10. Granting of authorisation for the conduct and use of Covert Human Intelligence Sources (CHIS)
The same requirements of ‘necessity’ and ‘proportionality’ exist for the granting of CHIS authorisations as are set down for directed surveillance (see sections 6.1.1. and 6.1.2 above) but the crime threshold (i.e. the availability of 6 month prison sentence) does not apply.
Additionally the authorising officer shall not grant an authorisation unless he/she believes that arrangements exist for a CHIS which satisfy the following requirements:
- there will at all times be an officer with day to day responsibility for dealing with the source and the source's welfare
- there will at all times be an officer who will have general oversight of the use made of the source
- there will at all times be an officer with responsibility for maintaining a record of the use made of the source
- those records will always contain particulars of all such matters as may be specified for this purpose by the Secretary of State
- records which 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
Similarly before authorising use or conduct of the source, the authorising officer must be satisfied that the conduct/use is proportionate to what the use or conduct of the source seeks to achieve, taking into account the likely degree of intrusion into privacy of those potentially effected or the privacy of persons other than those who are directly the subjects of the operation or investigation. Alternative means of gathering the evidence should be considered, and reasons given why this has been rejected. Measures should be taken, wherever practicable, to avoid unnecessary intrusion into the lives of those not directly connected with the operation. Where there is intrusion upon a target this and any collateral intrusion should be kept to a minimum.
Particular care is required where people would expect a high degree of privacy or where, as a consequence of the authorisation confidential material is likely to be obtained. Where confidential material is likely to be acquired, or a juvenile or vulnerable CHIS is used, then approval must be obtained from the Chief Executive, or in his absence, the person acting as Head of Paid Service.
Consideration is also required to be given to any adverse impact on community confidence that may result from the use or conduct of a source or information obtained from that source.
Additionally, the authorising officer should make an assessment of any risk to a source in carrying out the conduct in the proposed authorisation. This should include the risk to the source of any task and the likely consequences should the role of the source become known. The ongoing security and welfare of the source, after the cancellation of the authorisation, should also be considered at the outset. A responsible officer should be identified within the service concerned who will have day to day responsibility for the control and direction and activities of the source, recording the information supplied by the source; and monitoring the source’s security and welfare.
Authorisation for the use of a CHIS must be given in writing. Care must be taken to make sure that covert surveillance does not become intrusive surveillance (see section 3.6 above for what this is), as this authority is not permitted to carry out intrusive surveillance. Application must also be made to a JP for authorisation before covert surveillance is undertaken.
Ideally the authorising officers should not be responsible for authorising their own activities, e.g. those in which they themselves are to act as a source or in tasking a source. However it is recognised that this will not always be possible especially in the case of small departments.
An application for authorisation for the use or conduct of a source will be made on the appropriate form as set out at CHIS/1Application for the use of Covert Human Intelligence Sources (CHIS) and must record:
- The source’s pseudonym or ref number
- The details of the handler
- The details of the manager with general oversight
- The person responsible maintaining records under the RIPA (Source Records) Regulations 2000
- Operation name
- Job title of authorising officer
- Purpose of specific operation or investigation
- The purpose for which the source will be tasked or deployed
- Details of what the source would be tasked to do
- Why the conduct or use of the source is necessary for the purpose of preventing or detecting crime or preventing disorder
- Why the conduct or use of the source is proportionate to what it seeks to achieve
- Details of potential collateral intrusion and why the intrusion is unavoidable, precautions to minimise collateral intrusion and how any will be managed, and whether the evidence could be obtained by any other means
- Any particular sensitivities in the local community where the source is to be used, and whether similar activities are being undertaken by other public authorities that could impact on the deployment of the source
- A risk assessment of the risk to the source in carrying out the proposed conduct
- Details of any confidential material that might be obtained as a consequence of the authorisation and confidential information authorisation
The RIPA (Source Records) Regulations 2000 (SI 2000/2725) further require a record to be kept of
- the identity of the source;
- the identity, where known, used by the source;
- any relevant investigating authority other than the authority maintaining the records;
- the means by which the source is referred to within each relevant investigating authority;
- any other significant information connected with the security and welfare of the source;
- any confirmation made by a person granting or renewing an authorisation for the conduct or use of a source that the information in paragraph (d) has been considered and that any identified risks to the security and welfare of the source have where appropriate been properly explained to and understood by the source;
- the date when, and the circumstances in which, the source was recruited;
- the identities of the persons who, in relation to the source, are discharging or have discharged the functions mentioned in section 29(5)(a) to (c) of the 2000 Act or in any order made by the Secretary of State under section 29(2)(c);
- the periods during which those persons have discharged those responsibilities;
- the tasks given to the source and the demands made of him in relation to his activities as a source;
- all contacts or communications between the source and a person acting on behalf of any relevant investigating authority;
- the information obtained by each relevant investigating authority by the conduct or use of the source;
- any dissemination by that authority of information obtained in that way; and
- in the case of a source who is not an undercover 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 source's activities for the benefit of that or any other relevant investigating authority.