Office of Public Sector Information
Authorisation of surveillance and human intelligence sources
The Bill for this Act of the Scottish Parliament was passed by the Parliament on 7th September 2000 and received Royal Assent on 28th September 2000
An Act of the Scottish Parliament to regulate surveillance and the use of covert human intelligence sources.
(1) This Act applies to the following conduct—
(a) directed surveillance;
(b) intrusive surveillance; and
(c) the conduct and use of covert human intelligence sources.
(2) For the purposes of this Act surveillance is directed if it is covert but not intrusive and is undertaken—
(a) for the purposes of a specific investigation or a 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 this Act to be sought for the carrying out of the surveillance.
(3) Subject to subsections (4) and (5) below, surveillance is intrusive for the purposes of this Act if, and only if, it is 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.
(4) For the purposes of this Act surveillance is not intrusive to the extent that it is carried out by means only of a surveillance device designed or adapted principally for the purpose of providing information about the location of a vehicle.
(5) For the purposes of this Act surveillance which—
(a) is carried out by means of a surveillance device in relation to anything taking place on any residential premises or in any private vehicle; but
(b) is carried out without that device being present on the premises or in the vehicle,
is not intrusive unless the device is such that it consistently provides information of the same quality and detail as might be expected to be obtained from a device actually present on the premises or in the vehicle.
(6) In this Act—
(a) references to the conduct of a covert human intelligence source are references to any conduct of such a source which falls within any of paragraphs (a) to (c) of subsection (7) below, or is incidental to anything falling within any of those paragraphs; and
(b) references to the use of a covert human intelligence source are references to inducing, asking or assisting a person to engage in the conduct of such a source, or to obtain information by means of the conduct of such a source.
(7) For the purposes of this Act a person is a covert human intelligence source if the person—
(a) establishes or maintains a personal or other relationship with another person for the covert purpose of facilitating the doing of anything falling within paragraph (b) or (c) below;
(b) covertly uses such a relationship to obtain information or to provide access to any information to another person; or
(c) covertly discloses information obtained by the use of such a relationship or as a consequence of the existence of such a relationship.
(8) For the purposes of this section—
(a) surveillance is covert if, and only if, it is carried out in a manner that is calculated to ensure that persons who are subject to the surveillance are unaware that it is or may be taking place;
(b) a purpose is covert, in relation to the establishment or maintenance of a personal or other relationship, if and only if the relationship is conducted in a manner that is calculated to ensure that one of the parties to the relationship is unaware of the purpose; and
(c) a relationship is used covertly, and information obtained as mentioned in subsection (7)(c) above is disclosed covertly, if and only if it is used or, as the case may be, disclosed in a manner that is calculated to ensure that one of the parties to the relationship is unaware of the use or disclosure in question.
(9) In this section “private information”, in relation to a person, includes any information relating to the person’s private or family life.
(10) References in this section, in relation to a vehicle, to the presence of a surveillance device in the vehicle include references to its being located on or under the vehicle and also include references to its being attached to it.
(1) The Scottish Ministers shall appoint for the purposes of this Act—
(a) a Chief Surveillance Commissioner; and
(b) such number of other Surveillance Commissioners as the Scottish Ministers think fit.
(2) The persons appointed under subsection (1) above shall be persons who hold or have held high judicial office within the meaning of the Appellate Jurisdiction Act 1876 (c. 59).
(3) Subject to subsections (4) to (7) below, each Surveillance Commissioner shall hold and vacate office in accordance with the terms of his appointment.
(4) Each Surveillance Commissioner shall be appointed for a term of three years.
(5) A person who ceases to be a Surveillance Commissioner (otherwise than under subsection (7) below) may be reappointed under this section.
(6) Subject to subsection (7) below, a Surveillance Commissioner shall not be removed from office before the end of the term for which that Commissioner is appointed unless a resolution approving the removal has been passed by the Scottish Parliament.
(7) A Surveillance Commissioner may be removed from office by the Scottish Ministers if after his appointment—
(a) a bankruptcy order is made against the Commissioner or the Commissioner’s estate is sequestrated or the Commissioner makes a composition or arrangement with, or grants a trust deed for, the Commissioner’s creditors;
(b) a disqualification order under the Company Directors Disqualification Act 1986 (c. 46) or Part II of the Companies (Northern Ireland) Order 1989 (S.I. 1989/2404 (N.I.18)), or an order under section 429(2)(b) (failure to pay under county court administration order) of the Insolvency Act 1986 (c. 45), is made against the Commissioner; or
(c) the Commissioner is convicted in the United Kingdom, the Channel Islands or the Isle of Man of an offence and is sentenced to imprisonment (whether suspended or not).
(8) The Scottish Ministers shall pay to each Surveillance Commissioner such allowances as the Scottish Ministers consider appropriate.
(9) The Scottish Ministers may, after consultation with the Chief Surveillance Commissioner, provide the Commissioners with such staff as the Scottish Ministers consider necessary for the discharge of the Commissioners' functions.
(10) The decisions of the Chief Surveillance Commissioner or, subject to section 16 below, any other Surveillance Commissioner (including decisions as to jurisdiction) shall not be subject to appeal or liable to be questioned in any court.
(1) The Scottish Ministers may, after consultation with the Chief Surveillance Commissioner as to numbers, appoint as Assistant Surveillance Commissioners such number of persons as the Scottish Ministers consider necessary (in addition to the ordinary Surveillance Commissioners) for the purpose of providing the Chief Surveillance Commissioner with assistance under this section.
(2) A person shall not be appointed as an Assistant Surveillance Commissioner unless that person holds or has held office as—
(a) a sheriff;
(b) a judge of the Crown Court in England and Wales or a Circuit judge there; or
(c) a county court judge in Northern Ireland.
(3) The Chief Surveillance Commissioner may require any ordinary Surveillance Commissioner or any Assistant Surveillance Commissioner to provide him with assistance in carrying out that Chief Surveillance Commissioner’s functions under this Act.
(4) The assistance that may be provided under this section includes—
(a) the conduct on behalf of the Chief Surveillance Commissioner of the review of any matter; and
(b) the making of a report to the Chief Surveillance Commissioner about the matter reviewed.
(5) Subsections (3) to (8) of section 2 above apply in relation to a person appointed under this section as they apply in relation to a person appointed under that section.
(1) Anything authorised or required by or under this Act to be done by a relevant Commissioner may be done by any member of the staff of that Commissioner who is authorised for the purpose (whether generally or specifically) by that Commissioner.
(2) In this section “relevant Commissioner” means any Surveillance Commissioner or Assistant Surveillance Commissioner.
(1) Conduct to which this Act applies shall be lawful for all purposes if—
(a) an authorisation under this Act confers an entitlement to engage in that conduct on the person whose conduct it is; and
(b) that person’s conduct is in accordance with the authorisation.
(2) A person shall not be subject to any civil liability in respect of any conduct of that person which—
(a) is incidental to any conduct that is lawful by virtue of subsection (1) above; and
(b) is not itself conduct an authorisation or warrant for which is capable of being granted under a relevant enactment and might reasonably have been expected to have been sought in the case in question.
(3) In this section “relevant enactment” means—
(a) an enactment contained in this Act; or
(b) an enactment contained in Part III of the Police Act 1997 (c. 50) (authorisation of interference with property and wireless telegraphy) insofar as relating to a police force.
(1) Subject to the following provisions of this Act, the persons designated for the purposes of this section shall each have power to grant authorisations for the carrying out of directed surveillance.
(2) A person shall not grant an authorisation for the carrying out of directed surveillance unless that person is satisfied—
(a) that the authorisation is necessary on grounds falling within subsection (3) below; and
(b) that the authorised surveillance is proportionate to what is sought to be achieved by carrying it out.
(3) An authorisation is necessary on grounds falling within this subsection if it is necessary—
(a) for the purpose of preventing or detecting crime or of preventing disorder;
(b) in the interests of public safety; or
(c) for the purpose of protecting public health.
(4) The conduct that is authorised by an authorisation for the carrying out of directed surveillance is any conduct that—
(a) consists in the carrying out of directed surveillance of any such description as is specified in the authorisation; and
(b) is carried out in the circumstances described in the authorisation and for the purposes of the investigation or operation specified or described in the authorisation.
(1) Subject to the following provisions of this Act, the persons designated for the purposes of this section shall each have power to grant authorisations for the conduct or the use of a covert human intelligence source.
(2) A person shall not grant an authorisation for the conduct or the use of a covert human intelligence source unless that person is satisfied—
(a) that the authorisation is necessary on grounds falling within subsection (3) below;
(b) that the authorised conduct or use is proportionate to what is sought to be achieved by that conduct or use; and
(c) that arrangements exist for the source’s case that satisfy the requirements of subsection (6) below and such other requirements as may be imposed by order made by the Scottish Ministers.
(3) An authorisation is necessary on grounds falling within this subsection if it is necessary—
(a) for the purpose of preventing or detecting crime or of preventing disorder;
(b) in the interests of public safety; or
(c) for the purpose of protecting public health.
(4) The Scottish Ministers may by order—
(a) prohibit the authorisation under this section of any such conduct or uses of covert human intelligence sources as may be described in the order; and
(b) impose requirements, in addition to those provided for by subsection (2) above, that must be satisfied before an authorisation is granted under this section for any such conduct or uses of covert human intelligence sources as may be described.
(5) The conduct that is authorised by an authorisation for the conduct or the use of a covert human intelligence source is any conduct that—
(a) is comprised in any such activities involving conduct of a covert human intelligence source, or the use of a covert human intelligence source, as are specified or described in the authorisation;
(b) consists in conduct by or in relation to the person who is so specified or described as the person to whose actions as a covert human intelligence source the authorisation relates; and
(c) is carried out for the purposes of, or in connection with, the investigation or operation so specified or described.
(6) For the purposes of this Act there are arrangements for the source’s case that satisfy the requirements of this subsection if such arrangements are in force as are necessary for ensuring—
(a) that there will at all times be a person holding an office, rank or position with the relevant investigating authority who will have day-to-day responsibility for dealing with the source on behalf of that authority, and for the source’s security and welfare;
(b) that there will at all times be another person holding an office, rank or position with the relevant investigating authority who will have general oversight of the use made of the source;
(c) that there will at all times be a person holding an office, rank or position with the relevant investigating authority who will have responsibility for maintaining a record of the use made of the source;
(d) that the records relating to the source that are maintained by the relevant investigating authority will always contain particulars of all such matters (if any) as may be specified for the purposes of this paragraph in regulations made by the Scottish Ministers; and
(e) that records maintained by the relevant investigating authority that disclose the identity of the source will not be available to persons except to the extent that there is a need for access to them to be made available to those persons.
(7) In this section “relevant investigating authority”, in relation to an authorisation for the conduct or the use of an individual as a covert human intelligence source, means (subject to subsection (8) below) the public authority for whose benefit the activities of that individual as such a source are to take place.
(8) In the case of any authorisation for the conduct or the use of a covert human intelligence source whose activities are to be for the benefit of more than one public authority, the references in subsection (6) above to the relevant investigating authority are references to one of them (whether or not the same one in the case of each reference).
(1) Subject to subsection (2) below, the persons designated for the purposes of sections 6 and 7 above are the individuals holding such offices, ranks or positions with relevant public authorities as are prescribed for the purposes of this subsection by order made by the Scottish Ministers.
(2) The Scottish Ministers may by order impose restrictions—
(a) on the authorisations under sections 6 and 7 above that may be granted by any individual holding an office, rank or position with a specified public authority; and
(b) on the circumstances in which, or the purposes for which, such authorisations may be granted by any such individual.
(3) A public authority is a relevant public authority for the purposes of this section in relation to sections 6 and 7 above if it is—
(a) a police force;
(b) the Scottish Administration;
(c) a council constituted under section 2 of the Local Government etc. (Scotland) Act 1994 (c. 39);
(d) the Common Services Agency for the Health Service;
(e) a health board;
(f) a special health board;
(g) a National Health Service trust established under section 12A of the National Health Service (Scotland) Act 1978 (c. 29);
(h) the Scottish Environment Protection Agency.
(4) The Scottish Ministers may by order amend subsection (3) above by—
(a) adding a public authority to those enumerated in that subsection;
(b) removing a public authority therefrom;
(c) making any change consequential on any change in the name of a public authority enumerated therein.
(5) No order shall be made under subsection (4)(a) above unless it has been laid in draft before and approved by resolution of the Scottish Parliament.
(1) In this Act, the “Scottish Crime Squad” means the joint operation known by that name and established by agreement among the chief constables of the Scottish police forces and police authorities made under section 12 of the Police (Scotland) Act 1967 (c. 77) and in force at the date of Royal Assent to this Act or any other joint operation, howsoever named, established by agreement under that section and which fulfils purposes most or all of which consist of or include purposes which are the same as or similar to those fulfilled by the Scottish Crime Squad.
(2) Sections 6 to 8 above and 19 to 32 below apply to the Scottish Crime Squad and constables seconded to it as if it were a public authority specified in section 8(3) above.
(3) For the purposes of subsection (2) above, the Scottish Ministers shall prescribe, under subsection (1) of section 8 above, offices, ranks or positions with the Scottish Crime Squad corresponding to those they prescribe in relation to police forces under that subsection of that section.
(4) A person who is a designated person for the purposes of section 6 or 7 above by reference to the office, rank or position with the Scottish Crime Squad held by that person shall not grant an authorisation under that section except on an application made by a constable seconded to that Squad.
(5) For the purposes of subsections (2) and (3) above, references in this Act to a person’s office, rank or position with the Scottish Crime Squad shall be taken as references to that person’s office, rank or position with the police force from which that person is seconded.
(6) This section has effect only for the purposes of enabling and regulating the grant and cancellation of authorisations under this Act within the Scottish Crime Squad; accordingly, it does not otherwise affect the constitution of the Scottish Crime Squad, or the functions of constables seconded to it or the liabilities of the chief constables of the police forces from which those constables are seconded.
(1) Subject to the following provisions of this Act, the chief constable of every police force shall have power to grant authorisations for the carrying out of intrusive surveillance.
(2) No such authorisation shall be granted unless the chief constable granting it is satisfied—
(a) that the authorisation is necessary for the purpose of preventing or detecting serious crime; and
(b) that the authorised surveillance is proportionate to what is sought to be achieved by carrying it out.
(3) The matters to be taken into account in considering whether the requirements of subsection (2) above are satisfied in the case of any authorisation shall include whether the information which it is thought necessary to obtain by the authorised conduct could reasonably be obtained by other means.
(4) The conduct that is authorised by an authorisation for the carrying out of intrusive surveillance is any conduct that—
(a) consists in the carrying out of intrusive surveillance of any such description as is specified in the authorisation;
(b) is carried out in relation to the residential premises specified or described in the authorisation or in relation to the private vehicle so specified or described; and
(c) is carried out for the purposes of, or in connection with, the investigation or operation so specified or described.
(1) A person who is a designated person for the purposes of section 6 or 7 above by reference to the office, rank or position with a police force held by that person shall not grant an authorisation under that section except on an application made by a member of the same force.
(2) A chief constable of a police force shall not grant an authorisation for the carrying out of intrusive surveillance except—
(a) on an application made by a member of the same force; and
(b) in the case of an authorisation for the carrying out of intrusive surveillance in relation to any residential premises, where those premises are in the area of operation of that force.
(3) A chief constable of a police force may grant an authorisation for the carrying out of intrusive surveillance on the application of a constable seconded to the Scottish Crime Squad if—
(a) in the case of an authorisation for the carrying out of intrusive surveillance in relation to any residential premises, those premises are in; and
(b) in the case of an authorisation for the carrying out of intrusive surveillance in relation to any private vehicle, the chief constable is satisfied that the surveillance operation will commence in,
the area of operation of that chief constable’s police force.
(4) A single authorisation may combine both—
(a) an authorisation granted under this Act by, or on the application of, an individual who is a member of a police force; and
(b) an authorisation given by, or on the application of, that individual under Part III of the Police Act 1997 (c. 50) (authorisation of interference with property and wireless telegraphy) insofar as relating to a police force,
but the provisions of this Act or the 1997 Act that are applicable in the case of each of the authorisations shall apply separately in relation to the part of the combined authorisation to which they are applicable.
(5) For the purposes of this section, the area of operation of a police force is the area for which that force is maintained.
(1) This section applies in the case of an application for an authorisation for the carrying out of intrusive surveillance where the case is urgent.
(2) If it is not reasonably practicable, having regard to the urgency of the case—
(a) for the application to be considered by the chief constable of the police force in question; and
(b) for the application to be considered by a person (if there is one) who is entitled, as a designated deputy of that chief constable, to exercise the functions in relation to that application of that chief constable,
the application may be made to and considered by any person who is entitled under subsection (4) below to act for that chief constable.
(3) A person who considers an application under subsection (1) above shall have the same power to grant an authorisation as the person for whom the person considering the application is entitled to act.
(4) For the purposes of this section a person is entitled to act for the chief constable of a police force if the person holds the rank of assistant chief constable in that force.
(5) In this section “designated deputy”, in relation to a chief constable, means a person holding the rank of assistant chief constable who is designated to act under section 5(4) of the Police (Scotland) Act 1967 (c. 77).
(1) Where a person grants or cancels an authorisation for the carrying out of intrusive surveillance, the person shall give notice of the grant or cancellation to an ordinary Surveillance Commissioner.
(2) A notice given for the purposes of subsection (1) above—
(a) must be given in writing as soon as reasonably practicable after the grant or, as the case may be, cancellation of the authorisation to which it relates;
(b) must be given in accordance with any such arrangements made for the purposes of this paragraph by the Chief Surveillance Commissioner as are for the time being in force; and
(c) must specify such matters as the Scottish Ministers may by order prescribe.
Regulation of Investigatory Powers (Scotland) Act 2000