Disclosure Manual: Chapter 26 - Dealing with Surveillance Authorisations

Surveillance is defined by section 48(2) of RIPA as including monitoring, observing, or listening to persons, their movements, conversations or other activities and communications.

Surveillance is covert if, and only if, it is carried out in a manner calculated to ensure that any persons who are subject to the surveillance are unaware that it is or may be taking place (section 26(9)(a)).

The question of whether an investigative technique requires a Directed Surveillance Authority (DSA) will depend on the purpose of accessing the data and what is being sought. Whilst researching "open source" materials available without restriction to any member of the public is unlikely to require a DSA, the covert monitoring of online activity can amount to directed surveillance for which an authority under the RIPA should be sought. Prosecutors are referred to the Covert Law Enforcement Manual within the Legal Guidance.

Material subject to legal privilege

Covert surveillance likely or intended to result in the acquisition of knowledge of matters subject to legal privilege is subject to additional safeguards (See Home Office Covert Surveillance and Property Interference Code of Practice (COP), Chapter 9 and in particular paragraphs 9.47 to 9.82).

In addition, directed surveillance in circumstances covered by Regulation of Investigatory Powers (Extension of Authorisation Provisions: Legal Consultations) Order 2010, in particular Article 3(2)(a)-(f) (Legal Consultations Order 2010) is to be treated as intrusive surveillance.

Where the intention is for surveillance to acquire knowledge of matters subject to legal privilege, including surveillance which is treated as intrusive surveillance as a result of the Legal Consultations Order 2010, authorisation should only be granted or approved if there are exceptional and compelling circumstances that make the authorisation necessary and the proposed conduct is proportionate (paras 9.51 & 9.52 of the COP).

Intrusive surveillance, including surveillance in circumstances covered by the Legal Consultations Order 2010, may only be authorised by authorising officers entitled to grant intrusive surveillance and with the prior approval of a Judicial Commissioner, unless urgent or granted by the Secretary of State (Code of Practice 9.25).

With the exception of urgent applications and authorisations granted by the Secretary of State, authorisations for surveillance which are to be treated as intrusive surveillance as a result of the Legal Consultations Order 2010 will not take effect until the Judicial Commissioner's approval has been given and written notice of the Commissioner's decision has been provided to the authorising officer (Code of Practice paragraph 9.68).

Investigatory Powers Tribunal

The IPT was established by section 65(4) RIPA as a complaints tribunal for a person aggrieved by any such conduct specified in Section 65(4) and provides remedies including the quashing or cancelling of any authorisation, destruction of any records, compensation and any other order it thinks fit.

Disclosure duties and obligations

The CPIA Code of Practice procedure covers surveillance operations. Material which may be relevant to an investigation, which has been retained in accordance with this Code, and which the Disclosure Officer believes will not form part of the prosecution case, must be listed on a schedule (paragraph 6.2). Authorisations and accompanying forms will usually be on the sensitive material schedule (please consult Chapter 8 of this manual and CPIA Code of Practice paragraphs 6.13 and 6.14). More often than not, in these circumstances, the fact that surveillance has been carried out will be sensitive and the material treated accordingly. This will include the authorities and any supporting documentation. Where any material obtained or generated in these circumstances is considered relevant to the case, it must be dealt with in accordance with the guidance provided in Chapter 8 of this manual.

The prosecutor's duties with regard to the disclosure of surveillance authorisation documentation surveillance have been clarified by the Court of Appeal in R v GS and Others [2005] EWCA Crim 887. This case makes clear that the validity or otherwise of surveillance authorisations goes to the lawfulness of the evidence obtained, and not its admissibility. Whatever the type of surveillance relied upon, there is a duty on the prosecutor to review the authorisation and all supporting documentation. R v GS confirmed if the material does not weaken the prosecution case or strengthen the defence case, there is no requirement to disclose it. The usual principles and process apply.

For intrusive surveillance the prosecution should produce to the trial judge the Judicial Commissioner's signed approval forms. For an authority granted by a senior officer not requiring a Commissioner’s approval, the authorisation should be provided to the judge, who should also be informed that the Commissioner was notified. If the Court requires, the Investigatory Powers Commissioner’s Office will provide written confirmation of the notification.

It is good practice to include in the Disclosure Management Document that the Judicial Commissioner's approval or the senior officer’s authorisation has been obtained for the police activity that resulted in the evidence which is sought to be adduced, and that a copy of the approval will be provided to the trial judge. The alternative suggestion in R v GS and Others of a Chief Officer giving evidence is not recommended. Once it has been produced, defence counsel is not entitled to reopen the lawfulness of the authorisation as a means of, or as a route to, ventilating its admissibility (paragraph 35).

In relation to directed surveillance and human intelligence sources the prosecutor should only disclose to the defence a copy of the authorisation, redacted as necessary to remove any material to which PII applies, where it satisfies the disclosure test and/or the defence have indicated that the lawfulness of the authority or the conduct to which it relates is in issue. Such a challenge would be based on either served evidence or material disclosed by the prosecutor as potentially undermining or assisting, although R v GS and Others makes it clear that establishing that the surveillance was unlawfully conducted will rarely be sufficient to justify exclusion.

All such documentation must be dealt with in accordance with the guidance contained in Chapter 7, Chapter 8, and Chapter 9 of this manual.

Use of Surveillance Camera Systems by Police Forces

The use of overt surveillance camera systems in England and Wales is covered by the Surveillance Camera Code of Practice which is overseen by the Surveillance Camera Commissioner. The relevant legislation is s33 Protection of Freedoms Act 2012.

This Code covers the use of surveillance cameras in public places, police operated CCTV systems and body worn cameras. Where the police seek to rely on images derived from such surveillance cameras, Prosecutors should enquire whether the cameras are code compliant. If the cameras are not compliant with the Code, then this non-compliance may fall to be disclosed under the requirements of CPIA.

It should be stressed that non-compliance is highly unlikely to render the material inadmissible but the prosecutor ought to be aware of the disclosure implications.