2) of the RIP(S) Act) if the Chief Constable is on annual leave, is absent from the office and home, or is for some reason not able within a reasonable time to obtain access to a secure telephone or fax machine. Pressure of work is not normally to be regarded as rendering it impracticable for a Chief Constable to consider an application. Where a designated deputy gives an authorisation this should be made clear and the reason for the absence of the Chief Constable given.
6.14 Applications to the Chief Constable for authorisation must be made in writing by a member of that officer's own force or by a constable seconded to the Scottish Drug Enforcement Agency (or a successor organisation as specified in section 9 of the RIP(S) Act). Where the surveillance is carried out in relation to any residential premises, the authorisation cannot be granted unless the residential premises are within the area of operation of that police force.
Information to be provided in applications for authorisation
6.15 Applications should be in writing and describe the conduct to be authorised and the purpose of the investigation or operation. The application should specify:
- the reasons why the authorisation is necessary in the particular case and on the grounds (e.g. for the purposes of preventing or detecting serious crime) listed in section 10(2) of the RIP(S) Act;
- the reasons why the surveillance is considered proportionate to what it seeks to achieve;
- the nature of the surveillance;
- the residential premises or private vehicle in relation to which the surveillance will take place;
- the identities, where known, of those to be the subject of the surveillance;
- an explanation of the information which it is desired to obtain as a result of the surveillance;
- details of any potential collateral intrusion and why the intrusion is justified;
- details of any confidential material that is likely to be obtained as a result of the surveillance; and
- a subsequent record should be made of whether authority was given or refused, by whom and the time and date.
6.16 Additionally, in urgent cases, the authorisation should record (as the case may be):
- the reasons why the Chief Constable or designated deputy considered the case so urgent that an oral instead of a written authorisation was given; and/or
- the reasons why it was not reasonably practicable for the application to be considered by the Chief Constable or the designated deputy.
6.17 Where the application is oral, the detail referred to above should be recorded in writing as soon as reasonably practicable.
Approval of Surveillance Commissioners
6.18 Except in urgent cases, an authorisation granted for intrusive surveillance will not take effect until it has been approved by a Surveillance Commissioner and written notice of the Commissioner's decision has been given to the person who granted the authorisation (see section 14(1) of the RIP(S) Act). This means that the approval will not take effect until the notice has been received in the office of the person who granted the authorisation within the relevant force.
6.19 When the authorisation is urgent, it will take effect from the time it is granted provided notice is given to the Surveillance Commissioner in accordance with section 13(4)(b) (see section 14(2) of the RIP(S) Act).
6.20 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 notify the Surveillance Commissioner that the case is now urgent (pointing out that it has become urgent since the notification). In these cases, the authorisation will take effect immediately.
Notifications to Surveillance Commissioners
6.21 Where a person grants, renews or cancels an authorisation, that person must, as soon as is reasonably practicable, give notice of it in writing to a Surveillance Commissioner, in accordance with whatever arrangements have been made by the Chief Surveillance Commissioner.
6.22 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.
6.23 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.) (Scotland) Order 2000; SSI No. 340 .
Duration of authorisations
6.24 A written authorisation granted by a Chief Constable 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.
6.25 Oral authorisations given in urgent cases by Chief Constables or their designated deputies will cease to have effect (unless renewed) at the end of the period of seventy-two hours beginning with the time when they took effect.
Renewals
6.26 If at any time before an authorisation expires the Chief Constable 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.
6.27 As with the initial authorisation, the Chief Constable must (unless it is a case to which the urgency procedure applies) seek the approval of a Surveillance Commissioner. This means that the renewal will not take effect until the notice of it has been received in the office of the person who granted the authorisation (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 the day on which the authorisation would have otherwise ceased to have effect). See sections 13 and 14 of the RIP(S) Act and The Regulation of Investigatory Powers (Notification of Authorisations etc.) (Scotland) Order 2000 SSI No: 340).
6.28 All applications for a renewal of an authorisation should record:
- whether this is the first renewal or every occasion on which the authorisation has been renewed previously;
- any significant changes to the information listed in paragraph 6.15 ;
- the reasons why it is necessary to continue with the intrusive surveillance;
- the content and value to the investigation or operation of the product so far obtained by the surveillance; and
- the results of regular reviews of the investigation or operation.
Reviews
6.29 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 central record of authorisation record (see paragraphs 3.14-3.15 ). Particular attention is drawn to the need to review authorisations frequently where the intrusive surveillance provides access to confidential material or involves collateral intrusion.
6.30 The senior authorising officer should determine how often a review should take place. This should be as frequently as is considered necessary and practicable.
Cancellations
6.31 The senior authorising officer who granted or last renewed the authorisation must cancel it if that officer is satisfied that the surveillance no longer meets the criteria upon which it was authorised. Where the senior authorising officer is no longer available, this duty will fall on the person who has taken over the role of senior authorising officer (see the Regulation of Investigatory Powers (Cancellation of Authorisations) (Scotland) Regulations 2002; SSI No. 207).
6.32 Surveillance Commissioners must be notified where authorisations are cancelled (see The Regulation of Investigatory Powers (Notification of Authorisations etc.) (Scotland) Order 2000; SSI No. 340) .
Ceasing of surveillance activity
6.33 As soon as the decision is taken that the intrusive surveillance should be discontinued, instructions must be given to those involved to stop all surveillance of the subject(s). The date and time when such an instruction was given should be recorded in the central record of authorisation (see paragraphs 3.14-3.15) and the notification of cancellation where relevant.
6.34 In cases where an authorisation is quashed or cancelled by a Surveillance Commissioner, the senior authorising officer must immediately instruct those carrying out the surveillance to stop monitoring, observing, listening or recording the activities of the subject of the authorisation. The date and time when such an instruction was given should be recorded on the central record or authorisation (see paragraphs 3.14-3.15).