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SIO Corner: Preparation & Managing Authorisation

This week we cover the area from the tabletop to the street - setting up the operation

In this series we study Covert Investigation as a means to detection. This includes why investigate covertly, the drawbacks, directed and intrusive surveillance, interception of communications, mobile phones, computers, CHIS's and the legal issues including the effect of the Human Rights legislation.

The articles are excerpts from a new book from Blackstone's, 'Covert Investigation' 2nd Edition, written by two highly experienced former detectives (see 'About the Authors' at the end of the article).

Planning and Preparation

It is increasingly common for investigators and applicants to be required to give a presentation to authorizing officers in order to enable the latter properly and fully to undertake their role. This is especially necessary for complex operations.

A lot is required of authorizing officers in terms of their statutory responsibilities and it can be argued that if the individual concerned is not familiar with the investigation or the geographical area in which the operation is intended to take place, it will be difficult to make an informed judgement on many of the issues that will fall to be considered.

A paper-based, or electronic authorization system, cannot provide answers to questions that may arise in the authorizing officer’s mind while reflecting upon the legality, necessity and proportionality of the proposed action: for example, what other tactics were considered? Why were they dismissed? How was the threat level arrived at?

A possible framework for approaching such presentations is suggested below. It may also serve to inform general operational planning, tasking and coordination meetings, and resource allocation meetings.

Checklist—Framework for authorization/planning presentations

• This operation is a priority because …
• The objectives and outcomes of the operation are …
• The objectives of the proposed covert investigation, within the context of the wider operation, are …
• What sort of covert investigation is being contemplated? Will prior approval be necessary? Does it involve multi-phase action (i.e. reconnoitre, deployment, recovery; each of which will have to be specifically authorized) in order to achieve a single objective?
• It meets the legal framework compliance because …
• The associated risks and threats are … [refer to Chapter 11 for risk management]
• The impact on the community will be …
• The impact on the organization (and/or partnership) will be …

Managing Deployment and Authorization

Covert investigation activity will be undertaken alongside other forms of investigation. The degree to which this takes place will vary from operation to operation. The relationship between the use of covert investigation and other investigation and intervention methods will need to be understood in order to achieve planned objectives and outcomes.

In some cases covert investigation will be used in a simple role to corroborate intelligence and inform a search warrant application: depending on the physical evidence, witness testimony, and interview evidence that follows on from the execution of the search warrant, it may or may not be necessary to adduce the covert investigation product at trial.

In more complex operations the interrelationship between different methods and constituent objectives will be more intricate. In other cases covert investigation will identify suspects against whom more conventional evidential opportunities can then be planned which may avoid the need to have to adduce the covertly obtained evidence at trial.

Covert investigation may inform decisions about the point in the investigation plan that forensic evidence will be required; it might inform a parallel stream of financial investigation with a view to providing evidence at trial or information upon which to base asset freezing and recovery; it will always provide, collaterally, information about the nature of risks and threats involved in the investigation.

Investigation and intelligence managers will be looking for new opportunities or lines of enquiry emerging from the intelligence picture developing as a result of the use of covert investigation.

Management of the investigation strategy runs in parallel with management of the investigation logistics. Basic command unit covert investigations may require logistical support from level 2 resources, for which bids will have to be made to force managers. Such bids will have to be in conjunction with appropriate tasking and co-ordination direction and may be in competition with similar bids from other BCUs.

Non-police agencies intending to undertake covert investigation may wish to buy in surveillance skills from other public sector organizations or from the private sector—the latter option does not avoid the need for RIPA authorization because s 6 HRA is interpreted as including actions taken on behalf of a public authority by a third party.

Ongoing logistical management includes management of the authorization application, renewals, and cancellations. For those agencies empowered to undertake intrusive surveillance, prior approval must be received in writing from the Office of the Surveillance Commissioners before the covert activity can commence.

Failure to comply fully with the prescribed schedules will render investigations vulnerable to being unauthorized and so subject, together with any evidence derived therefrom, to challenge in subsequent trial proceedings. One such challenge was made in R v Paulssen [2003] EWCA Crim 3109; however the Court of Appeal upheld the conviction despite the failure of authorization continuity, which the Court viewed as only a minor technical infringement of RIPA.

It is certainly not suggested here that investigators should rely on this case to avoid rigorous authorization management. Successful challenges may result in covert investigation product being excluded from evidence.

Larger organizations regularly engaging in covert investigation may wish to establish, if they do not already exist, central bureaux to assist in the management of the authority regime. Such bureaux can become centres of excellence and expertise which can greatly facilitate the appropriate and secure use of covert methods, manage the authorization process, ensure secure procedures for the handling and preservation of covert investigation product, and undertake operational reviews in order to capture organizational learning.

A consequential temptation of the central bureau concept is to have full-time or rota-based authorizing officers. The extent to which such individuals can meaningfully undertake the statutory considerations of legality, necessity, and proportionality, within the context of wider organization management issues, depends upon their familiarity with the investigation in question and the communities in which covert activity is to take place.

The balance to be struck is between the authorizing officers being sufficiently independent of the investigation as to be able to be objective when considering and reviewing applications whilst not being so independent that they are not sufficiently aware of the circumstances and so cannot arrive at an informed decision. (This where presentations in support of an application can be of particular benefit.)

About the authors: Clive Harfield is Associate Professor of Law at the University of Wollongong, NSW. He previously served with the National Crime Squad and as a Detective Inspector and BCU Intelligence and Covert Operations Manager for Warwickshire Police. Karen Harfield is a Senior Executive with the Australian Crime Commission who previously served with HM Inspector of Constabulary and as Head of Intelligence for Warwickshire Police. Clive and Karen Harfield are also co-authors of 'Intelligence', another Blackstone's Practical Policing title.

To purchase a copy of  'Covert Investigation 2nd edition' click here

 

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