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).

Introduction

Computers can be the scene of a crime (victim evidence), the means by which a crime is planned or committed (offender evidence; intelligence), a means of communication when facilitating a conspiracy (offence and offender evidence; intelligence), and a means of (covertly) investigating crime. Once again, precision in the drafting of applications and authorities is important, especially so given the multiple roles of the computer within covert investigation.

This is an area of developing law. It is also an area in which investigators without expertise in hi-tech crime investigation would be well advised to seek up-to-date advice from computer crime investigators when planning covert operations. This chapter should be seen as a general introduction to a rapidly evolving arena.

This is also an area in which particular attention must be made to collateral intrusion since the surveillance can be focused on the use made of a computer rather than direct surveillance of a person. Since in any given household more than one person might use any given computer, the potential for collateral intrusion when monitoring computer use is particularly high and careful consideration to the potential for and management of such intrusion will be required in both applications and authorities. No intrusion can be authorized that is disproportionate to the crime under investigation and the information that is expected to be obtained as a result of this particular investigation tactic.

Which Public Authorities Can Investigate Computers Covertly and Which Legal Authorities Are Required?

Computers are property and so covert investigation of computers will constitute interference with property if it is necessary to access, either physically or through the deployment of software, the target computer in order to effect the investigation or surveillance.

Additionally, surveillance of the use of a computer will often take place in circumstances that comprise intrusive surveillance. And since live-time email (as opposed to stored emails) is a communication in progress, should that be the subject of investigation, then an interception warrant will be required.

The authority regimes for intrusive surveillance, property interference, and interception of communications therefore dictate which public authorities can conduct such covert investigation of computers (see Chapters 2, 3, and 7).

Those agencies empowered to interfere with property are:

• Police forces in England and Wales maintained under s 2 Police Act 1996

• Police forces maintained under s 1 Police (Scotland) Act 1967

• The Metropolitan Police

• The City of London Police

• The Police Service of Northern Ireland

• HM Revenue and Customs

• The Serious Organised Crime Agency

• MI5, MI6, and GCHQ (s 5 Intelligence Services Act 1994).

The organizations are defined by reference to who may authorize such interference and entry (s 93(5) PA97 and s 5 Intelligence Services Act 1994).

Those agencies able to conduct intrusive surveillance are:

• Any police force maintained under s 2 Police Act 1996

• Any police force maintained under s 1 Police (Scotland) Act 1967

• The Metropolitan Police Service

• The City of London Police

• The Police Service of Northern Ireland

• The Ministry of Defence Police

• The British Transport Police

• The Serious Organised Crime Agency

• The Army, Navy, Royal Marines, and Air Force

• HM Revenue and Customs

• MI5, MI6, and GCHQ (by virtue of s 42 RIPA).

There are circumstances in which computers can be the subject of directed surveillance, in which case a greater number of public authorities may lawfully conduct such investigations (see Chapter 2):

• Any police force as defined by s 81(1) RIPA: essentially the forty-three police forces of England and Wales, the Scottish police forces, the Police Service of Northern Ireland, British Transport Police, the Ministry of Defence police, and the military police forces

• The Civil Nuclear Constabulary

• The Force comprising the special constables appointed under s 79 of the Harbours, Docks and Piers Clauses Act 1847 on the nomination of the Dover Harbour Board

• The Force comprising the constables appointed under art 3 of the Mersey Docks and Harbour (Police) Order 1975 (SI 1975/1224)

• The Serious Organised Crime Agency

• The Serious Fraud Office

• The Independent Police Complaints Commission

• The Office of the Police Ombudsman of Northern Ireland

• MI5, MI6, and GCHQ

• The Army, Royal Navy, Royal Marines, and Royal Air Force

• The Commissioners of HM Revenue and Customs

• Any local, county, or district council in England, a London borough council, the Common Council of the City of London in its capacity as a local authority, the Council of the Isles of Scilly, and any county council or county borough council in Wales

• Any fire authority within the meaning of the Fire Services Act 1947 (read with para 2 of Schedule 11 to the Local Government Act 1985)

• The Ministry of Defence

• The Department for Environment, Food and Rural Affairs

• The Department of Health

• The Home Office

• The Northern Ireland Office

• Department for Work and Pensions

• Department for Transport

• The National Assembly for Wales

• A universal service provider (within the meaning of the Postal Services Act 2000) acting in connection with the provision of a universal postal service (within the meaning of that Act)

• The Postal Services Commission

• The Charity Commission

• The Environment Agency

• The Financial Services Authority

• The Food Standards Agency

• The Gambling Commission

• The Office of Fair Trading

• The Health and Safety Executive

• A Special Health Authority established under s 28 of the National Health Service Act 2006 or s 22 of the National Health Service (Wales) Act 2006

• Her Majesty’s Chief Inspector of Schools in England

• The Information Commissioner

• The Royal Pharmaceutical Society of Great Britain

• The Department of Health, Social Services and Public Safety (Northern Ireland)

• The Department of Agriculture and Rural Development (Northern Ireland)

• The Department of Enterprise, Trade and Investment (Northern Ireland)

• The Department of the Environment (Northern Ireland)

• Any district council (within the meaning of s 44 of the Interpretation Act (Northern Ireland) 1954)

• The Department of Regional Development (Northern Ireland)

• The Department of Social Development (Northern Ireland)

• The Department of Culture, Arts and Leisure (Northern Ireland)

• The Foyle, Carlingford and Irish Lights Commission (Northern Ireland)

• The Fisheries Conservancy Board for Northern Ireland (Northern Ireland)

• A Health and Social Services trust established under art 10 of the Health and Personal Social Services (Northern Ireland) Order 1991 (SI 1991/194 (NI 1))

• A Health and Social Services Board established under art 16 of the Health and Personal Social Services (Northern Ireland) Order 1972 (SI 1972/1265 (NI 14))

• A Health and Safety Executive for Northern Ireland

• The Northern Ireland Central Services Agency for the Health and Social Services

• The Fire Authority for Northern Ireland

• The Northern Ireland Housing Executive.

Regarding which authorities are required under what circumstances, the simplest approach to answering this question is to distinguish the answers according to investigation technique typology.

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.

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