Investigatory Powers Commissioner’s Annual Report 2019
for undercover operatives was introduced largely because of the need to have better
governance regarding the relationships that were formed during face-to-face deployments
and we therefore think it is important that the guidance in the CoP on this issue is clear
and followed appropriately. In our view, there should be a presumption towards renewal
in these longer running cases, and we have provided the Home Office with a suggested
revision to the CoP for their consideration.
12.19
We have found that there is a lack of consistency in the approach taken by different forces
in relation to long-term operations. We are concerned that in some cases authorisations
may repeatedly be cancelled just prior to the twelve-month point rather than being
renewed in the longer term. We raised any such cases for discussion at inspection and are
consulting with the Home Office to address this area of guidance in the CoP.
Long-term undercover operations
We have identified that the current guidance in relation to long-term undercover operations
is causing some confusion and differences in approach across law enforcement agencies. This
relates to situations where the operative(s) has been deployed for a cumulative period of twelve
months. The authorising officer must decide whether to renew the existing authorisation, or to
cancel the authorisation and grant a new one. The former would entail seeking authorisation
from a Chief Constable (or equivalent) and the prior approval of a Judicial Commissioner; the
latter would revert to an authorisation by an Assistant Chief Constable.
The revised covert human intelligence sources (CHIS) Code of Practice (CoP) gives some
guidance as to the factors to be considered when deciding whether the relevant source is
authorised as part of the ‘same investigation or operation’ but the guidance is not explicit
enough to allow it to be applied consistently by all forces conducting undercover operations.
12.20
We also noted that there is a lack of consistency with the supporting documentation in
relation to the briefing, debriefing and record of contact and management of undercover
operatives. RIPA and associated provisions are not prescriptive on format, but there is a
marked inconsistency in the nature of records that we see during inspections. We also
found that there is a good deal of unnecessary repetition in these records. We hope to see
an improvement in this area over the coming year.
Surveillance and property interference
12.21
As expected, due to the introduction of the IPA, which became effective for law
enforcement on 5 December 2018, the number of property interference applications has
substantially reduced and been replaced by applications for equipment interference (EI).
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