Advanced Search

Chapter 26: Dealing with Surveillance Authorisations

Where a prosecution relies upon surveillance evidence

26.1. In these circumstances, the police will ordinarily have been required to obtain authorisation for the surveillance. In some instances, that authorisation will have required the prior written approval of a Surveillance Commissioner before it could take effect. Applications for the authorisation of surveillance and for prior approval may generate a considerable body of relevant, unused documentation and questions will arise as to the extent to which this documentation falls to be disclosed.

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

26.3. Where a police surveillance operation involves an interference with property, an authorisation must be granted by the Chief Constable pursuant to Part III of the Police Act 1997. Where the property comprises a dwelling or office premises, the prior approval of a Surveillance Commissioner is required, save in urgent cases, before the authorisation takes effect. Where the property does not comprise a dwelling or office premises, the authorisation must be notified to a Surveillance Commissioner, who has power to quash or cancel the authorisation.

26.4. Where the police wish to conduct what amounts to intrusive surveillance as defined in Part II of RIPA, an authorisation must be granted by the Chief Constable. Again, save in urgent cases, the authorisation will not take effect without the prior written approval of a Surveillance Commissioner.

26.5. Where the police wish to conduct directed surveillance pursuant to Part II of RIPA, an authorisation must be granted by an officer not below the rank of Superintendent. This authorisation does not require the prior approval of a Surveillance Commissioner before it takes effect.

26.6. Whatever form of surveillance has been deployed, the authorising officer and, where appropriate, a Surveillance Commissioner, will have had to have been satisfied that certain statutory criteria had been met. The application itself and supporting documents will set out how the officer seeking the authorisation contends that the criteria are met. The defence in turn may wish to argue that surveillance evidence should be excluded or proceedings stayed as an abuse of process if the authorisation process has not been properly followed.

26.7. Disclosure officers, or their deputies must have regard to the terms of the authorisation and supporting documentation and relate this to the subsequent police activity when considering whether there is any material that satisfies the disclosure test.

26.8. The prosecutor's duties with regard to the disclosure of surveillance authorisation documentation 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 lawfulness and not admissibility.

26.9. Whatever the type of surveillance relied upon, there is a duty on the prosecutor to review the authorisation and all supporting documentation. Any material that satisfies the disclosure test should be disclosed subject to any claim for PII.

26.10. Where no disclosable material is identified, R v GS and others makes it clear that the prosecutor's duty of disclosure will be satisfied, in the case of property interference and/or intrusive surveillance, by providing the trial judge with a copy of the Surveillance Commissioner's prior approval or his/her noting of an authority granted by a senior officer not requiring a Commissioner's prior approval. It is good practice to tell the defence, in advance of the trial that the Surveillance Commissioner's approval has been obtained for the police activity that resulted in the evidence which is sought to adduce, 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. Section 91(10) of the Police Act stipulates that decisions of a Commissioner "shall not be subject to appeal or liable to be questioned in any court". Attempts by the defence to go behind the Commissioner's prior approval are not permissible and should therefore be resisted.

26.11. In relation to directed surveillance and human intelligence sources, section 27(1) of RIPA states that conduct to which Part II of the CPIA 1996 applies shall be "lawful for all purposes" if an authorisation for such conduct has been granted and the conduct is in accordance with that authorisation. Therefore, having reviewed the authorisation and all the underlying documentation pursuant to paragraph 26.9 above, 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.

26.12. In cases where the prosecution are to rely upon surveillance evidence obtained following such an authorisation, it will usually be appropriate for the 'authorisation' to be described on the non-sensitive material schedule in accordance with the guidance contained in chapter 8, paragraph 8.21 of this manual.

Where the prosecution is not relying upon surveillance evidence

26.13. 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.

Top of page