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Covert Munkey

Aug 26, 2007
RIPA 2000 definition

1.1 In this code the:

" 1967 Act" means the Police (Scotland) Act 1967
" 1997 Act" means the Police Act 1997
" 2000 Act" means the Regulation of Investigatory Powers Act 2000
" RIP(S) Act" means the Regulation of Investigatory Powers (Scotland) Act 2000
1.2 This code of practice ("the code") provides guidance on the use of covert surveillance by public authorities under the RIP(S) Act and on entry on or interference with property (or wireless telegraphy) under Part III of the 1997 Act. This code replaces the code of practice issued in 1999 pursuant to section 101(3) of the 1997 Act.

1.3 General observation forms part of the duties of many law enforcement officers and other public authorities and is not usually regulated by the RIP(S) Act. For example, police officers will be on patrol to prevent and detect crime, maintain public safety and prevent disorder. Trading standards officers might covertly observe and then visit a shop as part of their enforcement function to verify the supply or level of supply of goods or services that may be liable to a restriction. Such observation may involve the use of equipment to merely reinforce normal sensory perception, such as binoculars, or the use of cameras, where this does not involve systematic surveillance of an individual.

1.4 Although the provisions of the RIP(S) Act or of this code do not normally cover the use of overt CCTV surveillance systems, since members of the public are aware that such systems are in use, there may be occasions when public authorities use overt CCTV systems for the purposes of a specific investigation or operation. In such cases, authorisation for intrusive or directed surveillance may be necessary.

1.5 The RIP(S) Act provides that all codes relating to the RIP(S) Act are admissible as evidence in criminal and civil proceedings. If any provision of the code appears relevant to any court or tribunal considering any such proceedings, or to the Investigatory Powers Tribunal established under the 2000 Act, or to one of the Commissioners responsible for overseeing the powers conferred by the RIP(S) Act, it must be taken into account.

Use of material in evidence

1.6 The admissibility of evidence obtained through covert surveillance in Scotland depends on whether evidence has been lawfully and fairly obtained. This will be decided in accordance with principles of common law. The product of the surveillance described in this code is subject to both common law provisions relating to disclosure and statutory provisions relating to retention of documents after trials. Specifically in relation to disclosure, the Crown has a duty to disclose any exculpatory evidence in their possession (see McLeod petitioner 1988 SLT 233). There is, however, no duty upon the Crown to disclose every document in their possession which may be relevant to the case.

Directed surveillance, intrusive surveillance and entry on or interference with property or with wireless telegraphy

1.7 Directed surveillance is defined in section 1(2) of the RIP(S) Act as surveillance, which is covert but not intrusive, and undertaken:

a. for the purposes of a specific investigation or specific operation;
b. in such a manner as is likely to result in the obtaining of private information about a person (whether or not one specifically identified for the purposes of the investigation or operation); and
c. otherwise than by way of an immediate response to events or circumstances the nature of which is such that it would not be reasonably practicable for an authorisation under the RIP(S) Act to be sought for the carrying out of the surveillance.

1.8 Directed surveillance investigations or operations can only be carried out by those public authorities that are listed in or added to section 8(3) of the RIP(S) Act.

1.9 Intrusive surveillance is defined in section 1(3) of the RIP(S) Act as covert surveillance that:

a. is carried out in relation to anything taking place on any residential premises or in any private vehicle; and
b. involves the presence of an individual on the premises or in the vehicle or is carried out by means of a surveillance device.

1.10 Applications to a Surveillance Commissioner for approval of a grant of authorisation to carry out intrusive surveillance can only be made by the senior authorising officer, which means the Chief Constable of a police force or by their designated deputy.

1.11 Applications to enter on or interfere with property or with wireless telegraphy can only be made by the authorising officers of those public authorities listed in or

added to section 93(5) of the 1997 Act.
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