11 November 2001. Thanks to HB.

The Associations of
Chief Police Officers

and

HM Customs and Excise

Public Statement
on
Standards
in
Covert Law Enforcement Techniques

Public Statement on Standards in Covert Law Enforcement Techniques

Codes of Practice (separate files)

Use of Informants (288KB)

Surveillance (286KB)

Undercover Operations (274KB)

Interception of Communications and Accessing Communications Data (313KB)

The Recording and Dissemination of Intelligence Material (277KB)

Declaration on ethical standards and covert investigative techniques

The principal United Kingdom law enforcement agencies* are committed to the maintenance of working practices which observe their obligations under the European Convention on Human Rights.

* This declaration is jointly issued by the Association of Chief Police Officers, the Association qf Chief Police Officers in Scotland, Her Majesty's Chstoms and Excise and the Directors General of the National Crime Squad and the National Criminal Intelligence Service.

Those working practices seek to achieve a balance between the requirement to work within a defined framework for the safeguarding of civil liberties and the maintenance of a robust approach to the tackling of crime and criminality.

This document sets out in general terms:

Part 1 the case for covert law enforcement techniques in the light of the threat from serious crime and criminality;

Part 2 the ethical precepts to which the law enforcement agencies subscribe in the conduct of covert operations;

Part 3 the commitment of the law enforcement agencies to common standards of integrity in the collection, storage and use of intelligence and sensitive investigative material;

Part 4 the commitment of the law enforcement agencies to the auditing of standards and the provision of effective complaints and redress procedures for infringements of rights conferred by the Convention.

The case for covert law enforcement techniques

The threat from crime

Serious crime and organised criminality are corrosive of civilised society. The growth in the threat from crime has been acknowledged both by Parliament and the courts in the provision of increased powers for law enforcement and in support for the principle of public interest immunity in the defence of both intelligence sources and those sensitive investigative techniques, the revelation of which to determined criminals would undermine the continuing operational effectiveness of the techniques.

The law enforcement agencies seek to tackle the consequences of serious crime and organised criminality at several levels simultaneously:

• to mitigate the effects of criminal behaviour and violent disorder which degrade environments and diminish the quality of life whether through the reality or the fear of crime or through the destruction of the atribition and opportunities of the young by the marketing of narcotics;

• to mitigate the damage done to the administrative, financial and business infrastructure of society by the corruption of legitimate authority and business activity, and by the syphoning of profits;

• to mitigate the damage done to public confidence in the criminal justice system and to the rule of law by those who intimidate or suborn witnesses, who promote the corruption of law enforcement officers, who exploit weaknesses in national and international jurisdictions and who seek to discover and disable advances in investigative techniques.

The intelligence requirement

The challenge offered to law enforcement agencies is to design and sustain, within the rule of law, preventive and investigative techniques that meet the requirements of each of the described levels. The key to effective law enforcement stratagems is the ability to describe and analyse the nature of the criminal problem.

Such a description and analysis are products of the effective collection of intelligence. The tackling of serious crime and organised criminality requires:

• that criminal motivation be understood;

• that the extent of networking, organisation and interdependence of individual criminals and criminal groups be capable of description and their strengths and weaknesses be understood;

• that the methods of criminal businesses and their market positions be similarly described and understood;

• that law enforcement officers stay abreast of developing criminal tactics in both the commission of crime and attempts to frustrate investigators and the courts, and that the reasons why individuals, groups and business are targeted as victims of crime be equally well understood.

In the face of criminals' determination to protect their criminal activity from exposure, the collection of intelligence demands the application of both overt and covert investigative techniques.

Investigation and evidence

Notwithstanding the essential nature of intelligence work, the primary responsibility of the law enforcement agencies remains to collect evidence to the standard that will ensure the conviction of serious offenders before the Courts. The effective collection of intelligence on active criminals and their organisations enables investigation to be accurately targeted with minimum interference to the fives and liberties of individual citizens. The police and HM Customs and Excise are neither able nor desirous of embarking on 'fishing expeditions' which collect information on individuals regardless of value to the prevention or detection of crime.

In the face of sophisticated attempts by determined criminals and those bent on violent disorder to disable investigation, the law enforcement agencies consider it essential to be able to continue to collect evidence through use of the same covert techniques. Indeed, the use of covert techniques is now the major component of operations targeting criminals at all levels. The agencies argue strongly from experience that failure to maintain effective covert capability would fatally undermine the national law enforcement effort.

The 'techniques' to which this document refers are:

• the use of informants: that is the ability to gain access to and exploit the knowledge held by criminals themselves about who is responsible for crime, and to take advantage of the access to criminals and criminal organisations which criminal informants have;

• the conduct of human and technical surveillance operations: that is the ability to monitor the movements of active criminals by watching or listening in person and electronically in order to provide the best available evidence of their participation in crime;

• the conduct of 'undercover' operations: that is the ability to infiltrate criminal organisations with officers who pose as criminals, or to induce criminals to reveal themselves through what are commonly called 'sting' operations;

• the interception of communications and accessing of communications data: that is the ability to monitor criminals' use of communications systems, as a means of uncovering their associations, movements and criminal behaviour;

• the dissemination of intelligence between agencies with law enforcement responsibilities: that is the ability to bring a 'whole law enforcement' solution to criminal activity, harnessing the expertise and resources of different agencies to the job of putting criminals and criminal undertakings out of business. Such sharing of information and cross-matching of data held by law enforcement agencies helps also to ensure accuracy in the targeting of criminals and the most effective use of investigative resources.

The continuing effectiveness of some of those techniques may be undermined by their exposure in court proceedings. The agencies therefore seek also the continuing protection of the principle of public interest immunity for such sensitive covert techniques. The application to all such investigations of the standards described in the following pages is an appropriate balance to operational secrecy.

Ethical precepts

The law enforcement agencies are committed to standards of conduct in covert operations that accord with the requirements of the European Convention on Human Rights (ECHR). In particular, in addition to the legal requirements relating to 'intrusive surveillance' in Part III of the Police Act 1997, and the requirements of the Interception of Communications Act 1985 and the Wireless Telegraphy Act 1949 concerning interception of communications, they will:

• only carry out proactive operations (targeting) against individuals where justified on the grounds set out in Part 3 below;

• ensure that all such operations are appropriately authorised and that the grounds for authorisation are recorded;

• ensure that the information or evidence collected during such operations is properly recorded;

• ensure that information about individuals is only retatnei and access to it only given where a legitimate need can be established.
  

Integrity in process

The following specific commitments to standards give effect to the fundamental ethical precepts set out above:

• justification - the law enforcement agencies win establish 'sufficient cause', based on a suspect's previous criminal history or on reasonable suspicion of criminal activity or association, before collecting and recording personal information on the suspect in intelligence systems;

• proportionality - the 'covert techniques' referred to in this document will be applied only where criminal activity is sufficiently serious to justify the degree of intrusion into privacy which the technique entails;

• necessity - the 'covert techniques' referred to in this document will be applied only where it appears that what the action seeks to achieve could not reasonably be achieved by other means;

• accuracy - the provenance, accuracy and value of such information )will be assessed and recorded, subject to the proviso that, where a requirement to protect a sources identity arises, access to source identity may be restricted;

• review - where authorisation is given to target an individual for the collection of intelligence or evidence, that investigation will be subject to appropriate reviews of the requirement to continue; the agencies do not favour the introduction of independent, external authorisation of covert activity beyond that currently required by law. The volume and speed of activity involving the use of informants, basic surveillance and the exchange of intelligence between agencies make such a proposal impractical. The agencies are, however, committed to scrutiny of adherence to the declared standards;

• security - personal information recorded in intelligence systems will be maintained in such a manner as to ensure security and prevent unauthorised disclosure;

• integrity - information recorded in digital format will be stored in such a manner as to prevent unauthorised maninulation of the data;

public interest immunity - in accordance with the law, the police and HM Customs and Excise will continue to apply in the Courts, or to the Lord Advocate in Scotland, for public interest immunity to be granted to informants, confidential sources and information, or to sensitive covert techniques. Such applications will, however, be made only where there are grounds to believe that harm to informants or other sources will follow from disclosure of their identities or where disclosure would damage the future effectiveness of a covert investigative technique or would harm an ongoing investigation.

Maintenance, complaints and redress

The law enforcement agencies will maintain the standards set out in this paper and provide facilities for the reception and investigation of complaints about breaches of privacy and provide means for redress.

Officers engaged upon investigations embracing the covert techniques described will be adequately trained in those techniques and in the legal and ethical considerations which concern them.

Tbe agencies provide a complaints and investigation procedure where none is otherwise provided by law, in respect of complaints of invasions of privacy under Article 8 of the ECHR.

The police service and HM Customs and Excise provide redress for established cases of unjustified invasion of privacy. The agencies nevertheless reject the principle of notifying persons who have been the subject of covert investigation following the conclusion of the investigation. Such notifications would, it is believed, provide serious criminals with valuable insights into the conduct of covert investigations, the deployment of police and HM Customs and Excise resources, and weaken the ability to protect sources of intelligence.

The agencies welcome the opportunity to regulate their covert activity according to the precepts of the ECHR. Such regulation has already been established in many areas and will be consolidated by the publication of codes of practice governing all covert techniques which will supplement the regulation provided currently by law. Each police force and HM Customs and Excise will appoint an officer of chief officer rank who will be responsible for the maintenance of the standards herein.

Transcription and HTML by Cryptome.