Covert human intelligence sources

Operational policy and guidance on the use and conduct of covert human intelligence sources (CHIS) and authorisation under the Regulation of Investigatory Powers Act 2000.

• What is a covert human intelligence source?
• When might the Council use covert human intelligence sources?
• When is a relationship covert?
• What safeguards must the Council observe before using human intelligence sources?
• What does the Regulation of Investigatory Powers Act 2000 say?
• What about other types of informants?
• What about test purchasing from retailers?
• What about anti-social behaviour monitoring?
• Who in the Council may authorise the use of a Covert Human Intelligence Source (CHIS)?
• How is an application for authorisation made?
• How long will the authorisation last?
• Can an authorisation be renewed?
• Can or should an authorisation be revoked?
• What will the Authorising Officer have to consider?
• What is meant by the term proportionate?
• What management arrangements should be in place for the covert human intelligence source?
• Can a child be a covert human intelligence source?
• What about vulnerable persons such as those who are mentally ill, infirm or have learning disabilities?
• What type of things can a CHIS be asked to do?
• What is confidential material?
• Are there any special rules for confidential material?
• What records must be kept?
• What information should be kept about the CHIS?
• Who may see the records?
• Who keeps the records?
• Who is responsible for overseeing compliance with the 2000 Act?
• What reference documents are there?

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What is a covert human intelligence source?

A person is a covert human intelligence source (CHIS) if he/she establishes or maintains a personal or other relationship for the hidden purpose of obtaining information, or to provide access to any information to any other person, or he/she secretly discloses information obtained by the use of such a relationship, or as a consequence of the existence of such a relationship.

When might the Council use covert human intelligence sources?

The Council is involved in many of the everyday functions of law enforcement. For example, trading standards officers might use an informer (CHIS) as part of their enforcement function. The Councils Internal Auditors might use an informer to see if there is an abuse of someone's official position, eg stealing money.

When is a relationship covert?

A relationship is used covertly if it is conducted in a manner calculated to ensure that one party is unaware of its purpose.

What safeguards must the Council observe before using human intelligence sources?

The Council has to be satisfied:

• firstly, that the use of a CHIS is in connection with a statutory function with which the Council is charged
• secondly, if the use of a CHIS is likely to intrude upon someone's human rights, for example the right to respect for private and family life, home and correspondence, that such interference can be justified legally.
• thirdly, that the use of a CHIS is properly authorised and therefore lawful

What does the Regulation of Investigatory Powers Act 2000 say?

The Regulation of Investigatory Powers Act 2000 (the 2000 Act) came into operation in September 2000. The 2000 Act regulates the use of investigatory powers, which are externally supervised by Surveillance Commissioners, and the Act was passed to ensure that law enforcement and other operations are consistent with the duties imposed upon public authorities by the Human Rights Act. The 2000 Act provides that the conduct or use of covert human intelligence will be lawful if an authorisation has been properly issued and a person acts in accordance with that authorisation. This is important because:

• firstly, a person acting in accordance with a duly issued authorisation will be protected from civil liability
• secondly, if the Council is involved in any proceedings before a Court the Council will be able to show that it has acted lawfully and that it has gathered evidence properly

In short, the purpose of the 2000 Act is to ensure that things which would otherwise be unlawful because they are in breach of the Human Rights Act can be carried out legally. If you do illegal things then the consequences may be firstly that your evidence is excluded by a Court because it was obtained unlawfully, and secondly the Council can be liable to pay civil damages for breach of right to privacy.

Any application for authority for conduct and use of a Covert Human Intelligence Source (CHIS) must be completed having regard to the Home Office Covert Human Intelligence Sources Code of Practice.

What about other types of informants?

The 2000 Act does not apply to members of the public who volunteer information as part of their civic duties, or members of staff who report information in accordance with their contract of employment, or under the Council's Whistleblowing Policy.

What about test purchasing from retailers?

Carrying out test purchases will not require the purchaser to establish a relationship with the supplier with the covert purpose of obtaining information and, therefore, the purchaser will not normally be a CHIS. For example, authorisation would not normally be required for test purchases carried out in the ordinary course of business (eg walking into a shop and purchasing a product over the counter).

By contrast, developing a relationship with a person in the shop, to obtain information about the seller's suppliers of an illegal product (eg illegally imported products), will require authorisation as a CHIS. Similarly, using mobile hidden recording devices or CCTV cameras to record what is going on in the shop will require authorisation as directed surveillance. A combined authorisation can be given for a CHIS and also a directed surveillance.

What about anti-social behaviour monitoring?

Persons who complain about anti-social behaviour, and are asked to keep a diary, will not normally be a CHIS, as they are not required to establish or maintain a relationship for a covert purpose. Recording the level of noise (eg the decibel level) will not normally capture private information and, therefore, does not require authorisation.

Recording sound on private premises could constitute intrusive surveillance, unless it is done overtly. For example, it will be possible to record sound if the noisemaker is warned that this will occur if the level of noise continues. Placing a stationary or mobile video camera outside a building or in a building to record anti-social behaviour outside on residential estates requires prior authorisation.

Who in the Council may authorise the use of a Covert Human Intelligence Source (CHIS)?

Authorising officers are at Operational Manager level or above and must be on the accredited internal list to act as an Authorising Officer.

Usually the Authorising Officer is not responsible for authorising a CHIS in connection with their own activities, ie those operations or investigations in which they are directly involved or for which they have direct responsibility, or where he/she would be the Controller or Handler.

How is an application for authorisation made?

An application for authorisation for the use or conduct of a CHIS must be in writing. It should specify:

• the details of the purpose for which the CHIS will be used
• the identities, where known, of those to be the subject of the use or conduct of the CHIS
• details of what the CHIS will be asked to do
• an account of the investigation or operation
• the grounds on which the authorisation is sought (eg for the detection of crime or the protection of public health)
• why the use of CHIS is considered to be proportionate to what it seeks to achieve
• an explanation of the information which it is desired to obtain as a result of the authorisation
• details of the level of authority required
• the potential for collateral intrusion, that is to say, interference with the privacy of persons other than the subjects of the investigation, and an assessment of the risk of such intrusion or interference
• the likelihood of acquiring any confidential material and what that material might be
• where authorisation is sought urgently, reasons why the case is considered to be urgent

There should then be a record of whether authority was given or refused, by whom, and the time and date.

How long will the authorisation last?

Except in relation to a juvenile CHIS the written authorisation will cease to have effect (unless renewed) at the end of a period of 12 months beginning with the date on which it took effect. Exceptionally, an oral authorisation may be given in cases of urgent necessity, in which case the detail referred to above should be recorded in writing as soon as reasonably practicable, and such authorisations will cease to have effect after 72 hours beginning with the time when the authorisation was granted.

Can an authorisation be renewed?

If at any time before an authorisation ceased to have effect, the Authorising Officer considers it necessary for the authorisation to continue for the same purpose for which it was given, then he/she may renew it in writing for a further period beginning with the day when the authorisation would have expired but for the renewal. The renewal will normally be for 3 months. The request for a renewal of an authorisation should record:

• whether this is the first renewal, or on how many occasions it has been renewed
• the same information as outlined for an original application
• details of any significant difference in the information given in the previous authorisation
• the reasons why it is necessary to continue with the CHIS
• the content and value to the investigation or operation of the information so far obtained by the CHIS
• an estimate of the length of time the use or conduct of the CHIS will continue to be necessary

Can or should an authorisation be revoked?

The Authorising Officer who granted or last renewed the authorisation must cancel it if he/she is satisfied that the use of CHIS no longer meets the criteria for authorisation.

Regular reviews of authorisations must be undertaken to assess the need for the use of the CHIS to continue. The results of a review must be recorded on the Home Office prescribed forms. Reviews should be more frequent where there may be collateral information obtained relating to persons other than those who are the subject of surveillance. As soon as a decision is taken to cease the operation, an instruction must be given to those involved in the operation to stop using the CHIS. The date on which that instruction is given should also be recorded.

What will the Authorising Officer have to consider?

The Regulation of Investigatory Powers (Directed Surveillance and Covert Human Intelligence Sources) Order 2003 restricts the Council’s powers to the detection and prevention of crime and disorder.

Firstly, the Authorising Officer must be satisfied that the authorisation is necessary for the purpose of the investigation given all the circumstances. An alleged criminal offence must be readily identifiable.

Secondly, the Authorising Officer must also believe that:

• the use of the CHIS is proportionate to what needs to be achieved
• satisfactory arrangements exist for the management of the CHIS
• there are arrangements for a person to have responsibility for maintaining the records

What is meant by the term proportionate?

Proportionality is a very important concept, and it means that any interference with a persons rights must be proportionate to the intended objective. The action must be aimed at pursuing a legitimate aim (for example, protecting a child from potential abuse). Interference will not be justified if the means used to achieve the aim are excessive in all the circumstances. Thus the use or conduct of the CHIS must be designed to do no more than meet the objective in question; it must not be unfair or arbitrary; and the impact on the individual or group of people concerned must not be too severe. In deciding whether the use or action is proportionate the risk of intrusion into the privacy of persons other than those who are the object of the investigation must be considered, and the measures proposed to minimise such intrusion must be assessed. The proposed means of investigation through the use of a CHIS, must not be excessive by relation to the mischief they are intended to expose; a CHIS must be the least invasive means available for that purpose.

What management arrangements should be in place for the covert human intelligence source?

The following persons must be nominated in relation to each CHIS:

• A Handler - this person must be an officer of the Council and that person will have day to day responsibility for dealing with the CHIS and for the CHIS's security and welfare
• A Controller - this person must be an officer of the Council and that person will have a general oversight of the use made of the CHIS
• A Record Keeper - this person must be an officer of the Council who is given the responsibility for maintaining the records relating to the CHIS and the use of the CHIS

The Handler will need to explain to the CHIS what he or she must do. For example, the CHIS may be a trading standards officer or health inspector who is asked to undertake a test purchase of items which have been labelled misleadingly or are unfit for consumption.

It is not the intention that authorisations be drawn so narrowly that a separate authorisation is required each time the Handler asks the CHIS to do something. Rather, an authorisation might cover, in broad terms, the nature of the CHISs task. If this changes, then a fresh authorisation may need to be sought.

When unforeseen action occurs, it must be recorded as soon as practicable after the event and, if the existing authorisation is insufficient, a new authorisation should be obtained before any further such action is carried out.

The day to day contact with the CHIS is to be conducted by the Handler. Some arrangements may be made in direct response to information provided by the CHIS on the occasion of his or her meeting with the Handler.

Steps should be taken to protect the safety and welfare of the CHIS, when carrying out actions in relation to an authorisation, and to others who may be affected by the actions of a CHIS. Before authorising the use or conduct of a CHIS, the Authorising Officer should ensure that a risk assessment is carried out to determine the risk to the CHIS of any action and the likely consequences should the role of the CHIS become known to the subject of the investigation or those involved in the activity which is being investigated. The ongoing security and welfare of the CHIS after the cancellation of the authorisation should also be considered at the outset.

The Handler is responsible for bringing to the Controllers attention any concerns about the personal circumstances of the source, insofar as they might affect:

• the validity of the risk assessment
• the proper conduct of the CHIS
• the safety and welfare of the CHIS

Where deemed appropriate, the Controller must ensure that the information is considered by the Authorising Officer, and a decision taken on whether or not to allow the authorisation to continue.

The proposed covert surveillance (which is defined to include directed surveillance and the conduct and use of CHIS) shall comply with Plymouth City Council's Health and Safety Corporate Policy and with the Health and Safety at Work Act 1974.

A written health and safety risk assessment shall where practicable be prepared and submitted with any application for authorisation.

The Investigating Officer is required to complete the risk assessment to determine:

• the risk to the safety and welfare of the CHIS of any tasking;
• the likely consequences should the role become known to the target or those involved in the target activity.

Before deciding whether or not to grant authorisation, the Authorising Officer shall also undertake a risk assessment of the CHIS (and of foreseeable consequences to others) in performing the proposed activity in order to protect both the safety and welfare of the CHIS and to safeguard the Council's position from claims.

The ongoing security and welfare of the CHIS, after the cancellation of the authorisation, should also be considered from the start.

Can a child be a covert human intelligence source?

A child or juvenile is a person under the age of 18. Special safeguards apply to an authorisation for the use or conduct of juvenile sources where the CHIS would be a child. A child under 16 years of age must not be authorised to give information against their parents. If a person under the age of 18 is to be used as a CHIS then an Article 5 risk assessment is required (Article 5 of The Regulation of Investigatory Powers (Juveniles) Order 2000 SI 2000/2793).

Authorisations should not be granted unless:

• a risk assessment has been undertaken as part of the application, covering the physical dangers and the psychological aspects of the use of the child
• the risk assessment has been considered by the Authorising Officer and he or she is satisfied that any risks identified in it have been properly explained
• the Authorising Officer has given particular consideration as to whether the child is to be asked to get information from a relative, guardian or any other person who has for the time being taken responsibility for the welfare of the child. A child under the age of 16 must never be asked to give information against his or her parents

Authorisations should not be granted unless the Authorising Officer believes that management arrangements exist which will ensure that there will be at all times a person who has responsibility for ensuring that an appropriate adult will be present between any meetings between Council representatives and a CHIS under 16 years of age.

Authorisations for the use of a child as a CHIS can be granted only by the Chief Executive or in their absence, a Chief Officer.

What about vulnerable persons such as those who are mentally ill, infirm or have learning disabilities?

A Vulnerable Individual is a person who is or may be in need of community care services by reason of mental or other disability, age or illness and who is or may be unable to take care of himself or herself, or unable to protect himself or herself against significant harm or exploitation.

Only in the most exceptional circumstances should a vulnerable person be authorised to act as a CHIS and the authorisation must be given by the Chief Executive or in their absence, a Chief Officer.

What type of things can a CHIS be asked to do?

Once authorised a CHIS could be asked to obtain information, to provide access to information or to otherwise act incidentally for the benefit of the Council in the performance of its statutory enforcement and regulatory functions. The CHIS might be asked to wear or carry a surveillance device. No additional authorisation is required if that person is invited into a private vehicle or residential premises.

A CHIS must not be asked to install a surveillance device nor intercept post or any other communications including those sent by telephone or email.

A CHIS must not be asked to do anything or not to do something which would involve the commission of a criminal offence by the CHIS, for example, a CHIS must not be asked to steal a document to get information.

What is confidential material?

Confidential material is anything:

• which is subject to legal privilege, for example, communications between legal advisers and their clients
• which is confidential personal information, for example information about someone's health or spiritual counselling or other assistance given or to be given to them
• which is confidential journalistic material (this includes related communications), that is, material obtained or acquired for the purposes of journalism and subject to an undertaking to hold in confidence

Are there any special rules for confidential material?

Additional safeguards are required where the use or conduct of a CHIS may result in acquiring knowledge of confidential material. The following requirements apply:

• In the case of CHIS authorisations for vulnerable people or juveniles, or where surveillance involves communications subject to legal privilege, confidential personal information or confidential journalistic material, authorisation MUST be by the Chief Executive, or in his or her absence, a Chief Officer.
• the application for authorisation must include an assessment of how likely it is that confidential material will be acquired
• those involved in the operation must be advised that confidential material may be involved
• confidential material should not be retained or copied unless there is a clear relevant and specific purpose
• confidential material should only be disclosed to those who have a clear and substantial need to know and for a specific and proper purpose
• confidential material must be clearly marked or accompanied by a clear warning of its confidentiality
• confidential material should be destroyed as soon as its retention is no longer necessary

What records must be kept?

The following records must be kept:

• full details of the CHIS and the management arrangements
• the authorisation granted and, where relevant, renewed
• any authorisation which was granted or renewed orally (in an urgent case) and the reason why the case was considered urgent
• any risk assessment made in relation to the CHIS
• the circumstances in which tasks were given to the CHIS
• the value of the source to the Council
• the reason why the Authorising Officer, when renewing an authorisation, considered it necessary to do so
• the results of any reviews of the authorisation
• the reasons, if any, for not renewing an authorisation
• the reasons for cancelling an authorisation

What information should be kept about the CHIS?

The following information should be available:

• the identity of the CHIS
• the identity or identities used by the CHIS, where known
• the means used within the Council of referring to the CHIS
• any significant information connected with the security and welfare of the CHIS
• any confirmation made by an Authorising Officer granting or renewing an authorisation for the conduct or use of a source, that the security and welfare of the CHIS has been considered and that any identified risks to the security and welfare of the CHIS have been properly explained to and understood by the CHIS
• the date when, and the circumstances in which the CHIS was recruited
• the authority for the related investigation or operation
• the identities of the Controller, the Handler and the person monitoring the records of the CHIS
• the period for which those responsibilities have been discharged by those persons
• the tasks that are given to the CHIS and the demands made of them in relation to their activities as a CHIS
• all contacts or communications between the CHIS and the Council or where the CHIS is a Council Officer, the Handler and the Controller
• the information obtained by the Council by the conduct or use of the CHIS
• in the case of a CHIS who is not an Officer of the Council, every payment, benefit or reward or every offer of a payment, benefit or reward that is made or provided by or on behalf of the Council in respect of the CHISs activities for the benefit of the Council

Who may see the records?

Only those people who need to know, otherwise the records are strictly confidential.

Who keeps the records?

The detailed records outlined above will be kept by the person nominated as the record keeper for the CHIS. A central register will be kept by the City Solicitor.

Who is responsible for overseeing compliance with the 2000 Act?

Under the 2000 Act, the Chief Surveillance Commissioner and Surveillance Commissioners, together with the Assistant Surveillance Commissioners, have been appointed to provide independent oversight of the use of the powers contained in Part II of the Act. They will inspect the Council from time to time to ensure that the Council is complying with the Act. In addition, the 2000 Act establishes an independent tribunal. This tribunal has full powers to investigate and decide any case where a person complains about the conduct of the Council in exercising its powers which are covered by the Act.

What reference documents are there?

The Council and those persons acting under Part II of the 2000 Act must have regard to the Codes of Practice issued under the Act.

The Council has prepared 4 specific forms for use by officers applying for authority to use a CHIS. They are based upon the prescribed forms issued by the Home Office.

Copies of these forms will be available on the intranet site.

Where fraud or corruption is suspected, then regard should be had to the Councils anti-fraud and corruption strategy.

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