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PART II |
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SURVEILLANCE AND COVERT HUMAN INTELLIGENCE SOURCES |
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Introductory |
| Conduct to which Part II applies. |
25. - (1) This Part applies to the following conduct-
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(a) directed surveillance; |
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(b) intrusive surveillance; and |
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(c) the conduct and use of covert human intelligence sources. |
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(2) For the purposes of this Part surveillance is directed if it is covert but not intrusive and is undertaken-
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(a) for the purposes of a specific investigation; and |
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(b) in order to obtain information about or to identify a particular person, or to determine who is involved in the matter under investigation. |
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(3) Subject to subsections (4) and (5), surveillance is intrusive for the purposes of this Part if, and only if, it is covert surveillance that either-
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(a) involves the presence of an individual, or of any surveillance device, on any residential premises or in any private vehicle; or |
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(b) is carried out in relation to anything taking place on residential premises or in a private vehicle by means of any surveillance device that is not present on the premises or in the vehicle. |
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(4) For the purposes of this Part surveillance is not intrusive to the extent that-
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(a) it is carried out by means only of a surveillance device designed or adapted principally for the purpose of providing information about the location of a vehicle; or |
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(b) it is surveillance consisting in any such interception of a communication as falls within section 45(4). |
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(5) For the purposes of this Part surveillance which-
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(a) 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 |
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(b) is carried out without that device being present on the premises or in the vehicle, |
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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.
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(6) In this Part-
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(a) references to the conduct of a covert human intelligence source are references to any conduct of such a source which falls within any of paragraphs (a) to (c) of subsection (7), or is incidental to anything falling within any of those paragraphs; and |
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(b) references to the use of a covert human intelligence source are references to inducing, asking or assisting a person to engage in the conduct of such a source, or to obtain information by means of the conduct of such a source. |
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(7) For the purposes of this Part a person is a covert human intelligence source if-
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(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); |
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(b) he covertly uses such a relationship to obtain information or to provide access to any information to another person; or |
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(c) he covertly discloses information obtained by the use of such a relationship, or as a consequence of the existence of such a relationship. |
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(8) For the purposes of this section-
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(a) surveillance is covert if, and only if, it is carried out in a manner that is calculated to ensure that persons who are subject to the surveillance are unaware that it is or may be taking place; |
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(b) a purpose is covert, in relation to the establishment or maintenance of a personal or other relationship, if and only if the relationship is conducted in a manner that is calculated to ensure that one of the parties to the relationship is unaware of the purpose; and |
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(c) a relationship is used covertly, and information obtained as mentioned in subsection (7)(c) is disclosed covertly, if and only if it is used or, as the case may be, disclosed in a manner that is calculated to ensure that one of the parties to the relationship is unaware of the use or disclosure in question. |
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(9) References in this section, in relation to a vehicle, to the presence of a surveillance device in the vehicle include references to its being located on or under the vehicle and also include references to its being attached to it.
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Authorisation of surveillance and human intelligence sources |
| Lawful surveillance etc. |
26. - (1) Conduct to which this Part applies shall be lawful for all purposes if-
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(a) an authorisation under this Part confers an entitlement to engage in that conduct on the person whose conduct it is; and |
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(b) his conduct is in accordance with the authorisation. |
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(2) A person shall not be subject to any civil liability in respect of any conduct of his which-
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(a) is incidental to any conduct that is lawful by virtue of subsection (1); and |
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(b) is not itself conduct an authorisation or warrant for which is capable of being granted under a relevant enactment and might reasonably have been expected to have been sought in the case in question. |
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(3) The conduct that may be authorised under this Part includes conduct outside the United Kingdom.
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(4) In this section "relevant enactment" means-
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(a) an enactment contained in this Act; |
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(b) section 5 of the Intelligence Services Act 1994 (warrants for the intelligence services); or |
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(c) an enactment contained in Part III of the Police Act 1997 (powers of the police and of customs officers). |
| Authorisation of directed surveillance. |
27. - (1) Subject to the following provisions of this Part, the persons designated for the purposes of this section shall each have power to grant authorisations for the carrying out of directed surveillance.
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(2) A person shall not grant an authorisation for the carrying out of directed surveillance unless he believes-
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(a) that the authorisation is necessary on grounds falling within subsection (3); and |
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(b) that the authorised surveillance is proportionate to what is sought to be achieved by carrying it out. |
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(3) An authorisation is necessary on grounds falling within this subsection if it is necessary-
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(a) in the interests of national security; |
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(b) for the purpose of preventing or detecting crime or of preventing disorder; |
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(c) in the interests of the economic well-being of the United Kingdom; |
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(d) in the interests of public safety; |
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(e) for the purpose of protecting public health; |
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(f) for the purpose of assessing or collecting any tax, duty, levy or other imposition, contribution or charge payable to a government department; or |
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(g) for any purpose (not falling within paragraphs (a) to (f)) which is specified for the purposes of this subsection by an order made by the Secretary of State. |
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(4) The conduct that is authorised by an authorisation for the carrying out of directed surveillance is any conduct that-
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(a) consists in the carrying out of directed surveillance of any such description as is specified in the authorisation; |
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(b) is carried out in the circumstances described in the authorisation and for the purposes of the investigation specified or described in the authorisation; and |
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(c) in order to obtain the information, or to make the determination, so specified or described. |
| Authorisation of covert human intelligence sources. |
28. - (1) Subject to the following provisions of this Part, the persons designated for the purposes of this section shall each have power to grant authorisations for the conduct or the use of a covert human intelligence source.
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(2) A person shall not grant an authorisation for the conduct or the use of a covert human intelligence source unless he believes-
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(a) that the authorisation is necessary on grounds falling within subsection (3); |
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(b) that the authorised conduct or use is proportionate to what is sought to be achieved by that conduct or use; and |
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(c) that arrangements exist for the source's case that satisfy the requirements of subsection (5). |
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(3) An authorisation is necessary on grounds falling within this subsection if it is necessary-
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(a) in the interests of national security; |
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(b) for the purpose of preventing or detecting crime or of preventing disorder; |
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(c) in the interests of the economic well-being of the United Kingdom; |
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(d) in the interests of public safety; |
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(e) for the purpose of protecting public health; |
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(f) for the purpose of assessing or collecting any tax, duty, levy or other imposition, contribution or charge payable to a government department; or |
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(g) for any purpose (not falling within paragraphs (a) to (f)) which is specified for the purposes of this subsection by an order made by the Secretary of State. |
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(4) The conduct that is authorised by an authorisation for the conduct or the use of a covert human intelligence source is any conduct that-
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(a) is comprised in any such activities involving conduct of a covert human intelligence source, or the use of a covert human intelligence source, as are specified or described in the authorisation; |
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(b) consists in conduct by or in relation to the person who is so specified or described as the person to whose actions as a covert human intelligence source the authorisation relates; and |
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(c) is carried out for the purposes of, or in connection with, the investigation or operation so specified or described. |
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(5) For the purposes of this Part there are arrangements for the source's case that satisfy the requirements of this subsection if such arrangements are in force as are necessary for ensuring-
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(a) that there will at all times be a person holding an office, rank or position with the relevant investigating authority who will have day-to-day responsibility for dealing with the source on behalf of that authority, and for the source's security and welfare; |
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(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 source; |
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(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 source; |
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(d) that the records relating to the source 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 |
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(e) that records maintained by the relevant investigating authority that disclose the identity of the source 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. |
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(6) In this section "relevant investigating authority", in relation to an authorisation for the conduct or the use of an individual as a covert human intelligence source, means (subject to subsection (7)) the public authority for whose benefit the activities of that individual as such a source are to take place.
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(7) In the case of any authorisation for the conduct or the use of a covert human intelligence source whose activities are to be for the benefit of more than one public authority, the references in subsection (5) to the relevant investigating authority are references to one of them.
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| Persons entitled to grant authorisations under ss. 27 and 28. |
29. - (1) Subject to subsection (3), the persons designated for the purposes of sections 27 and 28 are the individuals holding such offices, ranks or positions with relevant public authorities as are prescribed for the purposes of this subsection by an order made by the Secretary of State.
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(2) For the purposes of the grant of an authorisation that combines-
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(a) an authorisation under section 27 or 28, and |
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(b) an authorisation by the Secretary of State for the carrying out of intrusive surveillance, |
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the Secretary of State himself shall be a person designated for the purposes of that section.
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(3) The Secretary of State may by order impose restrictions-
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(a) on the authorisations under sections 27 and 28 that may be granted by any individual holding an office, rank or position with a specified public authority; and |
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(b) on the circumstances in which, or the purposes for which, such authorisations may be granted by any such individual. |
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(4) In this section "relevant public authority" means any of the following-
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(b) the National Criminal Intelligence Service; |
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(c) the National Crime Squad; |
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(d) any of the intelligence services; |
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(e) the Ministry of Defence; |
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(f) any of Her Majesty's forces; |
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(g) the Commissioners of Customs and Excise and their department; |
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(h) any such public authority not falling within paragraphs (a) to (g) as may be specified for the purposes of this section by an order made by the Secretary of State. |
| Authorisation of intrusive surveillance. |
30. - (1) Subject to the following provisions of this Part, the Secretary of State and each of the senior authorising officers shall have power to grant authorisations for the carrying out of intrusive surveillance.
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(2) Neither the Secretary of State nor any senior authorising officer shall grant an authorisation for the carrying out of intrusive surveillance unless he believes-
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(a) that the authorisation is necessary on grounds falling within subsection (3); and |
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(b) that the authorised surveillance is proportionate to what is sought to be achieved by carrying it out. |
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(3) Subject to the following provisions of this section, an authorisation is necessary on grounds falling within this subsection if it is necessary-
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(a) in the interests of national security; |
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(b) for the purpose of preventing or detecting serious crime; or |
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(c) in the interests of the economic well-being of the United Kingdom. |
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(4) The matters to be taken into account in considering whether the requirements of subsection (2) are satisfied in the case of any authorisation shall include whether the information which it is thought necessary to obtain by the authorised conduct could reasonably be obtained by other means.
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(5) The conduct that is authorised by an authorisation for the carrying out of intrusive surveillance is any conduct that-
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(a) consists in the carrying out of intrusive surveillance of any such description as is specified in the authorisation; |
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(b) is carried out in relation to the residential premises specified or described in the authorisation or in relation to the private vehicle so specified or described; and |
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(c) is carried out for the purposes of, or in connection with, the investigation or operation so specified or described. |
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(6) For the purposes of this section the senior authorising officers are-
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(a) the chief constable of every police force maintained under section 2 of the Police Act 1996 (police forces in England and Wales outside London); |
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(b) the Commissioner of Police of the Metropolis and every Assistant Commissioner of Police of the Metropolis; |
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(c) the Commissioner of Police for the City of London; |
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(d) the Chief Constable of the Royal Ulster Constabulary and the Deputy Chief Constable of the Royal Ulster Constabulary; |
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(e) the Chief Constable of the Ministry of Defence Police; |
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(f) the Provost Marshal of the Royal Navy Regulating Branch; |
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(g) the Provost Marshal of the Royal Military Police; |
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(h) the Provost Marshal of the Royal Air Force Police; |
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(i) the Chief Constable of the British Transport Police; |
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(j) the Director General of the National Criminal Intelligence Service; |
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(k) the Director General of the National Crime Squad and any person holding the rank of assistant chief constable in that Squad who is designated for the purposes of this paragraph by that Director General; and |
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(l) any customs officer designated for the purposes of this paragraph by the Commissioners of Customs and Excise. |
