Investigatory Powers Commissioner’s Annual Report 2019
12.23
Some recurring themes, in both formal recommendations or point-of-learning observations,
appear throughout inspections in 2019 for both surveillance and property interference.
Most prevalent was the consideration of proportionality and associated collateral intrusion;
we felt that in some cases the records did not fully address the material required for
the AO to make an informed decision in granting the authorisation.28 In these cases, the
proportionality argument was usually templated or generic, with most authorising a broad
range of tactics without due consideration for each. In direct contrast, a few directed
surveillance authorisations were found to be so tightly drawn that errors had occurred.
A certain degree of flexibility in the scope of the authorisation should allow authorising
officers sufficient oversight while leaving room for trained surveillance officers to work
effectively during dynamic operations. We also found issues with review documentation at
some forces; reviews often repeated the original intelligence case and did not address the
ongoing necessity and proportionality of the tactics requested as identified in previous IPCO
reporting. This information is essential for the AO to determine whether it is necessary
to continue the operation, irrespective of whether it had been necessary to initiate it in
the first place.
12.24
There were several forces where the processes for urgent applications for both surveillance
and property interference fell below the standards expected, which was contrary to our
findings from the previous year. Usually this was due either to a breakdown in the recording
process between applicant and authorising officer, or to the urgency criteria not being met
or stipulated. We expect to see a significant improvement in this area at these forces in
2020; it is essential that records clearly set out why the urgency provisions are being used
and how the relevant case meets the threshold for urgency. In urgent cases, records may be
informal, and will often be documented outside of the usual workflow system or application
template, but they must still be thorough. We were impressed by the records we examined
at one force, which had excellent documentation clearly demonstrating the requirement for
applying for authorisations during dynamic deployments.
12.25
A feasibility study providing detailed explanation of the proposed technical covert activity
was omitted by a number of forces when submitting applications to the AO. The AO should
fully understand the capabilities of any equipment being deployed when authorising
such activity.
12.26
There has been an exponential growth of online activity by LEAs, particularly in relation
to open source and social media. There is good evidence of a robust approach to the
management of this tactic in some force areas. Yet, there is a risk of status drift into
directed surveillance in those forces and regional units where there is no overarching
method of identifying all of the product captured. We will focus on this area at future
inspections to ensure that online surveillance is properly identified and authorised, and
that material is properly handled.
12.27
As in previous reports, we continue to see applications in some forces that are overly
lengthy and we will continue to make recommendations or observations in this area. We
have also found this issue in relation to the approving officer comments, normally the
force AO, on applications destined for authorisation by the Senior AO. There is no statutory
requirement for this in property interference and intrusive surveillance applications and
any comments made should only add issues of real value to support the application.
28 The Codes of Practice for Surveillance and Property Interference Chapter 4 paragraph 4.7 and paragraphs
4.11 to 4.13 fully explain the rationale that the authorising officer needs to consider before granting
an authorisation.
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