Necessity (Code 2.4 - 2.5)
The surveillance must be considered necessary to achieve the aims of the investigation, and for that the authorising officer must have one of the statutory grounds for believing this.

Those grounds are: detailed in Section 28, paragraphs 2 and 3.

28(2). A person shall not grant an authorisation for the carrying out of directed surveillance unless he believes;

(a) that the authorisation is necessary on grounds falling within subsection (3); and

(b) that the authorised surveillance is proportionate to what is sought to be achieved by carrying it out.

28(3). An authorisation is necessary on grounds falling within this subsection if it is necessary:-

(a) in the interests of national security;

(b) for the purposes of preventing or detecting crime, or of preventing disorder;

(c) in the interests of the economic well-being of the United Kingdom;

(d) in the interests of public safety;

(e) for the purposes of protecting public health;

(f) for the purposes of assessing or collecting any tax, duty, levy or other imposition, contribution or charge payable to a government department; or

(g) for any purpose (not falling within (a) to (f) which is specified for the purposes of this subsection by an order made by the Secretary of State.

So, once the grounds under Section 28(3) are satisfied, the authorising officer must then still have reason to believe that the use of the surveillance 'tool' is proportionate to what it is hoped to achieve. The Code of Practice says that 'this involves balancing the intrusiveness of the activity on the target and others who might be affected by it against the need for the activity in operational terms.' Code 2.5)

If the activity is considered excessive in the circumstances, it shall not be authorised, and any surveillance undertaken through a mistaken authorisation may be inadmissible in court.

The Codes go on to add that 'all such activity should be carefully managed to meet the objective in question and must not be arbitrary or unfair.' (Code 2.5)

This is an ongoing responsibility, and is addressed by the requirement that regular reviews and renewals are undertaken for each surveillance. (For details, see post)

Collateral Intrusion. (Code 2.6- 2.10)
In any surveillance, it is almost inevitable that the surveillants (those conducting the operation) will observe activities of persons not subject to the operation or investigation. This is collateral intrusion - intrusion that is inevitable, but which must, under the Act, be minimised.

If collateral intrusion cannot be limited to the minimum, then the surveillance may not be authorised. In accepting that collateral intrusion is impossible to prevent, the Act and the Codes merely require that 'measures should be taken, wherever practicable, to avoid or minimise intrusion into the lives of those not directly connected with the investigation or operation.' (Code 2.6)

This is done by assessing the risk of that collateral intrusion, and placing the result of that assessment on the application for the authorisation.

Furthermore, once the surveillance begins, those conducting it have a responsibility to report any incidents of unexpected collateral intrusion to the authorising officer. If the authorisation needs to be reconsidered and/or amended, that will then take place.

In these politically sensitive times, community awareness also has an influence on this element of an authorisation. If there are any issues surrounding the community within which the surveillance is to take place, or knowledge of any similar activities being conducted by other public authorities that could have an influence on the deployment of the surveillance operatives, those other authorities (particularly local police agencies) should be informed.

Combined authorisations are permitted, e.g. where directed surveillance is combined with intrusive surveillance.

Where one organisation seeks surveillance action by another (e.g. MI5 seeks surveillance action by the Police), it is the responsibility of the tasker to obtain authorisation for the taskee. (Code 2.11 to 2.13)

Authorisations will be centrally recorded within the public authority granting such authority. The precise nature of the data to be recorded is laid out in Codes 2.14 and 2.15. Paperwork will be retained for as long as disclosure, data protection, and/or the potential for civil redress require. (Code 2.16 to 2.18)

The Code of Practice for Surveillance goes into detail on the process for obtaining and granting surveillance authorities. For the purposes of this module, an outline will be laid out.

• An application form containing details of the grounds as per Section 28 will be completed by the person seeking the authority.
• The authorising officer (who should not be involved in the operation, but this is not prohibited if the situation is unavoidable) will satisfy himself that the grounds for surveillance apply, and that the proportionality, necessity, justification and collateral intrusion issues have been addressed in the application. (The exact content to be included in the application is written down in the Code of Practice, section 4.16)
• If the authorising officer is so satisfied, he will grant the application. This shall be in writing, unless the application is urgent, in which case a written authorisation will be made as soon as possible afterwards. In any case, the applicant will make a written statement as to the verbal authority and the circumstances leading to it. Urgency arising through neglect does not justify a verbal authority.
• The written authorisation is valid for three months. A verbal authorisation is valid for 72 hours.
• A Review will take place regularly. The Public Authority may dictate how often this period should be. (Police use a month as the period for review.)
• A Renewal will take place every three months.
• Both reviews and renewals require that the application be reassessed, and continuations shall be granted only if the authorisation continues to meet the criteria for authorisation.
• If the grounds for the application no longer apply, the authorisation ceases. Surveillance must cease once the authorisation is withdrawn.

The process for obtaining an authorisation for intrusive surveillance is similar, but requires that the OSC be informed, and their approval sought.

There is no distinction between static and mobile surveillance in authorisation terms.

This module will not address authorisation for entry on, or interference with property, or with wireless telegraphy. This is because such activities are essentially specialist activities undertaken by investigators only within the public sector, and rarely within the private sector. The practical elements of the authorisation process are essentially the same, however, with different levels of authorising officer involved, and the involvement of the independent Office of the Surveillance Commissioner.

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