Covert Surveillance Policy and Procedure

A covert human intelligence source (“CHIS”) is a person who establishes or maintains a relationship with someone in order to covertly obtain information, to provide another person with access to information or to disclose information as a consequence of that relationship. Essentially, this covers the use of informants and undercover officers.

Whether a “relationship” has been established will depend on all the circumstances, including the duration of the contact and the nature of the covert activity.

Further details and guidance are provided in the CHIS Code of Practice and this should be referred to in all cases of potential CHIS activity. For potential online CHIS activities please see above section on online covert surveillance and/or contact RIPA co-ordinator.

For example, where a test purchaser makes a single purchase, the relationship is likely to be too limited to require a CHIS authorisation. On the other hand, if the test purchaser has to become acquainted with the vendor in order for him to make a sale, a relationship will have been established and the test purchaser will be treated as a CHIS. If there is any doubt whether authorisation is required in relation to a particular operation, then the Investigating Officer should seek authorisation.

If a person under the age of 18 is to be used as a source, authorisation must be obtained from either the Head of Paid Service or (in her absence) the person acting as Head of Paid Service.

On no occasion should the use or conduct of a person under 16 be authorised to give information against his parents or any person who has parental responsibility for him.

The Regulation of Investigatory Powers (Juvenile) Order 2018 SI 715 applies to the use of juvenile sources. This requires that where a source is under 16, an appropriate adult must be present at all meetings between the source and the Council’s officers. The Order also requires a detailed risk assessment to be undertaken where a source is under 18. The existence and magnitude of any physical or psychological risk must be identified and the Authorising Officer must be satisfied that the use of the source is justified in light of that risk and that the risk has been properly explained to and understood by the source.

Authorisations for the use of juvenile source cease after 4 months instead of 12 months and should be subject to at least monthly review.

The use of a juvenile e.g. to attempt to buy alcohol or tobacco from a shop suspected of selling to persons under age may not constitute the use of a juvenile as a CHIS for the reasons set out above.

Further details and guidance is set out in the CHIS Code of Practice.

Special safeguards also apply to the authorisation of a vulnerable adult as a CHIS. A vulnerable adult is a persona aged over 18 who by reason of mental disorder or vulnerability, other disability, age, or illness, is or may be unable to take care of themselves or protect themselves from harm or exploitation. A vulnerable adult should only be considered as a CHIS in exceptional circumstances and the Head of Paid Service or (in her absence) the person acting as Head of Paid Service must give the authorisation.

A member of the public who reports a matter e.g. about unlawful trading to an officer is not a CHIS. If an Investigating Officer wishes to request that person to e.g. maintain a relationship with a trader and keep records of their dealings or to make further inquiries of a trader, authorisation will, however, be required.

There must at all times be arrangements in place for the proper oversight and management of CHIS, including appointing individual officers to act as ‘controller’ and ‘handler’ for each CHIS.

The ‘handler’ will have day to day responsibility for:

• dealing with the CHIS on behalf of the Council
• directing the day to day activities of the CHIS
• recording the information supplied by the CHIS
• monitoring the CHIS’s security and welfare

The handler of a CHIS will usually be of a rank or position below that of the Authorising Officer.

The ‘controller’ will normally be responsible for the management and supervision of the handler, and general oversight of the use of the CHIS.

Section 29(5) of RIPA provides that an Authorising Officer may only authorise the use of a CHIS if satisfied that there is at all times a person with the responsibility for keeping a record of the use made of the source. The Regulation of Investigatory Powers (Source Records) Regulations 2000 SI 2000/2725 sets out the particulars that must be included in the records relating to each source.

Before authorising the use or conduct of a CHIS, the Council should carry out a risk assessment to determine the risk to the CHIS and the likely consequences, should the role of the CHIS become known. Any matters of concern should be considered by the authorising officer and a decision taken as to whether to continue. The ongoing safety and welfare of the CHIS should continue to be taken into account after the authorisation has been cancelled.

Material produced as a result of the use of a CHIS must be retained only for so long as necessary. When reviewing the retention of records, the Council must consider its duty of care to the CHIS and the likelihood of future civil or criminal proceedings relating to the information supplied.

Appendix C provides further information about the monitoring and welfare of CHIS.