Covert Surveillance Policy and Procedure

90. Where a shared service is intending to conduct surveillance on behalf of one of its constituent authorities, that authority’s procedures will be followed, including obtaining authorisation from the authority’s appropriate Authorising Officers. The shared service will be responsible for managing all operational aspects including the coordination and administration of authorisations. The designated RIPA contact or coordinator for the relevant authority will however serve as the primary point of contact to ensure proper record-keeping and compliance with the Policy is maintained.

91. The authorisation procedures are intended to ensure that any interference with privacy is subject to rigorous scrutiny. However, they also provide an opportunity for further discussion and refinement of the methods to be used in a particular investigation.

92. Applications for authorisation for Directed Surveillance must be made on the Application for use of directed surveillance form using the link in Appendix D

93. Applications for authorisation for CHIS must be made on the Application for the use of covert human intelligence sources (CHIS) form using the link in Appendix D.

94. The written application must describe:

• the reason why the authorisation is necessary in the particular case for the prevention or detection of crime or the prevention of disorder
• the purpose of the surveillance
• the nature of the surveillance
• the identities, where known, of those to be subject to the surveillance
• an explanation of the information which it is desired to obtain as a result of the surveillance
• the nature and extent of any likely collateral intrusion and why it is justified
• the nature and extent of any likely confidential information
• the level of authorisation needed
• the reason why the surveillance is considered proportionate to what it seeks to achieve
• a subsequent record of whether authority was given or refused, by whom and on what date.

95. Prior to submission to the Authorising Officer, the RIPA Co-ordinator must undertake a quality assurance review of the application to ensure that it is complete, accurately records the facts relied upon, addresses the legal tests of necessity and proportionality, and contains sufficient information to enable the Authorising Officer to make an informed decision. The RIPA Co-ordinator may provide advice and request further information or clarification from the applicant where necessary but must not influence or direct the Authorising Officer's decision.

96. The Authorising Officer must satisfy him or herself that the particular surveillance requested is necessary and proportionate to the particular aim pursued in the course of the investigation. It is ultimately for the Authorising Officer to decide whether or not the proposed surveillance is necessary and proportionate and whether the statutory requirements have been met.

The Authorising Officer must personally consider the application and record within the authorisation form a clear rationale demonstrating their consideration of:

• the purpose of the surveillance;
• why the surveillance is necessary;
• who is the surveillance directed against;
• where and when it will take place;
• what surveillance activity/equipment is sanctioned;
• how it is to be achieved;
• the statutory ground(s) relied upon;
• why the proposed activity is proportionate to the aim pursued;
• any less intrusive options considered and why they would not achieve the objective; and
• any collateral intrusion and the measures proposed to minimise it.

And in relation to applications for a CHIS the following should also be considered:

• the nature of the relationship to be established or maintained and why it is necessary to do so;
• the benefits expected to be obtained from the use or conduct of the CHIS and how that supports the statutory purpose relied upon;
• the risk assessment covering the safety, security and welfare of the CHIS including any foreseeable risks arising from the use of the CHIS and measures in place to mitigate them;
• whether the CHIS is a juvenile or vulnerable individual and if applicable why their use is justified and what additional safeguards apply;
• the arrangements for the management of the CHIS including identification of the handler and controller and that these are appropriate;
• wider community impact or sensitivity considerations.

97. The RIPA Co-ordinator must review the Authorising Officer's written rationale before submission to the Magistrates' Court to ensure that the reasons recorded adequately evidence the Authorising Officer's consideration of the relevant legal tests and comply with the requirements of the applicable Codes of Practice. Where the rationale is insufficiently detailed, the RIPA Co-ordinator may request that the Authorising Officer provide further reasons or clarification before the application progresses.

98. If the application is granted, the Authorising Officer must record the reasons for authorisation as set out above. If the application is refused, the Authorising Officer must record the reasons for refusal in sufficient detail to demonstrate why the statutory requirements were not satisfied.

99. The RIPA Co-ordinator must maintain oversight of the quality and completeness of authorisation records and, where appropriate, provide feedback, guidance and training to applicants and Authorising Officers to support compliance and continuous improvement.

100. The current Authorising Officers are set out in the Surveillance Personnel List. The Service Director Legal and Democratic Services will revise the Personnel List as and when necessary.

101. Once the above authorisation process has been completed and a provisional authorisation granted, the Council must apply to the Magistrates Court for an Order approving the grant or renewal of an authorisation.

No activity permitted by the authorisation granted by the Authorising Officer may be undertaken until the approval of the Magistrates’ Court to that authorisation has been obtained.

102. A written authorisation for directed surveillance will cease to have effect (unless renewed) at the end of a period of three months.

103. A written authorisation for the use of a CHIS granted by an Authorising Officer will cease to have effect (unless renewed) at the end of a period of twelve months from its authorisation (or four months where the source is a juvenile).

104. Once the exercise for which authorisation has been granted has been carried out the Officer must complete a cancellation notice (Cancellation of use of directed surveillance form or Cancellation of covert human intelligence sources (CHIS) using the link in Appendix D) and submit this to the Authorising Officer for signature.

105. A written authorisation should be reviewed monthly to assess whether or not there is a need for surveillance to continue. The Authorising Officer must be satisfied that the continuation of the authorisation is justified. The Authorising Officer must record the reasons for concluding that an authorisation is justified to continue as approved or, alternatively, must record the reasons for concluding that the authorisation should not be continued. The review should be conducted using the form Review of use of directed surveillance or form Reviewing the use of covert human intelligence sources (CHIS) using the link in Appendix D.

106. At any time before an authorisation would cease to have effect, the Investigating Officer may apply to the Authorising Officer to renew the authorisation. The Authorising Officer must be satisfied that the renewal would be proportionate. The authorisation of directed surveillance is subject again to Magistrates approval, and may be renewed for a further 3 months, taking effect at the time or on the day on which the authorisation would otherwise have ceased to have effect. The Authorising Officer must record the reasons for renewal or refusal. An application for renewal must be made using the form Renewal form for directed surveillance or form Renewal of authorisation to use covert human intelligence sources from the link in Appendix D.

107. All applications for a written renewal should record:

• whether this is the first renewal or every occasion on which the authorisation has been renewed previously
• any significant changes since the original application or last renewal or last review, as appropriate
• the reasons why continued surveillance is necessary
• the content and value to the investigation of information so far obtained by the surveillance
• the results of regular reviews of the investigation

108. Reviews and renewal applications for the use of a CHIS should also include the use made of the source during the period authorised, the tasks given to the source and the information obtained from the source.

109. An application for renewal should not be made until shortly before the authorisation period is drawing to an end.

110. Authorisations may be renewed more than once, provided they meet the criteria for authorisation.

111. During a review the authorising officer may amend the authorisation or cancel it, if the criteria for its initial authorisation are no longer met. As soon as the decision is taken to discontinue surveillance, all those involved in the surveillance must be notified.

112. Copies of all signed forms of authorisation, renewals and cancellations should be filed on the case file and the originals should be sent to the RIPA Co-ordinating Officer within 5 working days of such authorisation renewal or cancellation. Forms will be kept for 5 years following the end of an authorisation or relevant court proceedings.

113. The RIPA Co-ordinating Officer will maintain a database of applications containing the following information:

• the type of authorisation
• the date the authorisation was given
• the name and rank of the authorising officer
• the unique reference number of the investigation or operation
• the title of the investigation or operation including a brief description and the names of subjects if known
• details of attendances at Magistrates Court to include the date of attendances at court, the determining magistrate, the decision of the court and the time and date of that decision
• the dates of any reviews
• the date of any renewals and the name and rank of the officer authorising renewal
• whether the investigation was likely to result in obtaining confidential or privileged information and whether any such information was obtained
• whether the authorisation was granted by an individual directly involved in the investigation
• the date the authorisation was cancelled
• Where any application is refused, the grounds for refusal as given by the Authorising Officer or determining magistrate.

114. The RIPA Co-ordinating Officer will further maintain copies of all applications (whether or not authorisation was given) with supplementary documentation; a record of the period over which surveillance has taken place; the frequency of reviews; the result of any reviews; copies of any renewals of authorisation; the date and time of any instructions given by the authorising officer.

115. Material produced as a result of directed surveillance may be used in criminal proceedings and must be retained only for so long as necessary.

116. All material obtained as a result of covert surveillance will be recorded and logged in the Investigating Officer’s notebook in accordance with the usual procedures for the logging of evidence.

117. Material obtained using covert surveillance should be disposed of in accordance with the Criminal Procedures and Investigations Act 1996. Public authorities must ensure that arrangements are in place for the secure handling, storage and destruction of material obtained through the use of directed or intrusive surveillance. Authorising officers must also ensure compliance with the requirements of the Data Protection Act 2018 and UK General Data Protection Regulation.