Directed covert surveillance

Operational Policy and Guidance on Directed Covert Surveillance and Authorisation under the Regulation of Investigatory Powers Act 2000.

• What is covert surveillance?
• When might the Council undertake covert surveillance?
• What safeguards must the Council observe before undertaking surveillance of any sort?
• What does the Regulation of Investigatory Powers Act 2000 say?
• What types of surveillance are covered?
• Who in the Council may authorise directed surveillance?
• 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 records must be kept?
• Who keeps the record?
• Who is responsible for overseeing compliance with the 2000 Act?
• What reference documents are there?

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What is covert surveillance?

Covert surveillance is surveillance which is carried out so that the people who are being observed or listened to or monitored are unaware that it is or may be taking place.

When might the Council undertake covert surveillance?

The Council is involved in many everyday functions of law enforcement. For example, Trading Standards officers might covertly observe traders as part of their enforcement function. The Councils Internal Auditors might undertake observations of staff to see if there is an abuse of someones official position, eg stealing money.

What safeguards must the Council observe before undertaking surveillance of any sort?

• Firstly, the Council has to be satisfied that the surveillance is undertaken in connection with a statutory function with which the Council is charged
• Secondly, if the surveillance is likely to intrude upon someones human rights, for example the right to respect for private and family life, home and correspondence, that such interference can be justified legally. Advice on the Human Rights Act is available from the Councils legal officers
• Thirdly, that the surveillance is properly authorised and 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 to be 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 surveillance 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

What types of surveillance are covered?

The 2000 Act covers most types of surveillance, including the interception of communications. For the most part the Council will only be involved in directed surveillance, that is to say, covert surveillance which is undertaken in relation to a specific investigation which is likely to result in the obtaining of private information about a person. If the surveillance involves anything taking place in residential premises or a vehicle and involves the presence of a person or surveillance device on or in the premises or vehicle, then the Act imposes very strict limitations. Such surveillance is then referred to as intrusive surveillance.

This policy and guidance primarily refers to directed surveillance. If the surveillance you propose is intrusive surveillance you must seek legal advice from the Councils legal officers. No officer of the Council is authorised to grant an authorisation for Intrusive Surveillance.

The interception of communications sent by post or by means of public telecommunication systems, or private telecommunication systems attached to the public network, is dealt with under Part 1 of the 2000 Act and is covered in separate guidance.

Who in the Council may authorise directed surveillance?

Authorising officers may be at Operational Manager level or above. However the following are those who by virtue of their function will ordinarily act as Authorising Officers:

• The Chief Executive
• The City Treasurer
• The City Solicitor and Monitoring Officer
• All Heads of Service
• Legal Services Manager
• Principal Lawyers.

Ideally the Authorising Officer should not be responsible for authorising their own activities, ie those operations or investigations in which they are directly involved or for which they have direct responsibility.

How is an application for authorisation made?

An application for authorisation for directed surveillance must be in writing. It should specify:

• the action to be authorised
• the identities, where known, of those to be the subject of directed surveillance
• 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 directed surveillance 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
• the potential for collateral intrusion, that is to say, interference with the privacy of persons other than the subjects of the surveillance, and an assessment of the risk of such intrusion or interference
• the likelihood of acquiring any confidential material
• 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?

The written authorisation will cease to have effect (unless renewed) at the end of a period of 3 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. There must be regular reviews of any authorisations given and the records of these reviews must be kept. Reviews should be carried out on a monthly basis, or, if there is a serious risk of collateral intrusion or any risk of danger to officers or others, then the review must take place immediately.

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 three 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 surveillance
• the content and value to the investigation or operation of the information so far obtained by the surveillance
• an estimate of the length of time the surveillance 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 directed surveillance no longer meets the criteria for authorisation.

Regular reviews of authorisations should be undertaken to assess the need for the surveillance to continue. The results of a review should be recorded. Reviews should be more frequent where there may be collateral surveillance on persons other than those who are the subject of surveillance. As soon as a decision is taken to cease surveillance, an instruction must be given to those involved in the operation to stop listening, watching or recording the activities of the subject. The date on which that instruction is given should also be recorded.

What will the Authorising Officer have to consider?

Firstly, the Authorising Officer must be satisfied that the authorisation is necessary:

• in the interests of national security
• for the purpose of preventing and detecting crime, or preventing disorder
• in the interests of the economic well-being of the UK
• in the interests of public safety
• for the purposes of protecting public health
• for the purpose of assessing or collecting any tax, duty, levy or other imposition, contribution or charge payable to a Government Department
• for a purpose prescribed by statutory instrument

The Authorising Officer must also believe that the surveillance is proportionate to what it seeks to achieve.

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. This means that the action is 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 where surveillance is proposed that action 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.

What records must be kept?

The following records must be kept:

• a copy of the application for authorisation
• a copy of the authorisation
• a record of the period over which the surveillance is taking or has taken place (including any significant suspensions of coverage)
• a record of the result of periodic reviews of the authorisation
• a copy of any renewal of authorisation, together with the supporting documentation when the renewal was requested

Who keeps the record?

A central register of records will be kept by the City Solicitor and Monitoring Officer.

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 upon, any case where a person complains about the conduct of the Council in exercising its powers carrying out surveillance.

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 adapted four prescribed forms for use by officers applying for authority to carry out directed surveillance.

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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