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Publication - Guidance

Covert human intelligence sources: code of practice

Published: 20 Dec 2017
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

387.2kB

44 page PDF

387.2kB

Contents
Covert human intelligence sources: code of practice
5. Authorisation procedures for covert human intelligence sources

44 page PDF

387.2kB

5. Authorisation procedures for covert human intelligence sources

Authorisation criteria

5.1. Under section 7 of RIP(S)A an authorisation for the use or conduct of a CHIS may be granted by the authorising officer where he believes that the authorisation is necessary:

  • for the purpose of preventing or detecting [13] crime or of preventing disorder;
  • in the interests of public safety; or
  • for the purpose of protecting public health [14] .

5.2. The authorising officer must also believe that the authorised use or conduct of CHIS is proportionate to what is sought to be achieved by that use or conduct.

Relevant public authorities

5.3. The public authorities entitled to authorise the use or conduct of a CHIS are laid out in the 2010 Order. [15]

Authorisation procedures

5.4. Responsibility for authorising the use or conduct of a CHIS rests with the authorising officer and all authorisations require the personal authority of the authorising officer. The 2010 Order [16] designates the authorising officer for each different public authority and the officers entitled to act only in urgent cases.

5.5. The authorising officer must give authorisations in writing, except in urgent cases, where they may be given orally. In such cases, a statement that the authorising officer has expressly authorised the action should be recorded in writing by the applicant (or the person with whom the authorising officer spoke) as a priority. This statement need not contain the full detail of the application, which should however subsequently be recorded in writing when reasonably practicable (generally the next working day).

5.6. Other officers entitled to act in urgent cases may only give authorisation in writing.

5.7. A case is not normally to be regarded as urgent unless the time that would elapse before the authorising officer was available to grant the authorisation would, in the judgement of the person giving the authorisation, be likely to endanger life or jeopardise the operation or investigation for which the authorisation was being given. An authorisation is not generally to be regarded as urgent where the need for an authorisation has been neglected or the urgency is of the applicant's or authorising officer's own making.

5.8. Authorising officers should not be responsible for authorising their own activities, e.g. those in which they, themselves, are to act as the CHIS, the handler of the CHIS, or the controller. Furthermore, authorising officers should, where possible, be independent of the investigation. However, it is recognised that this is not always possible, especially in the cases of small organisations, or where it is necessary to act urgently or for security reasons. However, where possible, clear separation should be maintained between those responsible for the investigation and those managing the CHIS to ensure that the welfare and safety of the CHIS are always given due consideration. Where an authorising officer authorises his own activity, the central record of authorisations should highlight this and it should be brought to the attention of a Judicial Commissioner or Inspector during his next inspection. Where a relevant source is deployed on more than one occasion, in the same or different force/regions, it is essential that the authorising officer is informed of that other authorised activity and any risk in relation to this that might affect the activity for which they are responsible.

5.9. All Police Service authorisations of relevant sources should be notified to the IPC when granted by the authorising officer, save where there is a requirement to seek prior approval. The authorisation should be notified to a Judicial Commissioner within seven days. A Judicial Commissioner may provide comments to the authorising officer. The authorising officer will be advised promptly of any comments made by a Judicial Commissioner. The authorising officer will wish to consider all comments made by the Judicial Commissioner. The Police Service should provide the IPC with the authorisation and associated risk assessment for each relevant source.

Information to be provided in applications for authorisation

5.10. An application for authorisation for the use or conduct of a CHIS should be in writing and record:

  • the reasons why the authorisation is necessary in the particular case and on the grounds listed in section 7(3) of RIP(S)A (e.g. for the purpose of preventing or detecting crime);
  • the purpose for which the CHIS will be tasked or deployed (e.g. in relation to drug supply, stolen property, a series of racially motivated crimes etc);
  • where a specific investigation or operation is involved, the nature of that investigation or operation;
  • the nature of what the CHIS conduct will be;
  • the details of any potential collateral intrusion and why the intrusion is justified;
  • the details of any material subject to legal privilege or other confidential information that may be obtained as a consequence of the authorisation; [17]
  • where the intention is to acquire knowledge of matters subject to legal privilege, the exceptional and compelling circumstances that make the authorisation necessary;
  • the reasons why the authorisation is considered proportionate to what it seeks to achieve; and
  • the level of authorisation required (or recommended, where that is different).

5.11. A subsequent record of whether authorisation was given or refused, by whom and the time and date should also be recorded.

5.12. Additionally, in urgent cases, the authorisation should record (as the case may be) the following information in writing as soon as is reasonably practicable:

  • the reasons why the authorising officer considered the case so urgent that an oral instead of a written authorisation was given; or
  • the reasons why the officer entitled to act in urgent cases considered the case so urgent and why it was not reasonably practicable for the application to be considered by the authorising officer.

5.13. When completing an application, a member of a public authority must follow the "duty of candour" principle and ensure that the Authorising Officer and Judicial Commissioner (as the case may be) is provided with all relevant information upon which they should be asked to reach their decision.

Duration of authorisations

5.14. A written authorisation will, unless renewed or cancelled, cease to have effect at the end of a period of 12 months beginning with the day on which it took effect, except in the case of juvenile CHIS or in the case of matters pertaining to the 2014 Order.

5.15. Urgent oral authorisations or authorisations granted or 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.

Reviews

5.16. Regular reviews of authorisations should be undertaken by the authorising officer to assess whether it remains necessary and proportionate to use a CHIS and whether the authorisation remains justified.

Renewals

5.17. Before an authorising officer renews an authorisation, he must be satisfied that a review has been carried out of the use of a CHIS, as outlined above, and that the results of the review have been considered.

5.18. If, 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 may renew it in writing for a further period of 12 months. Renewals may also be granted orally in urgent cases and in this case, can last for a period of 72 hours.

5.19. A renewal takes effect at the time at which the authorisation would have ceased to have effect but for the renewal. An application for renewal should therefore not be made until shortly before the authorisation period is drawing to an end.

5.20. Except where enhanced arrangements exist, the authorising officer who granted the authorisation should renew the authorisation. In the case of a relevant source, renewals for deployment beyond 12 months should be carried out by a Deputy Chief Constable and pre-approved by a Judicial Commissioner.

5.21. Any person who would be entitled to grant a new authorisation can renew an authorisation. However, where possible the authorising officer who granted the original authorisation should consider the renewal.

5.22. Authorisations may be renewed more than once, if necessary, provided they continue to meet the criteria for authorisation. Documentation of the renewal should be retained for at least three years (see Chapter 7).

5.23. Applications by the Police Service for renewal to extend an authorisation of a relevant source beyond 12 months must be approved by a Judicial Commissioner before authorisation by the appropriate authorising officer. The 2014 Order creates an enhanced regime of prior approval for such authorisations. Before an authorising officer grants or renews an authorisation to which the 2014 Order applies, he must give notice to the relevant approving officer. The relevant approving officer will be a Judicial Commissioner.

5.24. The 2014 Order provides that a long term authorisation is one where there is either a period totalling 12 months under a single authorisation; or an accumulation of all authorisations granted in relation to the same relevant source deployed on the same investigation or operation. If a relevant source has not been authorised on the same investigation or operation for at least three years, any previous authorisations will be disregarded for the purposes of calculating the 12 months.

5.25. When deciding if the relevant source is authorised as part of the 'same investigation or operation' in calculating the period of deployment, consideration should be given to the target of the investigation or operation; the legend used by the relevant source; relationships established in previous investigation or operations; and if the activity could be considered legend building. In addition, in the spirit of the legislation, the perception that the relevant source is being authorised in the same investigation or operation should also be considered.

5.26. Where a generic authorisation has been provided as a framework for investigators to establish an online presence intended to provide a basis for future enforcement activity, this should be treated as part of the same investigation or operation for renewal purposes. However, where this generic activity leads to a new operation against targets identified through the online presence, a fresh authorisation may be appropriate. Where the same relevant source is to be deployed in the fresh operation, the extent of any prior engagement on line between the relevant source and those subjects now being looked at as part of that separate, more targeted operation, will be a determinant factor.

5.27. The Police Service should notify the IPC at the nine month point of any authorisation that may require renewal beyond 12 months (as calculated in paragraph 5.25).

Example 1: An authorisation has been granted for a relevant source against a subject for the purposes of buying drugs. The subject disappears for one year and there is insufficient evidence obtained at that time to prosecute. The authorisation is cancelled, having been in place for six months. The subject then returns to deal drugs in the area again and the police service wishes to authorise another relevant source against the subject. If the same relevant source is used, authorisation by an Assistant Chief Constable will last for a maximum of six months before requiring to be renewed. If the Police Service decides to use a different relevant source against the subject it is treated as a new 12 month authority, provided the relevant source has not been authorised previously in respect of the same investigation or operation.

Example 2: An authority for a relevant source is initially granted by an Assistant Chief Constable. This lasts for a period of three months before being cancelled. During the operation it was apparent that legally and privileged material was likely to be accessed. Prior approval by the IPC was granted and the deployment authorised by the Chief Constable for three months (as required by the 2014 Order). After this period it was agreed that the relevant source would no longer be likely to access any legally privileged material. Further deployment could be authorised by the Assistant Chief Constable. This could remain in place for six months before requiring to be renewed or cancelled. The entire period of deployment, including the three months authorised at the higher level for access to legally privileged material, would count toward the 12 month period. Who authorised the relevant source and what they have had access to is irrelevant for the purposes of calculating the 12 month period.

5.28. All applications for the 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 in the initial application;
  • the reasons why it is necessary for the authorisation to continue;
  • the use made of the CHIS in the period since the grant or, as the case may be, latest renewal of the authorisation;
  • the tasks given to the CHIS during that period and the information obtained from the use or conduct of the CHIS; and
  • the results of regular reviews of the use of the CHIS.

Cancellations

5.29. The authorising officer who granted or renewed the authorisation must cancel it if he is satisfied that the use or conduct of the CHIS no longer satisfies the criteria for authorisation or that arrangements for the CHIS's case no longer satisfy the requirements in section 7 of RIP(S)A. Where the authorising officer is no longer available, this duty will fall on the person who has taken over the role of authorising officer or the person who is acting as authorising officer.

5.30. Where necessary and practicable, the safety and welfare of the CHIS should continue to be taken into account after the authorisation has been cancelled and risk assessments maintained in accordance with paragraph 6.13. The authorising officer will wish to satisfy themselves that all welfare matters are addressed and should make appropriate comment in their written commentary.

Refusal of approval of long term authorisation

5.31. If a Judicial Commissioner does not conclude that a long term authorisation should be granted by the Deputy Chief Constable, the Police Service may appeal against the decision to the IPC, within seven days.

5.32. Any risk assessment produced for a relevant source should include details of how the relevant source can be safely extracted should approval by a Judicial Commissioner be refused.


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