A. GENERAL INTRODUCTION
1. This Procedural Guide along with the statutory Codes of Practice published by the Secretary of State must be readily available at Wigan Borough Council, Legal and Risk Division, Town Hall (hereinafter referred to as WBC) for consultation and reference by Investigating Officers, Members of the Council, the public and/or their representatives. These documents can be obtained from the Head of Service - Legal and Risk, Town Hall, Library Street, Wigan WN1 1YN
2. This Procedural Guide applies to any covert surveillance, use of Covert Human Intelligence Sources (‘CHISs’) or the accessing of communications data by WBC employees whose duties include investigation under properly delegated powers and by private investigators engaged to act as agents by those WBC employees.
3. This Procedural Guide has been drafted for Wigan Borough Council and has regard to the provisions of the Codes of Practice issued by the Secretary of State under Section 71 of the Regulation of Investigatory Powers Act 2000 (‘RIPA’). It should be noted that Section 72(1) RIPA states that a person exercising or performing any power or duty in relation to which provision may be made by a code of practice under Section 71 shall, in doing so, have regard to the provisions (so far as they are applicable) of every code of practice for the time being in force under that section. This Guide has been compiled for Wigan Borough Council only omitting elements which are not applicable to this Council. For example, there is no power of authorisation for ‘intrusive surveillance’ (see definition B7 in this Guide) so references to such authorisations have been omitted.
4. All covert surveillance, use of CHISs or the accessing of communications data should be authorised or conducted in accordance with this Procedural Guide and should be carried out only for the purpose of preventing or detecting crime or of preventing disorder which the Council is legally required or legally empowered to investigate as part of its functions.
5. Covert surveillance, the use of CHISs and the accessing of communications data should only be used by WBC where it believes it is "necessary" and "proportionate" (see definitions section below)
6. Before authorising covert surveillance Authorising Officers should take into account the risk of intrusion into the privacy of persons other than the specified subject of the surveillance (collateral intrusion) and take measures wherever practicable to avoid it.
7. As far as surveillance is concerned this Procedural Guide is only concerned with "directed" surveillance (see definitions below). This Authority must not carry out "intrusive surveillance" unless the Police are involved and the surveillance is conducted in accordance with their authorisation procedure. All surveillance operations in which the surveillance is likely to be intrusive need prior authorisation by the Chief Constable of Police and can only be carried out in cases where it is for the prevention and detection of "serious crime" (see B13 in the Definitions section below).
8. Covert surveillance that is carried out by way of an immediate response to events, such that it is not reasonably practicable to obtain a RIPA authorisation, does not require a directed surveillance authorisation under RIPA (section 26(2)(c) RIPA). Otherwise, there should be no situation in which an Investigating Officer has to engage in covert surveillance, use a CHIS or access communications data without obtaining authorisation. Authorisation can be obtained orally in urgent cases. However, it should be noted that Section 80 of RIPA provides that not obtaining an authorisation would not make the actions of the Authority unlawful under RIPA. Nevertheless, having an authorisation makes it less likely that the covert surveillance, use of CHIS or the accessing of communications data could be held to breach the Human Rights Act 1998, or be challenged in the Courts because it then becomes “lawful for all purposes” (Section 27(1) RIPA).
9. For the avoidance of doubt surveillance notified to the subject is not covert and does not fall within the provisions of this Procedural Guide.
10. Surveillance will not be undertaken from, for instance a property next door or nearby the subject’s property, unless the person who occupies the premises from which the surveillance is to take place has been notified and their consent obtained.
B. DEFINITIONS
1. Authorising Officer
At or higher than "An Assistant Chief Officer, Assistant Head of Service, Service Manager or equivalent" (Regulation of Investigatory Powers (Directed Surveillance and Covert Human Intelligence Sources) Order 2003). Therefore, for the purposes of this Procedural Guide the Authorising Officer shall be the person appointed by the Council’s Chief Executive at any particular time to hold such a position within the different departments concerned. If knowledge of confidential information is likely to be acquired, or a person under the age of 18 or a vulnerable individual is to be used as a covert human intelligence source, then the authorising officer must be the Council’s Chief Executive or (in his/her absence) the Deputy Chief Executive.
2. Communications Data
This includes information relating to the use of a postal service or telecommunication system but does not include the contents of the communication itself, contents of e-mails or interactions with websites. In this guide “data”, in relation to a postal item, means anything written on the outside of the item.
3. Confidential Material
This has the same meaning as is given to it in sections 98-100 of the Police Act 1997.
It consists of matters subject to legal privilege, confidential personal information, or confidential journalistic material:
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matters subject to legal privilege includes both oral and written communications between a professional legal adviser and his or her client or any person representing his or her client, made in connection with the giving of legal advice to the client or in contemplation of legal proceedings and for the purposes of such proceedings, as well as items enclosed with or referred to in such communications. Communications and items held with the intention of furthering a criminal purpose are not matters subject to legal privilege.
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confidential personal information is information held in confidence concerning an individual (whether living or dead) who can be identified from it, and relating:
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either to his or her physical or mental health; or
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to spiritual counselling or other assistance given or to be given, and
which a person has acquired or created in the course of any trade, business, profession or other occupation, or for the purposes of any paid or unpaid office. It includes both oral and written information and also communications as a result of which personal information is acquired or created. Information is held in confidence if:
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it is held subject to an express or implied undertaking to hold it in confidence; or
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it is subject to a restriction of disclosure or an obligation of secrecy contained in existing or future legislation.
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Confidential journalistic material includes material acquired or created for the purposes of journalism and held subject to an undertaking to hold it in confidence, as well as communications resulting in information being acquired for the purposes of journalism and held subject to such an undertaking.
4. Covert
This is defined in Section 26(9)(a) of the RIPA as follows:-
"Surveillance is covert if and only if it is carried out in a manner that is calculated to ensure that the persons who are subject to the surveillance are unaware that it is or may be taking place".
5. Covert Human Intelligence Source ("CHIS")
This is defined in S26(8) RIPA as follows:-
"...a person is a CHIS if -
(a) he establishes or maintains a personal or other relationship with a person for the covert purpose of facilitating the doing of anything falling within paragraph (b) or (c);
(b) he covertly uses such a relationship to obtain information or to provide access to any information to another person; or
(c) he covertly discloses information obtained by the use of such a relationship or as a consequence of the existence of such a relationship"
(RIPA also says that references to the use of a CHIS include inducing asking or assessing a person to engage in the conduct of a CHIS or to obtain information by means of the conduct of a CHIS).
Therefore, it is essentially the use of a person to establish a relationship with a subject to obtain information and disclosing that information to another. It covers the use of undercover officers and it can be argued that it covers cases where an officer poses as a customer in a shop when making a test purchase. It also covers the use of 'informants' who may be close to a subject for the purposes of obtaining information about crimes etc.
6. Directed Surveillance
This is defined in Section 26(2) of the RIPA which says surveillance is directed if it is covert but not intrusive and is undertaken -
"(a) for the purposes of a specific investigation or specific operation;
(b) in such a manner as is likely to result in the obtaining of private information about a person (whether or not one specifically identified for the purposes of the investigation or operation); and
(c) otherwise than by way of an immediate response to events or circumstances the nature of which is such that it would not be reasonably practicable for an authorisation under Part II of the RIPA to be sought for the carrying out of surveillance".
Therefore, by way of a summary, it is covert surveillance which is planned in advance to further a particular investigation and which is likely to result in the obtaining of information about a person's private or family life.
7. Intrusive Surveillance
Section 26(3) states that intrusive surveillance is covert surveillance that-
"(a) is carried out in relation to anything taking place on any residential premises or in any private vehicle; and
(b) involves the presence of an individual on the premises or in the vehicle or is carried out by means of a surveillance device".
However, Section 26(5) says that surveillance which
"(i) is carried out by means of a surveillance device in relation to anything taking place on any residential premises or in any private vehicle; but
(ii) is carried out without that device being present on the premises or in the vehicle is NOT intrusive,
unless the device is such that it consistently provides information of the same quality and detail as might be expected to be obtained from a device actually present on the premises or in the vehicle."
Therefore, to be intrusive it has to take place actually on the residential premises or in the private vehicle except (in both cases) if a surveillance device is used. Surveillance using a device which is not on the private premises or in a private vehicle can still be "intrusive" if it consistently provides information of the same quality and detail as might be expected from a device placed on the private premises or in the private vehicle. Attaching or placing a tracking device onto, or remotely obtaining information about the location of, property without the consent of the owner and when the property is not owned by the Council is interference with property and will require a property interference authorisation from the Police or the Office of Fair Trading, as appropriate. However, a property interference authorisation will not be required in relation to a tracking device or surveillance equipment placed on a Council vehicle to obtain information about its location.
8. Necessary
In order for an authorising Officer to decide whether an authorisation is necessary it must fall within the ground set out in Section 28(3)(b) of the RIPA. That is it must be for the purpose of preventing or detecting crime or of preventing disorder and the authorising officer must be satisfied that it is necessary to use covert surveillance in the investigation.
9. Private Information
This is defined in RIPA as including, "in relation to a person", any information relating to his or her private or family life and it may also include aspects of business and professional life.
10. Private Vehicle
This is defined in the Act as any vehicle used primarily for the private purposes of the person who owns it or of a person otherwise having the right to use it (from the latter, paying passengers are excluded). From the point of view of a paying passenger therefore, the vehicle is not private.
11. Proportionate
There is no strict definition but in order for surveillance or use of CHIS to be proportionate, it must not be used in cases where other more open methods of investigation will suffice. Perhaps a short period of surveillance could be justified on the grounds that it would be a quicker and easier way of obtaining evidence. Such methods must also only be used in cases where they are likely to result in the gathering of cogent evidence. The subject's situation and any known history should also be taken into account and the seriousness of the offence. It is about balancing the seriousness of the crime being investigated and the threat to the general public against the interference with the privacy of the individual concerned. The authorising officer should ask him/herself:
(a) Is the use of covert surveillance proportionate to the mischief being investigated?
(b) Is the covert surveillance proportionate to the intrusion on the target and others who may be caught by it?
(c) Are there no other overt means of obtaining the information that is being sought?
12. Residential Premises
Section 48 subsection (1) provides that "residential premises" mean (subject to subsection (7)(b)) so much of any premises as is for the time being occupied or used by any person, however temporarily, for residential purposes or otherwise as living accommodation (including hotel or prison accommodation that is so occupied or used). RIPA states that the words "residential premises" do not include a reference to so much of any premises as constitutes any common area to which the resident has access in connection with his use or occupation of any accommodation (Section 48(7)(b) RIPA). Therefore, surveillance from a common area is technically not intrusive, but there may be a higher risk of obtaining private information about someone so this must be considered when deciding whether or not to authorise the surveillance. For example, the entrance hall, stairs and lift in a block of flats is not counted as residential premises and this is important when assessing whether surveillance is intrusive or not.
13. Serious Crime
This is defined in section 81 subsection (3) of RIPA as crime that (a) the offence or one of the offences that is or would be constituted by the conduct is an offence for which a person who had attained the age of 21 and has no previous convictions could reasonably be expected to be sentenced to an imprisonment for a term of three years or more. (b) The conduct involves the use of violence, results in substantial financial gain or is conduct by a large number of persons in pursuit of a common purpose.
14. Subjects
A member of the public or group thereof in respect of whom surveillance, the use of a CHIS or the accessing of communications data has been authorised and such observed contacts of that individual or group of individuals as may come to notice during the course of the authorised surveillance, the use of a CHIS or the or accessing of communications data.
15. Surveillance
This is defined in the Regulation of Investigatory Powers Act 2000 (i.e. the RIPA) as including:-
(a) monitoring, observing or listening to persons, their movements, their conversations or their other activities or communications;
(b) recording anything monitored, observed or listened to in the course of surveillance; and
(c) surveillance by or with the assistance of a surveillance device.
16. Surveillance Device
This is defined in Section 48(1) of RIPA as meaning "any apparatus designed or adapted for use in surveillance".
This therefore includes cameras, video cameras, listening and recording devices etc.
C. AUTHORISATIONS
1. Application
The whole of this section applies to directed surveillance (see definition B6 above) and the use of a CHIS (see definition B5 above). When completing an application for directed surveillance or use of a CHIS, and when completing review, renewal and cancellation forms, regard should be had to the Council’s Practical Guide to Completing the Standard Home Office Forms for Undertaking Surveillance.
2. Authorisations
Authorisations or renewals of authorisations must be given by the Authorising Officer (see definition B1 above) in writing except in urgent cases when it can be done orally. The Authorising Officer should forward a scanned copy of the hand signed authorisation by email immediately to the Head of Service - Legal and Risk (for the attention of Peter Hassett (or in his absence Sharon Crippin)). The Head of Servic - Legal and Risk (ref Peter Hassett/Sharon Crippin) will inform the Authorising Officer of the unique reference number (URN) that has been allocated to that authorisation. The URN must be included on all future review, renewal or cancellation forms in relation to that authorisation.
3. Requirements
Before giving authorisation for surveillance, the use of a CHIS or the accessing of communications data the Authorising Officer must be satisfied that
(a) it is necessary for the purpose of preventing or detecting crime or of preventing disorder. The written authorisation should specify the objectives of the activity in factual terms, for example, to gather evidence. The type of crime must also be specified and what facts led the Authorising Officer to believe that the activity will achieve its objectives;
(b) it is proportionate (see definition B11 above) to the seriousness of the crime or the matter being investigated and the history and character of the subject concerned.
4. Urgent Cases
An authorisation may be granted or reviewed orally in any urgent case. The reasons for the urgency must be given and recorded.
5. Time Limits
Oral authorisations or renewals last 72 hours beginning with the time when the authorisation or renewal takes effect and written authorisations or renewals last three months beginning with the day upon which the authorisation or renewal takes effect. The length of time for surveillance or use of a CHIS to continue should be taken into account when deciding if it is proportionate or not. Authorisation for the use of directed surveillance shall not last for more than 3 months, unless the authorisation has been renewed. Authorisation for the use and conduct of a CHIS last for 12 months (unless the CHIS is under the age of 18 years, or is a vulnerable individual, in which case the authorisation shall last for 1 month). Authorisations/notices in relation to the accessing of communications data shall not last for more than 1 month.
6. Authorising Officer
The Authorising Officer of the necessary standing in relation to the surveillance, the use of a CHIS or the accessing of communications data must be appointed by the Chief Executive and the names of such officers must be kept on records held by the Head of Service - Legal and Risk.
7. Regular Reviews
Regular reviews of authorisations must be undertaken to assess the need for the surveillance to continue. The Authorising Officer must determine how often a review should take place. Reviews should be undertaken by an authorising officer as frequently as s/he considers necessary and practicable. Bearing in mind the intrusive nature of surveillance the presumption must be in favour of early reviews. In any event a review must take place no later than one month after the date of the authorisation/renewal or last review.
8. Cancellation
The Authorising Officer must cancel an authorisation as soon as he or she believes that the activity is no longer necessary or proportionate. Upon cancellation all the original documentation in relation to the authorisation must be forwarded by secure means to the Head of Service - Legal and Risk (reference Peter Hassett (or in his absence Sharon Crippin)).
9. Contents of Authorisation
The written authorisation should specify -
(1) names (where known) or descriptions of the subjects and any known history and character thereof;
(2) location of the subject and/or surveillance and (if relevant) the place where CHIS is to be located;
(3) the type of surveillance device or equipment to be used;
(4) the type of activities, numbers and names of officers who will be the CHISs (if relevant);
(5) that the surveillance is necessary for the purpose of preventing or detecting crime or of preventing disorder;
(6) that it is proportionate (see definition B11 above) i.e. specifying:
(a) the objectives of the surveillance, the use of a CHIS or the accessing of communications data;
(b) the crime or wrong-being investigated (indicate the type of breach);
(c) why surveillance, the use of a CHIS or the accessing of communications data should be used in preference to other methods of investigation, for example it may be that it would be a means of obtaining the best evidence or the evidence could be obtained more quickly by surveillance, the use of a CHIS or the accessing of communications data than by other means;
(d) why it would be more practicable;
(7) The objectives of the activities;
(8) The name and nature of the investigation or operation and what makes the Authorising Officer believe surveillance, the use of a CHIS or the accessing of communications data will achieve the objectives referred to;
(9) The length of time which should be proportionate to the wrong being investigated; and
(10) The risk of information relating to third parties’ private and family life being obtained. This is known as ‘collateral intrusion’.
(11) The likelihood of acquiring any confidential/religious material.
10. Moving Subjects
Authorisations should cover all known or reasonably foreseeable eventualities. Accordingly if a subject is likely to move the authorisation should specify this. If a subject is accompanied by, or living with, another person then the authorisation should include that other person if necessary.
11. Covert Human Intelligence Sources (CHIS's)
In addition to the above it is necessary under S29(5) RIPA that there are in force such arrangements as are necessary for ensuring:
(a) that there will at all times be a person holding an office, rank or position with the relevant investigatory authority who will have day to day responsibility for dealing with the CHIS on behalf of that authority and for the CHIS's security and welfare;
(b) that there will at all times be another person holding an office, rank or position with the relevant investigating authority who will have general oversight of the use made of the CHIS;
(c) that there will at all times be a person holding an office, rank or position with the relevant investigating authority who will have responsibility for maintaining a record of the use made of the CHIS;
(d) that the records relating to the CHIS that are maintained by the relevant investigating authority will always contain particulars of all such matters (if any) as may be specified for the purposes of this paragraph in regulations made by the Secretary of State; and
(e) that the records maintained by the relevant investigating authority that disclose the identity of the CHIS will not be available to persons except to the extent that there is a need for access to them to be made available to those persons.
In other words there must be an officer given direct day to day management of the CHIS to look after his/her needs and another officer in overall control of the use of the CHIS. A record must be made by a specified person of the use of the CHIS. Regulations have been made giving details of the type of particulars needed to be recorded. (See 12 below for details). The identity of CHIS's is not to be disclosed unless there is a need to do so. NB - There is no need for 3 different officers. The person responsible for maintaining a record should be an authorising officer.
12. Records Relating to the CHIS
These must contain the following by reason of the Regulation of Investigatory Powers (Source Records) Regulations 2000:-
(a) the identity of the CHIS;
(b) the identity, where known, used by the CHIS (ie his or her 'alias');
(c) any relevant investigating authority other than the authority maintaining the records;
(d) the means by which the CHIS is referred to within each relevant investigating authority (ie his or her 'code name');
(e) any other significant information connected with the security and welfare of the CHIS;
(f) any confirmation made by a person granting or renewing an authorisation for the conduct or use of a CHIS that the information in paragraph (d) has been considered and that any identified risks to the security and welfare of the CHIS(s) have where appropriate been properly explained to and understood by the CHIS(s);
(g) the date when, and the circumstances in which, the CHIS was recruited; (or if already employed by WBC and allocated this task);
(h) the identities of the authorising officer and the applicant;
(i) the periods during which those persons have discharged those responsibilities;
(j) the tasks given to the CHIS and the demands made of him or her in relation to their activities as a CHIS;
(k) all contacts or communications between the CHIS and a person acting on behalf of any relevant investigating authority;
(l) the information obtained by each relevant investigating authority by the conduct and use of the CHIS;
(m) any dissemination by that authority of information obtained in that way; and
(n) in the case of a CHIS who is not an under-cover operative, every payment, benefit or reward and every offer of a payment, benefit or reward that is made or provided by or on behalf of any relevant investigating authority in respect of the CHIS activities for the benefit of that or any other investigating authority.
Therefore, the officer in charge of maintaining a record of the use of each CHIS should record all these details. The way these records are kept is designed to try to keep the CHIS safe from discovery by the subjects and safe from any harm which could result from their disclosure and also to keep in the open any money or other benefits paid to a CHIS who is not an employee officer of an authorising body.
13. Accessing Communications Data
To obtain authorisation to access communications data the applicant officer is required to make the application through the Single Point of Contact (SPoC) at the National Anti-Fraud Network (NAFN) through their secure web based system. Applicant officers and authorising officers should have regard to NAFN’s User Guide and Procedures before making, or authorising, an application.
D. RECORDS
1.
A copy of all written authorisations, renewals, reviews and cancellations must be forwarded by email immediately to the Head of Service - Legal and Risk, Town Hall, Library Street, Wigan WN1 1YN (reference Peter Hassett (or in his absence Sharon Crippin)).
A copy of each form should be placed on your file.
2. All written authorisations, renewals, reviews and cancellations should be kept for a period of 5 years after the conclusion of any Court proceedings arising for which the surveillance, use of the CHIS or accessing of communications data was relevant.
3. Oral authorisations should be recorded as soon as reasonably practicable after being granted and kept in as D1 above.
4. All information obtained during surveillance should be recorded, in a criminal investigation by means of a surveillance log. This is a form which can be filled in which gives an account of the events observed and conversations heard at particular times which are recorded on the form or log. These should be kept as in D1 above.
5. All reviews of authorisations must be done in writing and kept as in D1 above as must grounds for withdrawal of authorisation or refusal to renew.
6. At no time must any of the recorded information be disclosed or used except for the purposes for which it was gathered at the time and for use in any future civil or criminal proceedings brought by or against WBC.
7. All information obtained by the CHIS and by the officer responsible for recording the use of the CHIS should be recorded by means of a daily log similar to the surveillance log referred to in 4 above.
8. Such records referred to in 7. above which also reveal the name(s) of the CHIS should only be disclosed if legally necessary or if desired by any Court.
E. COMPLAINTS
Any complaints about any powers covered by this Procedural Guide can either be made under WBC's existing internal complaints system or to the Investigatory Powers Tribunal set up under S65 RIPA 2000.
F. FORMS
All forms used to apply for, review, renew or cancel authorisations under RIPA shall be in the form approved by the Home Office.
Regard should be had to the Council’s Practical Guide to Completing the Standard Home Office Forms for Undertaking Surveillance when the forms are being completed.
