In this new 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).
Conclusion
This chapter has sought to outline, by way of basic introduction, the background and general principles underpinning covert investigation law in England and Wales and so set a context for the more detailed consideration of individual statutory powers that follow. Attempting to achieve such an objective in the space of one chapter is not unambitious and the reader is encouraged to explore further discussion of these issues in the additional literature cited above. This chapter should also be read in conjunction with Chapter 12, which considers the management of covert investigation. Authorizing officers in particular have to be aware of management principles as well as the statutory principles considered briefly here. In both areas of consideration, just because it can be done does not mean it should or has to be done.
Checklist of key issues when considering whether or not to deploy covert investigation techniques
• What evidence or intelligence is being sought?
• How is it relevant to the operation under consideration?
• What is the least intrusive means of securing such evidence or information?
• What are the risks to the organization of such tactics? (Chapter 11)
• What are the risks to the organization’s staff of such tactics? (Chapter 11)
• What are the risks to the public or specific third parties when such tactics are deployed? (Chapter 11)
• What are the risks to the subject of the investigation? (Chapter 11)
• Will such methods breach Article 8(1)? (1.7.1)
• Is there justification for doing so provided by Article 8(2)? (1.7.4)
• How is the legality test met? (1.7.3)
• How is the legitimacy test met? (1.7.4)
• How is the necessity test met? (1.7.5)
• How is the proportionality test met? (1.7.5)
• Are the arguments justifying the application to use covert investigation based on reliable information/intelligence, or has the applicant adopted a ‘tick-the-box’ approach to completing the application without giving full consideration to the facts of the case and the issues arising?
• Have the arguments justifying the granting of authorization to use covert investigation been fully articulated, or has the authorizing officer merely paid lip service to the pro forma authorization template via which authority is granted?
• How are the methods by which the evidence/intelligence will be obtained to be protected at trial? (Chapter 12)
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
|
