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 Powers Does the Law Provide in Relation to Interference with Property or Wireless Telegraphy and Entry onto Land?

Investigators can take such action, in respect of property or wireless telegraphy in the relevant area, as is specified in the authorization (s 93(1) PA97). Authorizing officers are advised to ‘state explicitly what is being authorized’ (OSC Guidance and Procedures, para 3.4). Thus in relation to the placing of an audio device inside residential premises, for example, every action required to achieve this objective must be specifically authorized, including separate reconnoitring operations to determine feasibility prior to the actual deployment and subsequent operations to retrieve the device.

Certain criteria must be present for the power to be applied.

KEY POINT FOR AUTHORIZING OFFICERS

Before authorizing such action as may be required the authorizing officer must believe:

(a) that the taking of the action specified is necessary for the purpose of preventing or detecting serious crime; and

(b) that the taking of such action is proportionate to what the action seeks to

achieve (s 93(2) PA97).

When considering proportionality, applicants and authorizing officers will have to take into account that increasingly sophisticated surveillance technology may negate the need for property interference: for instance, external monitoring of conversations within a premises rather than internal monitoring.

Definition of serious crime

Conduct will constitute serious crime if:

(a) it involves the use of violence, or it results in substantial financial gain, or it is conducted by a large number of persons in pursuit of a common purpose; or

(b) the offence, or one of the offences, is an offence for which a person who has attained the age of twenty-one and has no previous convictions could reasonably be expected to be sentenced to imprisonment for a term of three years or more (s 93(4) PA97).

What Authority Regime Is Required for Interference with Property or Wireless Telegraphy and Entry onto Land?

Where the above criteria are met the following may authorize such interference (s 93(5) PA97), in some circumstances (described below 4.5) subject to the prior approval of the OSC:

• Chief Constable (police forces in England, Wales, and Scotland)

• Commissioner or Assistant Commissioner (Metropolitan Police)

• Commissioner (City of London Police)

• Chief Constable and Deputy Chief Constable Police Service of Northern Ireland

• A designated authorizing officer within the Serious Organised Crime Agency

• Chief Constable British Transport Police

• Chief Constable Ministry of Defence Police

• Provost Marshals in the Army, Royal Navy, and Royal Air Force

• Any customs officer designated by the Commissioners of Revenue and Customs for this purpose.

Where it is not reasonably practicable to obtain the authority of the authorizing officer identified above, the Act specifies that designated deputies may make such authorizations (s 94 PA97).

KEY POINTS ON PROPERTY INTERFERENCE AUTHORIZATION TIMESCALES

Property interference authorities are effective from the time of signing, but authorizations are notified to the Commissioner for scrutiny. Property interference authorities requiring prior approval are only effective from the time the authorizing officer receives written approval from the OSC (OSC Annual Report 2005, 3.16).

Authorizations, renewals, and cancellations should be notified to the OSC within four working hours of being given. In the case of prior approval authorizations, notifications should be sent to the OSC at least sixteen working hours before surveillance is due to start. Decisions on prior approval applications from Commissioners should be received within eight working hours.

KEY POINTS ON DRAFTING APPLICATIONS AND AUTHORITIES

• When considering combined authorities (s 33(5) RIPA), first identify whether this will lead to complications as a result of disclosure requirements.

• To ensure precision of applications (and therefore lawful authority), be careful to use words that are not ambiguous (for instance ‘monitor’ is open to varied interpretation, while ‘listen’ and ‘watch’ are more precise; use both if both are required).

KEY POINTS FOR AUTHORIZING OFFICERS

• Do not use the term ‘subject’ without identifying the person.

• If an authorization is no longer necessary it must be cancelled and notice given to the OSC within four hours of signing the cancellation.

• Rank or position of the authorizing officer must be indicated on the authority and if the authorizing officer is a designated deputy, this must also be indicated on the authority, as must the reason why the deputy has given the authority.

• Designated deputies can only authorize if the authorizing officer is too ill, on annual leave, or absent from their office or home and so not able to access a secure telephone or fax machine within a reasonable time. The reason for the absence of the authorizing officer must be included in the application.

• The scope of an authority may not be expanded on renewal but it may be reduced. A new authority is required if the scope of the surveillance is to increase.

Authorizing officers must review and renew the authorities they gave.

(OSC Annual Report 2005, section 4)

Excepting property warrants issued to the intelligence services by the Secretary of State (s 5 Intelligence Services Act 1994 and Covert Survillance Code paras 6.32 6.36), authorizations for such interference or entry onto property must be in writing and will last for three months (s 95 PA97). Authorities issued orally in matters of urgency have effect for seventy-two hours only.

Authorizing officers may only authorize applications made by members of their organization (s 93(3)) and may only authorize activity with the relevant area over which they have jurisdiction (s 93(6)). In each case this includes, where appropriate, the twelve nautical miles of territorial waters adjacent to the relevant area.

Section 96 imposes on authorizing officers the obligation to notify the OSC as soon as reasonably practicable when granting, renewing, or cancelling any 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