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| SIO's Corner: Authorisation |
11-Mar-10
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| This week we look at authorisation and cancellation of Directed Surveillance operations .......... |
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In this series we consider Covert Investigation as a means to detection. This includes why investigate covertly, the drawbacks, directed and intrusive surveillance, interception of communications, mobile phones, computers, CHIS's and the legal issues including the effect of the Human Rights legislation.
The articles are excerpts from a new book from Blackstone’s, 'Covert Investigation' 2nd Edition, written by two highly experienced former detectives (see ‘About the Authors’ at the end of the article).
What Authority Regime Is Required for Directed Surveillance?
Individuals empowered within each public authority to grant authorities for directed surveillance have been defined in the Regulation of Investigatory Powers (Prescription of Offices, Ranks and Positions) Order 2000 (SI 2000/2417) and the Regulation of Investigatory Powers (Prescription of Offices, Ranks and Positions) (Amendment) Order 2002 (SI 2002/1298) as amended and consolidated by 2003/3171, 2005/1084, 2006/594, and 2006/1874.
Thus authorizing officers include, amongst others, police superintendents, military Provosts Marshal, Lieutenant Colonels, Wing Commanders, or Commanders (Royal Navy), Band 9 customs officers, assistant directors of the SFO, prison service area managers, local authority assistant chief officers, and senior investigation managers in the Royal Mail.
Cancellation of Authorities
The authorizing officer who granted or last renewed the authorization (or, if no longer available, the person who has succeeded him in that role) must cancel it if he is satisfied that the directed surveillance no longer meets the criteria upon which it was authorized (Code paras 4.28 and 4.29).
Definition of urgent circumstances
Urgent circumstances are defined as instances in which to wait for an authorizing officer to become available to consider a written application would either
• endanger life
or
• jeopardize the investigation concerned (Code para 4.13)
Hint and tip: Negligence on the part of an applicant or conduct of the authorizing officer’s own making does not constitute urgency.
Thus where an investigator forgets to apply for authorization until just before the operation is due to begin or where the authorizing officer does not or cannot attend to the application before the operation is due to start, the operation will have to be postponed until the full written application procedure is carried out (Code para 4.13).
There are two types of urgent authority procedure: one where an authorizing officer is available, and one where such an officer is unavailable.
In genuinely urgent cases an available authorizing officer may issue an oral authority (Code para 4.12), recording the fact that this has been done as soon as practicable. In the police service it is almost unheard of now for there not to be a duty on-call superintendent to deal with urgent PACE and RIPA authorities.
In urgent cases in which there is no authorizing officer immediately available, specified individuals entitled to act in urgent cases (SI 2003/3171, SI 2005/1084, SI 2006/594, SI 2006/1874) may give a written authorization for directed surveillance for a period of seventy-two hours. Such individuals cannot issue oral authorities. The current edition of the Code can be interpreted ambiguously on this point but the clarification will be found in Code para 4.20. Police inspectors, for instance, have fallen foul of issuing urgent oral authorities in the absence of a superintendent when in fact they had no alternative but to require the applicant to submit a full written application (see scenario below).
Scenario illustrating issues around urgent authorization for directed surveillance
Intelligence came to light at 0300 one night about a burglary being planned for immediate execution. Police desired to maintain surveillance on the offender’s house. Having tried unsuccessfully several times to contact the duty superintendent, officers thought it expedient to seek an urgent authority from the night duty inspector on the basis of an oral application. The inspector gave verbal authority for the surveillance to be conducted. However, the OSC confirmed that, absent an authorizing officer, an inspector could only consider a full written application upon which to base an authorization. In this particular instance circumstances were such that there would not have been time to complete and submit such an application to the inspector before the burglary had been committed and the burglar had returned home.
Thus alternative intervention strategies not involving surveillance, including perhaps disruption such as the presence of marked police vehicles in the immediate vicinity, should have been considered.
Authorizing officers should not authorize covert surveillance in investigations in which they have direct involvement, although this may sometimes be unavoidable (Code para 4.14).
Authorizing officers must apply two tests when considering whether to grant an authorization. These are set out in s 28(2) RIPA and are explained in the OSC Annual Report 2000–2001, para 4.13: ‘When giving an authorization for directed surveillance . . . the authorizing officer must believe that the authorized surveillance is proportionate to what is sought to be achieved by carrying it out, and that the action is necessary for’ one of the purposes defined in s 28(3) RIPA (emphasis added).
Section 28(4) makes it clear that only conduct and circumstances specified in the authority will be authorized and therefore lawful. This important sub-section obliges investigators and authorizing officers to be very precise in the wording of their applications and authorities.
For example, investigators conducting surveillance decide to secure photographic and video evidence. If the use of still photography and video cameras is not specified in the authority, then any evidence so secured will have been unlawfully obtained and therefore vulnerable to exclusion under s 78 PACE.
Lack of precision in the wording of authorities, resulting in unlawful activity by investigators, is a recurring deficiency identified by the OSC (Annual Report 2003–2004, 12).
Thus investigators must seek detailed authority for all the conduct they wish to engage in, and authorizing officers must ensure that their authorities specify in detail all conduct that they are content to authorize.
Where authorizing officers authorize more than has been applied for they must state their reasons for doing so (OSC Annual Report 2005, 3.5). Similarly they must record their reasons for not authorizing all or any of the conduct detailed in an application.
Authorizations last for three months and can be renewed. They should be reviewed at monthly intervals or whenever there is a material change in circumstances affecting the validity of the authority.
In relation to town centre CCTV systems, the Covert Surveillance Code (para 1.4) provides that, except when used for preplanned surveillance operations, the use of such systems does not require a directed surveillance authority.
About the authors: Clive Harfield is Associate Professor of Law at the University of Wollongong, NSW. He previously served with the National Crime Squad and as a Detective Inspector and BCU Intelligence and Covert Operations Manager for Warwickshire Police. Karen Harfield is a Senior Executive with the Australian Crime Commission who previously served with HM Inspector of Constabulary and as Head of Intelligence for Warwickshire Police. Clive and Karen Harfield are also co-authors of 'Intelligence', another Blackstone's Practical Policing title.
To purchase a copy of 'Covert Investigation 2nd edition' click here
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