Covert Surveillance Policy and Procedure

Directed Surveillance must be authorised by an Authorising Officer prior to approval by the Magistrates Court. The Council’s Authorising Officers are set out in the Surveillance Personnel List at Appendix A. The Service Director Legal and Democratic Services will revise the Personnel List as and when necessary.

An Authorising Officer may only authorise Directed Surveillance for the purpose of the prevention or detection of crime or the prevention of disorder (punishable by a maximum term of at least 6 months’ imprisonment). An Authorising Officer must further be satisfied:

• that sufficient evidence exists and has been documented to warrant the use of the particular directed surveillance exercise requested
• that the use of the particular directed surveillance exercise requested is both necessary and proportionate to the particular objective pursued.

It is fundamentally important that the Authorising Officer is able to evidence that his consideration of the application is based upon the principles of necessity and proportionality. This must include why it is necessary to use covert surveillance in the investigation

The use and conduct of CHIS must also be authorised by an Authorising Officer, prior to approval by the Magistrates Court. The Authorising Officer must be satisfied that the use or conduct of a CHIS is necessary in the circumstances of the case for one of the following reasons: for the purpose of preventing or detecting crime or of preventing disorder;

If one of the above grounds applies, the Authorising Officer must go on to consider whether the use or conduct of a CHIS is proportionate.

In considering whether a particular exercise would be proportionate the Authorising Officer must consider whether it is excessive in the overall circumstances of the case. The fact that an offence is serious is not sufficient to render intrusive actions proportionate. The Authorising Officer must consider the following elements:

• the size and scope of the proposed surveillance activity, weighed against the gravity and extent of the suspected offence
• whether the methods suggested will cause the least possible intrusion on the subject and others
• whether the proposed surveillance activity will have any implications for the private and family life of others, and an explanation of why (if relevant) it is nevertheless proportionate to proceed
• whether the proposed activity is an appropriate use of the legislation and a reasonable way, having considered all reasonable alternatives, of obtaining the information sought
• whether other methods have been considered and the reasons for their non-implementation

Before authorising applications for directed surveillance or CHIS, the Authorising Officer must take into account the risk of “collateral intrusion” i.e. the risk of obtaining private information about persons who are not subjects of the surveillance activity.

Measures should be taken, where practicable, to minimise unnecessary intrusion into the privacy of those who are not the intended subjects. However, activities resulting in collateral intrusion may still be lawful if they are proportionate. Applications by investigating officers should therefore include an assessment of the risk of collateral intrusion and details of any measures to limit this.

Planned surveillance activity against individuals who are not direct suspects should be treated as intended, rather than collateral, intrusion. The necessity and proportionality criteria should be carefully considered in relation to this intrusion.

Particular care should be taken where an investigation involves confidential information. Confidential information consists of matters subject to legal privilege, confidential personal information or confidential journalistic material. Confidential personal information means information held in confidence relating to the physical or mental health or spiritual counselling of an individual. Confidential journalistic information means information held in confidence acquired or created for the purpose of journalism.

Public authorities may obtain knowledge of matters subject to legal privilege via CHIS in the following scenarios:

• where the authority has deliberately authorised the use or conduct of the CHIS to obtain knowledge of matters which are subject to legal privilege
• where the CHIS obtains knowledge of matters subject to legal privilege through conduct which is incidental to his conduct as a CHIS
• where a CHIS obtains knowledge of matters subject to legal privilege where his conduct is not incidental

An authorisation or renewal for the use or conduct of a CHIS intended to obtain, provide access to or disclose knowledge of matters subject to legal privilege must follow an enhanced regime of prior notification and approval. Before an authorising officer grants or renews such an authorisation, they must give notice to and seek approval from a Judicial Commissioner. An application for authorisation or renewal must contain a statement that the purpose, or one of the purposes, of the authorisation is to obtain legally privileged information, and should only be sought in exceptional and compelling circumstances.

If a CHIS is not intended to acquire knowledge of matters subject to legal privilege, but it is likely that such knowledge will nevertheless be acquired, the application should contain an assessment of the degree of likelihood, how any material obtained will be treated, and how access to the material will be minimised.

If the surveillance is likely to yield confidential information as defined above, authorisation must be sought from the Council’s Head of Paid Service (i.e. the Chief Executive) or, in her absence, the Deputy Chief Executive.

The Regulation of Investigatory Powers (Extension of Authorisation Provisions: Legal Consultations) Order 2010 states that directed surveillance carried out on premises which are, at any time during the surveillance, used for the purposes of “legal consultation”, is to be treated as intrusive surveillance. “Legal consultation” is defined as:

• a consultation between a professional legal adviser and his client or any person representing his client or
• a consultation between a professional legal adviser or his client or any such representative and a medical practitioner made in connection with or in contemplation of legal proceedings or for the purpose of legal proceedings

For further information about surveillance involving confidential or legally privileged information or legal consultation, officers should consult the Codes of Practice on Covert Surveillance and Property Interference and Covert Human Intelligence Sources.

If there is any doubt as to whether information likely to be acquired would constitute confidential information, advice should be sought from Legal Services.

The Council can employ or recruit an agent e.g. an agent with more specialised equipment than the Council would have available to act on its behalf in conducting surveillance. The same authorisation procedures must be followed.

The Council should also be mindful of any similar surveillance taking place in other areas which could have an impact on its activities. Where an Authorising Officer considers that conflicts may arise, they should consult a senior police officer within the area.