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PART III OF THE POLICE ACT 1997 - DRAFT CODE OF PRACTICE

Part III of the Police Act 1997 provides a statutory system for the authorisation of police and customs intrusive surveillance operations which may involve entry on or interference with property or wireless telegraphy.

Under section 101 of the Police Act 1997 the Secretary of State is required to issue a code of practice in connection with the performance of functions by persons other than Commissioners under Part III.

The Act provides that, before a code of practice may be issued, the Secretary of State shall prepare and publish it in draft, shall consider any representations made to him about the draft, and may modify the draft accordingly. The code of practice may not come into effect until approved by a resolution of each House of Parliament.

A draft code of practice is now published in the attached text for consultation in accordance with these provisions. The purpose of this document is to consult interested bodies and the public and invite comments on the draft.

Any comments on the draft code should be sent to:

or emailed to pocu@holis.demon.co.uk

To be received by Tuesday, 30 September 1997.

Additional copies of the draft code may be obtained from the same address, or by telephoning: 0171 273 4070 or 0171 273 4287.

It will be assumed that comments are not given in confidence, unless signified to the contrary.

PETER WRENCH

Head of Policing Organised Crime Unit

INTRUSIVE SURVEILLANCE

CODE OF PRACTICE

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Commencement

This code applies to any authorisation of intrusive surveillance (under Part III of the Police Act 1997) by the police, Her Majesty's Customs & Excise, the National Criminal Intelligence Service or the National Crime Squad which is given after midnight on **/**/97

Draft Consultation Version

1 GENERAL

1.1 This code of practice must be readily available at all operational police premises and offices of HM Customs & Excise, the National Criminal Intelligence Service (NCIS) and the National Crime Squad for consultation and reference by police officers, customs officers, civilian employees of a police authority, persons detained in police or Customs' custody and their representatives. Copies should be available for members of the public from all police stations and public offices of HM Customs & Excise.

1.2 Notes for guidance printed in this code are not part of the code but are designed to assist police officers and others in its application.

1.3 This code governs intrusive surveillance operations conducted within the United Kingdom by the police and HM Customs & Excise which are authorised under Part III of the Police Act 1997. It also governs intrusive surveillance operations conducted by NCIS and the National Crime Squad following implementation of Parts I and II of the Police Act 1997. References in the code to a police force or police authority include references to NCIS and the National Crime Squad and their Service Authorities, as appropriate.

1.4 The interception of communications sent by post or by means of public telecommunications systems may be authorised only by the Secretary of State personally, in accordance with the terms of the Interception of Communications Act 1985. Nothing in this code should be taken as granting dispensation from the requirements of that Act. [See Note 1A].

Interpretation

1.5 For the purpose of this code, "intrusive surveillance" means surveillance activity which involves entry on or interference with property or with wireless telegraphy within the meaning of section 92 of the Police Act 1997 ("the Act").

1.6 In this Code: - "authorising officer" means:

• the chief constable of a police force in England, Wales or Scotland;
• the Commissioner or an Assistant Commissioner of the Metropolitan Police force;
• the Commissioner of the City of London Police force;
• the chief constable or a deputy chief constable of the Royal Ulster Constabulary;
• the Director General of the National Crime Squad;
• the Director General of NCIS; or
• the customs officer designated by the Commissioners of HM Customs and Excise under Section 93(5)(h) of the Act. [See Note 1B]; - "designated deputy" means:
• the person holding the rank of assistant chief constable designated to act in the absence of the chief constable under section 12(4) of the Police Act 1996 or section 5(4) of the Police (Scotland) Act 1967;
• the person designated to act in the absence of the Commissioner of the City of London Police under section 25 of the City of London Police Act 1839. [See Note 1C];
• the person designated to act in the absence of the Director General of the National Criminal Intelligence Service under section 8 of the Police Act 1997;
• the person designated to act in the absence of the Director General of the National Crime Squad under section 54 of the Police Act 1997. 1.7 The "designated deputy" is empowered to act as "authorising officer" only in the circumstances outlined in section 12(4) of the Police Act 1996, section 5(4) of the Police (Scotland) Act 1967, section 25 of the City of London Police Act 1839, or sections 8 and 54 of the Police Act 1997.1.8 In addition, section 2.10 below sets out circumstances where authorisations can be given in the absence of the authorising officers or designated deputies in urgent cases.

Notes for Guidance

1A The question will frequently arise whether a surveillance device may legitimately be used in circumstances where the incidental effect will be to enable the overhearing of what is said by a party to a telephone conversation who is speaking from a location where a device is installed. The use of a surveillance device should not be ruled out simply because it may incidentally pick up one end of a telephone conversation. However, its use would not be appropriate where the sole purpose of its use is to overhear speech which, at the moment of interception, is being transmitted by a public telecommunications system. In such cases an application must be made for a warrant under the Interception of Communications Act 1985.There is nothing in the Police Act 1997 comparable to section 9 of the Interception of Communications Act 1985, the effect of which is to exclude intercept material from being adduced as evidence in court proceedings.

1B This will be the Chief Investigation Officer or, in his absence, the Deputy Chief Investigation Officer of the National Investigation Service, HM Customs & Excise.

1C This will be the Assistant Commissioner of the City of London Police

2 AUTHORISATION UNDER PART III OF THE POLICE ACT 1997

Criteria

2.1 Responsibility for the authorisation of all intrusive surveillance operations requiring interference with property rests with the authorising officer. Authorisations require the personal authority of the authorising officer except in circumstances set out in section 2.10 of this code. Authorisations under Part III will not be necessary where the police, the National Crime Squad, NCIS or HM Customs & Excise are acting with the consent of a person able to give permission in respect of relevant premises.

2.2 Before granting an application for intrusive surveillance, the person giving the authorisation must be satisfied that:

• the investigation concerns serious crime [see Note 2A];
• the action proposed is necessary because it is likely to be of substantial value in the prevention or detection of serious crime; and
• what the action seeks to achieve cannot reasonably be achieved by other means [see Note 2B].

2.3 Any person giving an authorisation should first satisfy him/herself that the degree of intrusion into the privacy of those affected by the surveillance is commensurate with the seriousness of the offence. That is to say, consideration should be given to the proportionality of the intrusion compared to the crime committed or planned. This is especially the case where the subjects of the surveillance might reasonably assume a high degree of privacy, for instance in their homes. Particular thought should also be given to any collateral intrusion on the privacy of people other than the subject of surveillance and, in circumstances where there are special sensitivities, such as where the intrusion might affect communications between a Minister of any religion or faith and an individual relating to that individual's spiritual welfare or where legal privilege could be affected. In addition, police forces in England, Wales, Scotland and Northern Ireland and HM Customs & Excise have given an undertaking not to mount surveillance operations in circumstances covered by the Seal of Confession.

Cases requiring approval of Commissioner

2.4 In certain cases, the authorisation will not take effect and intrusive surveillance must not begin until it has been approved by a Commissioner (but see paragraph 2.9 regarding cases of urgency). These cases are where the person giving the authorisation believes that:

• any of the property specified in the authorisation:
• is used wholly or mainly as a dwelling or as a bedroom in a hotel; or
• constitutes office premises; or
• the action authorised is likely to result in any person acquiring knowledge of:
• matters subject to legal privilege;
• confidential personal information; or
• confidential journalistic material.

2.5 "Office premises" are defined, by reference to section 1(2) of the Offices, Shops and Railway Premises Act 1963 as, any building or part of a building whose sole or principal use is as an office or for office purposes (which means purposes of administration, clerical work, handling money and telephone or telegraph operation).

2.6 Matters subject to legal privilege includes both oral and written communications between a lawyer and his client or any person representing his client made in connection with the giving of legal advice to the client or in contemplation of legal 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.

2.7 Confidential personal information includes confidential oral and written communications 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 and which is held in confidence. Additionally, personal information includes information concerning an individual (whether living or dead), who can be identified from it and relating to his physical or mental health or to spiritual counselling or assistance given or to be given. For the purposes of this code, information is held in confidence if:

• it is held subject to an express or implied undertaking to hold it in confidence; or
• it is subject to a restriction on disclosure or an obligation of secrecy required by existing or future legislation.2.8 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.2.9 Where the case is urgent, the authorisation can take effect immediately and intrusive surveillance begin without the prior approval of the Commissioner. The authorising officer must include his/her reasons for considering the case to be urgent in the notification of the authorisation which he/she sends to the Commissioner (see section 2.13).

Authorisation procedures

2.10 Authorisations will generally be given in writing by the authorising officer. However, in urgent cases, they may be given orally by the authorising officer. In such cases, a statement that the authorising officer has expressly authorised the action should be recorded in writing as soon as is reasonably practicable. This should be done by the person with whom the authorising officer spoke. If the authorising officer is absent as provided for in section 12(4) of the Police Act 1996, section 5(4) of the Police (Scotland) Act 1967, section 25 of the City of London Police Act 1839, or sections 8 or 54 of the Police Act 1997, an authorisation can be given in writing or, in urgent cases, orally by the designated deputy. Where, however, in an urgent case, it is not reasonably practicable for the designated deputy to consider an application, then written authorisation may be given:

• in the case of the police, by an assistant chief constable (other than a designated deputy);
• in the case of the Metropolitan Police and City of London Police, by a commander;
• in the case of NCIS and the National Crime Squad, by the person designated by the relevant Director General [see Note 2C];
• in the case of HM Customs & Excise, by the person designated by the Commissioners of Customs & Excise. [See Note 2D].

2.11 Applications to the authorising officer for authorisation must be made in writing by a police or customs officer or a member of NCIS or the National Crime Squad (within the terms of section 93(3) of the Act) and should specify:

• the names, where known, of those to be targeted;
• the property which the intrusive surveillance will affect;
• the nature of the case and of the intrusive surveillance involved;
• how the authorisation criteria (as set out in section 2.2) have been met;
• any action which may be necessary to retrieve any equipment used in the surveillance; and subsequently record whether authority was given or refused, by whom and the time and date.

2.12 Additionally, in urgent cases, the authorisation should record (as the case may be):

• reasons why the authorising officer or designated deputy considered the case so urgent that an oral instead of a written authorisation was given;
• reasons why the authorising officer or the designated deputy was not available to give an authorisation.

Notifications

2.13 Where a person gives, renews or cancels an authorisation, he/she should, as soon as is reasonably practicable, give notice of it in writing to a Commissioner, in accordance with whatever arrangements have been made by the Chief Commissioner. All notifications should specify whether or not they require the approval of the Commissioner. In urgent cases which would otherwise have required the approval of the Commissioner, the notification should include the grounds on which the case was considered to be one of urgency.

2.14 There may be cases which become urgent after approval has been sought but before a response has been received from a Commissioner. In such a case, the authorising officer should give a fresh authorisation and notify the Commissioner that the case is urgent (pointing out that it has become urgent since the previous notification). In these cases, the authorisation will take effect immediately.

2.15 The information to be included in the notification to the Commissioner of the authorisation is set out in [title of statutory instrument]. All notifications must record:

• whether it is a case for which the approval of a Commissioner is required;
• if it is a case which would otherwise require the approval of a Commissioner but in which intrusive surveillance has started because of urgency, the grounds on which the case was considered to be urgent;
• how the authorisation criteria have been met (for example, how the case fits within the definition of serious crime and why what the action seeks to achieve cannot reasonably be achieved by other means);
• the names, where known, of those to be targeted;
• the property against which any intrusive surveillance is to take place (in the case of vehicles, this could include any vehicle used by the person targeted);
• the nature of the case, of the intrusive surveillance involved and the reason why the intrusive surveillance in question is necessary;
• whether or not it will be necessary to retrieve any equipment used in the surveillance.

Duration of authorisations

2.16 Written authorisations given by authorising officers or designated deputies will cease to have effect at the end of a period of three months beginning with the day on which they took effect. In cases requiring prior approval by a Commissioner this means from the time the Commissioner has approved the authorisation and the person who gave the authorisation has been notified. In cases not requiring prior approval, this means from the time the authorisation was given.

2.17 Oral authorisations given in urgent cases by

• authorising officers; or
• designated deputiesand written authorisations given by:
• assistant chief constables (other than a designated deputy);
• commanders in the Metropolitan Police and City of London Police;
• the person designated to act by the relevant Director General of NCIS and National Crime Squad;
• the person designated for the purpose by the Commissioners of Customs & Excise for this purpose;will cease at the end of the period of 72 hours beginning with the time when they took effect.

Reviews and cancellations

2.18 A person who has given an authorisation must cancel it if, at any time subsequently, he/she is satisfied that the intrusive surveillance is no longer necessary. An authorising officer must cancel an authorisation given in his/her absence if satisfied that the action authorised is no longer necessary. This could be because an investigation has been completed or discontinued or because the surveillance no longer fulfils the criteria set out in section 2.2. Authorising officers should therefore carry out a periodic review of authorisations to assess the need for the intrusive surveillance operation to continue. This should be recorded on the "authorisation record" [see paragraph 2.24 and 2.25 below and Note 2E].

2.19 The Commissioner also has the power to cancel an authorisation if he/she is satisfied that, at any time after an authorisation was given or renewed, there were no reasonable grounds for believing the matters set out in section 2.2 above. In such circumstances, the Commissioner may order the destruction of records, in whole or in part, other than those required for pending criminal or civil proceedings, and award compensation to a complainant, where the authorisation is the subject of a complaint.

Renewals

2.20 If at any time before the day on which an authorisation expires the authorising officer or, in his/her absence, the designated deputy considers the authorisation should continue to have effect for the purpose for which it was issued, he/she may renew it in writing for a period of three months beginning with the day on which the authorisation would otherwise have ceased to have effect. Authorisations may be renewed more than once, if necessary, and the renewal should be recorded on the "authorisation record".

2.21 The fact that an authorisation required the approval of a Commissioner before taking effect does not mean that its renewal will automatically require such approval. It will only do so if, at the time of the renewal, it falls into one of the categories requiring approval (and is not urgent). In all cases, the Commissioner should be notified of the renewal as soon as reasonably practicable. The notification should set out all the matters referred to in section 2.15 above.

Ceasing of surveillance activity

2.22 Once an authorisation or renewal expires or is cancelled or quashed, the authorising officer must immediately instruct those carrying out the surveillance to stop listening, watching or recording the activities of the subject of the authorisation. The time and date when such an instruction was given should be recorded on the authorisation record (see section 2.26).

Retrieval of equipment

2.23 Where a Commissioner quashes or cancels an authorisation or renewal, he/she will, if there are reasonable grounds for doing so, order that the authorisation will remain effective for a specified period, to enable officers to retrieve anything left on the property by virtue of the authorisation. He or she can only do so if the authorisation or renewal makes provision for this. A decision by the Commissioner not to give such an order can be the subject of an appeal to the Chief Commissioner.

Authorisation record

2.24 An "authorisation record" should be created which records:

• the time and date when an authorisation is given;
• the time and date when it was notified to the Commissioner; and
• the time and date when the Commissioner notified his/her approval (where appropriate).

2.25 The authorisation record should also record:

• every occasion when interference with property has occurred;
• the result of periodic reviews of the authorisation; and
• the number of renewals, if any.

2.26 Finally, it should record the time and date when any instruction was given by the authorising officer to cease surveillance.

2.27 There should be a central record held in each force/service of all authorisations. These records should be retained for a period of at least five years from the ending of the authorisation.

Retention and destruction of the product of surveillance

2.28 If there is any reason to believe that the product obtained by intrusive surveillance might be relevant to pending or future civil or criminal proceedings then it should not be destroyed but retained in accordance with normal disclosure requirements (for example, under the Criminal Procedure and Investigations Act 1996 and the code of practice prepared under the Act). In Scotland, if a report has been submitted to the Procurator Fiscal in relation to the crime under investigation, the Procurator Fiscal must be told of the intrusive surveillance and the product of the surveillance should be retained and made available if requested by the Procurator Fiscal. Where the police or HM Customs & Excise believe that intrusive surveillance material might be relevant to future civil or criminal proceedings, and that there is a possibility that a Commissioner might order the destruction of such material, they should inform the Commissioner of their belief and the reasons for it. If the material held includes confidential personal or other sensitive information, particular care should be taken to safeguarding its confidentiality.

2.29 Where material is obtained by intrusive surveillance which is wholly unrelated to a criminal investigation or to any person who is the subject of the investigation, and there is no reason to believe it will be relevant to future civil or criminal proceedings, it should be destroyed immediately.

Notes for guidance

2A Serious crime is defined in section 93(4) of the Act.

2B For example, intrusive surveillance should not be used as a means of circumventing the need for a warrant under the Interception of Communications Act 1985, or of carrying out operations within the responsibilities of the Security and Intelligence Services which properly fall to be authorised by a warrant issued by the Secretary of State under the Intelligence Services Act 1994.

2C This will be an officer of a rank no lower than an assistant chief constable, or a commander in the Metropolitan Police or City of London Police forces, or additionally in the case of the National Criminal Intelligence Service, an assistant chief investigation officer of Customs & Excise;

2D This will be an officer of the rank of assistant chief investigation officer.2E The authorising officer should determine how often a review should take place when giving an authorisation. In general terms this should be at no greater interval than one month.

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3 THE CHIEF COMMISSIONER AND COMMISSIONERS

3.1 Part III of the Act creates the posts of Commissioner and Chief Commissioner.

3.2 It will be the duty of any person having functions under Part III and any person taking action in relation to which an authorisation was given, to comply with any request of a Commissioner for documents or information as required by him/her for the purpose of enabling him/her to discharge his/her functions.

Functions of the Commissioners

3.3 Commissioners will be serving or former high court judges who will be appointed for a fixed term of three years. They will be responsible, inter alia, for:

• scrutinising every notice of authorisation given to them as soon as reasonably practicable;
• giving approval for authorisations which the authorising officer believes involves residential dwellings, offices, hotel bedrooms, matters subject to legal privilege, confidential personal information or confidential journalistic material;
• considering whether there are reasonable grounds for believing that the action proposed comes within the criteria for authorisation (those matters detailed in section 2.2);
• notifying the authorising officer whether or not they approve authorisations which the authorising officer believes require approval;
• investigating complaints about an alleged authorisation for interference with the complainant's property under the provisions of the Act. A place where the complainant works or resides is regarded as property of the complainant for these purposes;
• notifying the complainant when they have upheld a complaint and reporting their findings to the authorising officer who gave the authorisation, or in whose absence it was given, and to the Chief Commissioner;
• notifying the complainant when no determination has been made in the complainant's favour;
• quashing an authorisation or renewal where they are, at any time, satisfied that there were no reasonable grounds for believing that it met the criteria for authorisation (those matters detailed in section 2.2) or cancelling an authorisation where they are satisfied that, at any time, there were no reasonable grounds for continuing to believe that it met the criteria;
• reporting their findings to the authorising officer and to the Chief Commissioner when they decide to cancel or quash an authorisation;
• deciding whether to order the destruction of records, wholly or in part (other than those required for pending criminal or civil proceedings),
• ordering, in appropriate cases, that an authorisation remain effective for a specified period to retrieve anything from the property;
• ordering, in appropriate cases, compensation if an authorisation is quashed or cancelled and a complaint upheld.

3.4 A Commissioner shall give notice to a complainant where he/she has made a determination upholding a complaint and report his/her findings to the authorising officer who gave the authorisation (or in whose absence it was given) and to the Chief Commissioner. The Commissioner will not give reasons in any other case.

Functions of the Chief Commissioner

3.5 The Chief Commissioner, who will also be a serving or former high court judge appointed for a fixed period of three years, will be responsible, inter alia, for:

• keeping under review the performance of functions by authorising officers and Commissioners under this Part of the Act;
• considering appeals by authorising officers;
• considering appeals by complainants;
• making an annual report to the Prime Minister on the discharge of his functions under this Act and reporting to him at any other time on any matter relating to those functions.3.6 The Chief Commissioner will not give any reasons for a determination, except to the authorising officer, the Commissioner who made the decision and the Prime Minister.

4 APPEALS

4.1 Authorising officers may appeal to the Chief Commissioner within a period of 7 days against any decision made by a Commissioner:

• to refuse to approve an authorisation or its renewal;
• to quash an authorisation or renewal;
• to cancel an authorisation;
• to order the destruction of records when cancelling or on expiry of an authorisation (other than those required for pending civil or criminal proceedings);
• to refuse to order that the authorisation remain effective for a specified period to allow the retrieval of anything left on the premises by virtue of the authorisation;
• to uphold a complaint.

4.2 Any decision by a Commissioner to order the destruction of records or to direct the payment of compensation will not become operative until the period for appealing against the decision has expired and, where there is an appeal, a decision dismissing it has been made by the Chief Commissioner.

5 INFORMATION LEAFLET

5.1 Authorising officers should ensure that the information leaflet "The Police Act 1997; Complaints about the use of intrusive surveillance" is readily available at any police station or public office of HM Customs & Excise.