In this series we study 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 Action Requires an Interception Authority in Relation to the Investigation of Computers?

The interception of communications whilst in the course of their transmission made via computers constitutes interception for which a Secretary of State’s warrant is required (see Chapter 7).

Important case law exists in relation to emails. It has been held (and at the time of writing, May 2008, this has not been appealed) that s 1(5) RIPA must be read as providing implicit lawful authority within the context of s 9 PACE, even where the net effect amounts to an interception of email outside the warranted regime provided for under s 5 RIPA (NTL Group Ltd v Ipswich Crown Court [2002] EWHC 1585). In this case a service provider had to divert (thus intercept) emails to an alternative server pending judicial consideration of an application for a production order. The production order was granted and investigators were allowed to access the emails that had been stored in this manner. The product from such interception could be used in evidence (s 18(4) and (5) RIPA).

What Action Requires a CHIS Authority in Relation to the Investigation of Computers or Using Computers?

Where it is proposed to deploy investigators or victims acting on behalf of investigators, to interact with suspects via a computer either by email, webcam or in chat-rooms, a CHIS authority will be required if it is proposed to use, for the purpose of the investigation, any information obtained by the investigator as a result of the on-line relationship in circumstances in which the other party will not be aware of the investigator’s true purpose in acquiring such information.

Covert on-line investigation to identify Internet offenders creates the potential for ‘blue-on-blue’ situations to arise: circumstances in which two undercover, on-line investigators interact on-line and begin to investigate each other. Proper procedures through NCIS or the relevant department within SOCA which will replace NCIS are in place to avoid this.

It is good practice to video the interaction of undercover investigators on-line for evidential integrity purposes. The use of webcams should be avoided unless the investigator is an undercover investigator also trained to engage in, and for the purpose of the investigation intending to conduct, face-to-face meetings.

Deployment of a conventional CHIS (formerly known as an informer) to obtain information via an on-line interactive relationship also requires a CHIS authority. Where a CHIS coincidentally is requested to obtain information from a database to which he or she has lawful access, if this does not involve the CHIS maintaining a relationship that facilitates the accessing or obtaining of the information it would not appear to require an authorization.

What Is the Appropriate Authority for Accessing Data Stored on a Computer?

Covert investigation of data stored on a computer hard drive constitutes interference with property and so requires the necessary authority under Part III PA97. An alternative, but overt, coercive means of accessing such stored data would be via a PACE warrant or production order.

One of the most frequently asked questions from investigators involves accessing the email account of a suspect when the password to that account has come into the possession of investigators. ‘I have X’s password: can I access his email account?’ Without the informed (and preferably written) consent of the suspect, no: such action constitutes a criminal offence under the Computer Misuse Act 1990.

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