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Publication - Guidance

Covert human intelligence sources: code of practice

Published: 20 Dec 2017
Directorate:
Safer Communities Directorate
Part of:
Law and order
ISBN:
9781788515306

Code of practice in relation to covert human intelligence sources issued under section 24 of the Regulation of Investigatory Powers (Scotland) Act 2000.

44 page PDF

387.2 kB

44 page PDF

387.2 kB

Contents
Covert human intelligence sources: code of practice
3. General rules on authorisations

44 page PDF

387.2 kB

3. General rules on authorisations

Authorising officer

3.1. Responsibility for giving the authorisation will depend on which public authority is responsible for the CHIS. For the purposes of this code, the person in a public authority responsible for granting an authorisation will be referred to as the "authorising officer". The relevant public authorities and authorising officers are listed in the 2010 Order, as amended by the 2014 Order.

Necessity and proportionality

3.2. RIP(S)A stipulates that the authorising officer must believe that an authorisation for the use or conduct of a CHIS is necessary in the circumstances of the particular case for one or more of the statutory grounds listed in section 7(3) of RIP(S)A.

3.3. If the use or conduct of the CHIS is deemed necessary, on one of more of the statutory grounds, the person granting the authorisation must also believe that it is proportionate to what is sought to be achieved by carrying it out. The degree of intrusiveness of a CHIS authorisation will vary from case to case and therefore proportionality must be assessed on an individual basis. This involves balancing the seriousness of the intrusion into the private or family life of the subject of the operation (or any other person who may be affected) against the need for the activity in investigative and operational terms.

3.4. The authorisation will not be proportionate if it is excessive in the overall circumstances of the case. Each action authorised should bring an expected benefit to the investigation or operation and should not be disproportionate or arbitrary. The fact that a suspected offence may be serious will not alone render the use or conduct of a CHIS proportionate. Similarly, an offence may be so minor that any deployment of a CHIS would be disproportionate. No activity should be considered proportionate if the information which is sought could reasonably be obtained by other less intrusive means.

3.5. The following elements of proportionality should therefore be considered:

  • balancing the size and scope of the proposed activity against the gravity and extent of the perceived crime or harm;
  • explaining how and why the methods to be adopted will cause the least possible intrusion on the subject and others;
  • whether there are any implications of the authorised conduct for the privacy of others, and an explanation of why (if relevant) it is nevertheless proportionate to proceed with the operation;
  • evidencing, as far as reasonably practicable, what other methods had been considered and why they were not implemented or have been implemented unsuccessfully; and
  • considering whether the activity is an appropriate use of the legislation and a reasonable way, having considered all reasonable alternatives, of obtaining the necessary result.

3.6. The fact that an authorisation relates to the activities in the British Islands of a trade union is not, of itself, sufficient to establish that the authorisation is necessary on the grounds on which authorisations may be granted.

Extent of authorisations

3.7. An authorisation under RIP(S)A for the use or conduct of a CHIS will provide lawful authority for any such activity that:

  • involves the use or conduct of a CHIS as is specified or described in the authorisation;
  • is carried out by or in relation to the person to whose actions as a CHIS the authorisation relates; and
  • is carried out for the purposes of, or in connection with, the investigation or operation so described [10] .

3.8. In the above context, it is important that the CHIS is fully aware of the extent and limits of any conduct authorised and that those involved in the use of a CHIS are fully aware of the extent and limits of the authorisation in question.

Collateral intrusion

3.9. Before authorising the use or conduct of a source, the authorising officer should take into account the risk of interference with the private or family life of persons who are not the intended subjects of the CHIS activity (collateral intrusion). Particular consideration should be given in cases where religious, medical, journalistic or legally privileged material may be involved, or where the communications of a member of a relevant legislature may be involved (see Chapter 8).

3.10. Measures should be taken, wherever practicable, to avoid or minimise interference with the private or family life of those who are not the intended subjects of the CHIS activity. Where such collateral intrusion is unavoidable, the activities may still be authorised providing this collateral intrusion is considered proportionate to the aims of the intended intrusion. Any collateral intrusion should be kept to the minimum necessary to achieve the objective of the operation.

3.11. All applications should therefore include an assessment of the risk of any collateral intrusion, and details of any measures taken to limit this, to enable the authorising officer fully to consider the proportionality of the proposed use or conduct of a CHIS.

3.12. Where CHIS activity is deliberately proposed against individuals who are not suspected of direct or culpable involvement in the matter being investigated, interference with the private or family life of such individuals should not be considered as collateral intrusion but rather as intended intrusion. Any such interference should be carefully considered against the necessity and proportionality criteria as described above.

Example 1: A relevant source is deployed to obtain information about the activities of a suspected criminal gang under a CHIS authorisation. It is assessed that the relevant source will, in the course of this deployment, obtain private information about some individuals who are not involved in criminal activities and are of no interest to the investigation. The authorising officer should consider the proportionality of this collateral intrusion, and whether sufficient measures are to be taken to limit it, when granting the authorisation.

Example 2: The police seek to establish the whereabouts of Mr W in the interests of preventing and detecting crime. In order to do so, a relevant source is deployed to seek to obtain this information from Mr P, an associate of Mr W who is not of direct criminal interest. An application for a CHIS authorisation is made to authorise the deployment. The authorising officer will need to consider the necessity and proportionality of the operation against Mr P and Mr W, who will be the direct subjects of the intrusion. The authorising officer will also need to consider the proportionality of any collateral intrusion that will arise if there is any additional interference with the private and family life of other individuals of no interest to the investigation.

Reviewing and renewing authorisations

3.13. Where possible, the authorising officer who grants an authorisation should be responsible for considering subsequent renewals of that authorisation and any related security and welfare issues, except where approval for a long term authorisation is required for a relevant source as set out in the 2014 Order.

3.14. The authorising officer will stipulate the frequency of formal reviews and the controller (see paragraph 6.9) should maintain an audit of case work sufficient to ensure that the use or conduct of the CHIS remains within the parameters of the extant authorisation. This will not prevent additional reviews being conducted by the authorising officer in response to changing circumstances such as described below.

3.15. Where the nature or extent of intrusion into the private or family life of any person becomes greater than that anticipated in the original authorisation, the authorising officer should immediately review the authorisation and reconsider the proportionality of the operation. This should be highlighted at the next renewal, if applicable.

3.16. Where a CHIS authorisation provides for interference with the private or family life of initially unidentified individuals whose identity is later established, a new authorisation is not required provided that the scope of the original authorisation envisaged interference with the private and family life of such individuals.

Example: An authorisation is obtained by the police to authorise a CHIS to use her relationship with "Mr X and his close associates" for the covert purpose of providing information relating to their suspected involvement in a crime. Mr X introduces the CHIS to Mr A, a close associate of Mr X. It is assessed that obtaining more information on Mr A will assist the investigation. The CHIS may use her relationship with Mr A to obtain such information but the review of the authorisation should specify any interference with the private or family life of "Mr X and his associates, including Mr A" and that such an interference is in accordance with the original authorisation.

3.17. Any proposed changes to the nature of the CHIS operation i.e. the activities involved should immediately be brought to the attention of the authorising officer. The authorising officer should consider whether the proposed changes are within the scope of the existing authorisation and whether they are proportionate (bearing in mind any extra interference with private or family life or collateral intrusion), before approving or rejecting them. Any such changes should be highlighted at the next renewal, if applicable.

Local considerations and community impact assessments

3.18. Any person granting or applying for an authorisation will also need to be aware of any particular sensitivities in the local community where the CHIS is being used and of similar activities being undertaken by other public authorities which could have an impact on the deployment of the CHIS. Consideration should also be given to any adverse impact on community confidence or safety that may result from the use or conduct of a CHIS or use of information obtained from that CHIS.

3.19. It is therefore recommended that where an authorising officer from a public authority considers that conflicts might arise they should, where possible, consult a senior officer within the police force area in which the CHIS is deployed. All public authorities, where possible, should consider consulting with other relevant public authorities to gauge community impact.

Combined authorisations

3.20. A single authorisation may combine two or more different authorisations under RIP(S)A. [11] For example, a single authorisation may combine authorisations for intrusive surveillance and the conduct of a CHIS. In such cases the provisions applicable to each of the authorisations must be considered separately by the appropriate authorising officer. Thus, a police superintendent or above can authorise the conduct of a CHIS (so long as the CHIS isn't a relevant source), but an authorisation for intrusive surveillance needs the separate authorisation of the Chief Constable or a designated senior officer (and the prior approval of a Judicial Commissioner, except in cases of urgency).

3.21. The above considerations do not preclude public authorities from obtaining separate authorisations.

Operations involving multiple CHIS

3.22. A single authorisation under RIP(S)A may be used to authorise more than one CHIS. However, this is only likely to be appropriate for operations involving the conduct of several relevant sources acting as CHIS in situations where the activities to be authorised, the subjects of the operation, the interference with private and family life, the likely collateral intrusion and the environmental or operational risk assessments are the same for each relevant source. If an authorisation includes more than one relevant source, each relevant source must be clearly identifiable within the documentation. In these circumstances adequate records must be kept of the length of deployment of each relevant source to ensure the enhanced authorisation process set out in the 2014 Order can be adhered to.

Covert surveillance of a CHIS

3.23. It may be necessary to deploy covert surveillance against a potential or authorised CHIS, other than those acting in the capacity of a relevant source, as part of the process of assessing their suitability for recruitment, deployment or in planning how best to make the approach to them. It is possible that covert surveillance in such circumstances may not be capable of authorisation as it may not be necessary on one of the statutory grounds on which directed surveillance authorisations can be granted. This will depend on the facts of the case. Where the use of surveillance against a CHIS cannot be authorised under RIP(S)A, it will still require to be justifiable under Article 8(2) of the ECHR.

Use of equipment by a CHIS

3.24. A CHIS wearing or carrying a surveillance device does not need a separate intrusive or directed surveillance authorisation, provided the device will only be used in the presence of the CHIS. However, if a surveillance device is to be used other than in the presence of the CHIS, an intrusive or directed surveillance authorisation should be obtained where appropriate, together with an authorisation for interference with property, if applicable. See the Covert Surveillance and Property Interference Code of Practice.

3.25. A CHIS, whether or not wearing or carrying a surveillance device, in residential premises or a private vehicle, does not require additional authorisation to record any activity taking place inside those premises or that vehicle which takes place in his presence. This also applies to the recording of telephone conversations or other forms of communication, other than by interception, which takes place in the source's presence. Authorisation for the use or conduct of that source may be obtained in the usual way.

3.26. If a CHIS is acting on behalf of one of the bodies to which the equipment interference provisions of the IPA apply, and is required as part of his tasking to interfere with equipment in order to obtain communications, equipment data or other information, that interference should be authorised separately by a warrant under that Act.

Oversight of use of CHIS by local authorities

3.27. Elected members of a local authority should review the authority's use of RIP(S)A and set the policy at least once a year. They should also consider internal reports on use of RIP(S)A on at least a quarterly basis to ensure that it is being used consistently with the local authority's policy and that the policy remains fit for purpose. They should not, however, be involved in making decisions on specific authorisations. In regard to the matters mentioned in this paragraph, local authorities may wish to consider ensuring that their elected members have undergone sufficient training in order to fulfil these requirements.


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