SCHEDULE
1
(Article 1)
Code of practice on interception of
communications
CONTENTS
CHAPTER 1 GENERAL
CHAPTER 2 GENERAL
RULES ON INTERCEPTION WITH A WARRANT
CHAPTER 3 SPECIAL
RULES ON INTERCEPTION WITH A WARRANT
CHAPTER 4 INTERCEPTION
WARRANTS (ARTICLE 12(1))
CHAPTER 5 INTERCEPTION
WARRANTS (ARTICLE 12(4))
CHAPTER 6 SAFEGUARDS
CHAPTER 7 DISCLOSURE
TO ENSURE FAIRNESS IN CRIMINAL PROCEEDINGS
CHAPTER 8 OVERSIGHT
CHAPTER 9 COMPLAINTS
CHAPTER 10 INTERCEPTION WITHOUT A
WARRANT
1 GENERAL
1.1 This
code of practice relates to the powers and duties conferred or imposed under
Chapter 1 of Part 1 of the Regulation of Investigatory Powers (Jersey) Law 2005
(the “Law”). It provides guidance on the procedures that must be
followed before interception of communications can take place under those
provisions. It is primarily intended for use by those public authorities listed
in Article 11 of the Law. It will also prove useful to postal and
telecommunication operators and other interested bodies to acquaint themselves
with the procedures to be followed by those public authorities.
1.2 The
Law provides that all codes of practice relating to the Law are admissible as
evidence in criminal and civil proceedings. If any provision of this code appears
relevant before any court or tribunal considering any such proceedings, or to
the Tribunal established under the Law, or to the Commissioner responsible for
overseeing the powers conferred by the Law, it must be taken into account.
2 GENERAL
RULES ON INTERCEPTION WITH A WARRANT
2.1 There
are a limited number of persons by whom, or on behalf of whom, applications for
interception warrants may be made. These persons are:
· Chief
Officer, States of Jersey Police;
· Agent
of the Impôts;
· Chief
Inspector of Immigration;
· Director-General
of the Security Services;
· Chief
of the Secret Intelligence Services;
· Director
of GCHQ;
· Chief
of the Defence Intelligence Services;
· A
person who, for the purposes of any international mutual assistance agreement,
is the competent authority of a country or territory outside Jersey.
2.2 All
interception warrants are issued by the Attorney General.
2.3 Before
issuing an interception warrant, the Attorney General must believe that what
the action seeks to achieve is necessary for one of the following Article 10(3)
purposes:
· in
the interests of national security;
· for
the purpose of preventing or detecting serious crime;
· for
the purpose of safeguarding the economic well-being of Jersey; or
· for
the purpose of giving effect to any international mutual assistance treaty;
and that the conduct authorized by the warrant is proportionate to
what is sought to be achieved by that conduct.
Necessity and Proportionality
2.4 Obtaining
a warrant under the Law will only ensure that the interception authorized is a
justifiable interference with an individual’s rights under Article 8 of
the European Convention of Human Rights (the right to privacy) if it is
necessary and proportionate for the interception to take place. The Law
recognises this by first requiring that the Attorney General believes that the authorization
is necessary on one or more of the statutory grounds set out in Article 10(3)
of the Law. This requires the Attorney General to believe that it is necessary
to undertake the interception which is to be authorized for a particular
purpose falling within the relevant statutory ground.
2.5 Then,
if the interception is necessary, the Attorney General must also believe that
it is proportionate to what is sought to be achieved by carrying it out. This
involves balancing the intrusiveness of the interference, against the need for
it in operational terms. Interception of communications will not be
proportionate if it is excessive in the circumstances of the case or if the information
which is sought could reasonably be obtained by other means. Further, all
interception should be carefully managed to meet the objective in question and
must not be arbitrary or unfair.
Implementation of Warrants
2.6 After
a warrant has been issued it will be forwarded to the person to whom it is
addressed, in practice the intercepting agency which submitted the application.
The Law (Article 15) then permits the intercepting agency to carry out the
interception, or to require the assistance of other persons in giving effect to
the warrant. Warrants cannot be served on those outside Jersey.
Provision of Reasonable Assistance
2.7 Any
postal or telecommunications operator (referred to as communications service
providers) in Jersey may be required to provide assistance in giving effect to
an interception. The Law places a requirement on postal and telecommunications
operators to take all such steps for giving effect to the warrant as are
notified to them (Article 15(4) of the Law). But the steps which may be
required are limited to those which it is reasonably practicable to take
(Article 15(5)). What is reasonably practicable should be agreed after
consultation between the postal or telecommunications operator and the Attorney
General. If no agreement can be reached it will be for the Attorney General to
decide whether to press forward with civil proceedings or whether criminal
proceedings may also be instituted.
2.8 Where
the intercepting agency requires the assistance of a communications service
provider in order to implement a warrant, they should provide the following to
the communications service provider:
· A
copy of the warrant instrument signed and dated by the Attorney General;
· The
relevant schedule for that service provider setting out the numbers, addresses
or other factors identifying the communications to be intercepted;
· A
covering document from the intercepting agency requiring the assistance of the
communications service provider and specifying any other details regarding the
means of interception and delivery as may be necessary. Contact details with
respect to the intercepting agency will either be provided in this covering
document or will be available in the handbook provided to all postal and
telecommunications operators who maintain an intercept capability.
Provision of Intercept Capability
2.9 Whilst
all persons who provide a postal or telecommunications service are obliged to
provide assistance in giving effect to an interception, persons who provide a
public postal or telecommunications service, or plan to do so, may also be
required to provide a reasonable intercept capability (Article 16). The
obligations the Minister for Home Affairs considers reasonable to impose on
such persons to ensure they have such a capability will be set out in an order
made by the Minister. The Minister may then serve a notice upon a
communications service provider setting out the steps they must take to ensure
they can meet these obligations. A notice will not be served without
consultation over the content of the notice between the Minister and the
service provider having previously taken place. When served with such a notice,
a communications service provider, if the provider feels it unreasonable, will
be able to refer that notice to the Technical Advisory Board (TAB) on the
reasonableness of the technical requirements and capabilities that are being
sought. Details of how to submit a notice to the TAB will be provided either
before or at the time the notice is served.
2.10 Any
communications service provider obliged to maintain a reasonable intercept
capability may be provided with written guidance, or a handbook, which will
contain the basic information the provider requires to respond to requests for
reasonable assistance for the interception of communications.
Duration of Interception Warrants
2.11 All
interception warrants are valid for an initial period of 3 months. Upon
renewal, warrants issued on serious crime grounds are valid for a further
period of 3 months. Warrants renewed on national security/economic well-being
grounds are valid for a further period of 6 months.
2.12 Where a change
in circumstance prior to the set expiry date leads the intercepting agency to
consider it no longer necessary or practicable for the warrant to be in force,
it should be cancelled with immediate effect.
Stored Communications
2.13 Article 2(6)
of the Law defines a communication in the course of its transmission as also
encompassing any time when the communication is being stored on the
communication system in such a way as to enable the intended recipient to have
access to it. This means that a warrant can be used to obtain both
communications that are in the process of transmission and those that are being
stored on the transmission system.
2.14 Stored
communications may also be accessed by means other than a warrant. If a
communication has been stored on a communication system it may be obtained with
lawful authority by means of an existing statutory power such as a production
order (under the Police Procedures and Criminal Evidence (Jersey) Law 2003) or
a search warrant.
3 SPECIAL
RULES ON INTERCEPTION WITH A WARRANT
Collateral Intrusion
3.1 Consideration
should be given to any infringement of the privacy of individuals who are not
the subject of the intended interception, especially where communications
relating to religious, medical, journalistic or legally privileged material may
be involved. An application for an interception warrant should draw attention
to any circumstances which give rise to an unusual degree of collateral
infringement of privacy, and this will be taken into account by the Attorney
General when considering a warrant application. Should an interception
operation reach the point where individuals other than the subject of the authorization
are identified a directly relevant to the operation, consideration should be
given to applying for separate warrants covering those individuals.
Confidential Information
3.2 Particular
consideration should also be given in cases where the subject of the
interception might reasonably assume a high degree of privacy, or where
confidential information is involved. Confidential information consists of
matters subject to legal privilege, confidential personal information or
confidential journalistic material (see paragraphs 3.9 ‑ 3.11).
For example, extra consideration should be given where interception might
involve communications between a minister of religion and an individual
relating to the latter’s spiritual welfare, or where matters of medical
or journalistic confidentiality or legal privilege may be involved.
Communications Subject to Legal Privilege
3.3 Article
5 of the Police Procedures and Criminal Evidence (Jersey) Law 2003
describes those matters that are subject to legal privilege.
3.4 Legal
privilege does not apply to communications made with the intention of
furthering a criminal purpose (whether the lawyer is acting unwittingly or
culpably). Legally privileged communications will lose their protection if
there are grounds to believe, for example, that the professional legal advisor
is intending to hold or use the information for a criminal purpose. But
privilege is not lost if a professional legal advisor is properly advising a
person who is suspected of having committed a criminal offence. The concept of
legal privilege applies to the provision of professional legal advice by any
individual, agency or organisation qualified to do so.
3.5 The
Law does not provide any special protection for legally privileged communications.
Nevertheless, intercepting such communications is particularly sensitive and is
therefore subject to additional safeguards under this Code. The guidance set
out below may in part depend on whether matters subject to legal privilege have
been obtained intentionally or incidentally to some other material which has
been sought.
3.6 In
general, any application for a warrant which is likely to result in the
interception of legally privileged communications should include, in addition
to the reasons why it is considered necessary for the interception to take
place, an assessment of how likely it is that communications which are subject
to legal privilege will be intercepted. In addition, it should state whether
the purpose (or one of the purposes) of the interception is to obtain
privileged communications. This assessment will be taken into account by the
Attorney General in deciding whether an interception is necessary under Article
10(3) of the Law and whether it is proportionate. In such circumstances, the Attorney
General will be able to impose additional conditions such as regular reporting
arrangements so as to be able to exercise his or her discretion on whether a
warrant should continue to be authorized. In those cases where communications
which include legally privileged communications have been intercepted and
retained, the matter should be reported to the Commissioner during the
Commissioner’s inspections and the material be made available to the
Commissioner if requested.
3.7 Where
an Advocate or Solicitor or other professional legal adviser is the subject of
an interception, it is possible that a substantial proportion of the
communications which will be intercepted will be between the lawyer and his or
her client(s) and will be subject to legal privilege. Any case where a lawyer
is the subject of an investigation should be notified to the Commissioner
during the Commissioner’s inspections and any material which has been
retained should be made available to the Commissioner if requested.
3.8 In
addition to safeguards governing the handling and retention of intercept
material as provided for in Article 19 of the Law, investigators who examine
intercepted communications should be alert to any intercept material which may
be subject to legal privilege. Where there is doubt as to whether the
communications are subject to legal privilege, advice should be sought from the
Law Officers’ Department. Advice should also be sought where there is
doubt over whether communications are not subject to legal privilege due to the
“in furtherance of a criminal purpose” exception.
Communications involving Confidential
Personal Information and Confidential Journalistic Material
3.9 Similar
consideration to that given to legally privileged communications must also be
given to the interception of communications that involve confidential personal
information and confidential journalistic material. Confidential personal
information is information held in confidence concerning an individual (whether
living or dead) who can be identified from it, and the material in question
relates to the individual’s physical or mental health or to spiritual
counselling. Such information can include both oral and written communications.
Such information as described above is held in confidence if it is held subject
to an express or implied undertaking to hold it in confidence or it is subject
to a restriction on disclosure or an obligation of confidentiality contained in
existing legislation. For example, confidential personal information might include
consultations between a health professional and a patient, or information from
a patient’s medical records.
3.10 Spiritual
counselling is defined as conversations between an individual and a Minister of
Religion acting in his or her official capacity, and where the individual being
counselled is seeking or the Minister is imparting forgiveness, absolution or
the resolution of conscience with the authority of the Divine Being(s) of their
faith.
3.11 Confidential
journalistic material includes material acquired or created for the purposes of
journalism and held subject to an undertaking to hold it in confidence, as well
as communications resulting in information being acquired for the purposes of
journalism and held subject to such an undertaking.
4 INTERCEPTION
WARRANTS (ARTICLE 12(1))
4.1 This
chapter applies to the interception of communications by means of a warrant
complying with Article 12(1) of the Law. This type of warrant may be issued in
respect of the interception of communications carried on any postal service or
telecommunications system as defined in Article 2 of the Law (including a
private telecommunications system). Responsibility for the issuing of
interception warrants rests with the Attorney General.
Application for an Article 12(1) Warrant
4.2 An
application for a warrant is made to the Attorney General. Interception
warrants, when issued, are addressed to the person who submitted the
application. This person may then serve a copy upon any person who may be able
to provide assistance in giving effect to that warrant. Each application, a
copy of which must be retained by the applicant, should contain the following
information:
· Background
to the operation in question.
· Person
or premises to which the application relates (and how the person or premises
feature in the operation).
· Description
of the communications to be intercepted, details of the communications service
provider(s) and an assessment of the feasibility of the interception operation
where this is relevant.
· Description
of the conduct to be authorized as considered necessary in order to carry out
the interception, where appropriate.
· An
explanation of why the interception is considered to be necessary under the
provisions of Article 10(3).
· A
consideration of why the conduct to be authorized by the warrant is
proportionate to what is sought to be achieved by that conduct.
· A
consideration of any unusual degree of collateral intrusion and why that
intrusion is justified in the circumstances. In particular, where the communications
in question might affect religious, medical or journalistic confidentiality or
legal privilege, this must be specified in the application.
· Where
an application is urgent, supporting justification should be provided.
· An
assurance that all material intercepted will be handled in accordance with the
safeguards required by Article 19 of the Law.
Authorization of an Article 12(1) Warrant
4.3 Before
issuing a warrant under Article 12(1), the Attorney General must believe the
warrant is necessary:
· in
the interests of national security;
· for
the purpose of preventing or detecting serious crime; or
· for
the purpose of safeguarding the economic well-being of the United Kingdom.
· For
the purpose of giving effect to the provisions of any international mutual
assistance treaty.
4.4 In
exercising the Attorney General’s power to issue an interception warrant
for the purpose of safeguarding the economic well-being of Jersey (as provided
for by Article 10(3)(c) of the Law), the Attorney General will consider whether
the economic well-being of Jersey which is to be safeguarded is, on the facts
of each case, directly related to national security. The Attorney General will
not issue a warrant on Article 10(3)(c) grounds if this direct link between the
economic well-being of Jersey and national security is not established. Any
application for a warrant on Article 10(3)(c) grounds should therefore explain
how, in the applicant's view, the economic well-being of Jersey which is to be
safeguarded is directly related to national security on the facts of the case.
4.5 The
Attorney General must also consider that the conduct authorized by the warrant
is proportionate to what it seeks to achieve (Article 10(2)(b)). In considering
necessity and proportionality, the Attorney General must take into account
whether the information sought could reasonably be obtained by other means
(Article 10(4)).
Format of an Article 12(1) Warrant
4.6 Each
warrant comprises 2 sections, a warrant instrument signed by the Attorney
General listing the subject of the interception or set of premises, a copy of
which each communications service provider will receive, and a schedule or set
of schedules listing the communications to be intercepted. Only the schedule
relevant to the communications that can be intercepted by the specified
communications service provider will be provided to that service provider.
4.7 The
warrant instrument should include:
· The
name or description of the interception subject or of a set of premises in
relation to which the interception is to take place.
· A
warrant reference number.
· The
persons who may subsequently modify the scheduled part of the warrant in an
urgent case (if authorized in accordance Article 14(5) of the Law).
4.8 The
scheduled part of the warrant will comprise one or more schedules. Each
schedule should contain:
· The
name of the communication service provider, or the other person who is to take
action.
· A
warrant reference number
· A
means of identifying the communications to be intercepted.
Modification of Article 12(1) warrant
4.9 Interception
warrants may be modified under the provisions of Article 14 of the Law. The
unscheduled part of a warrant may only be modified by the Attorney General. The
modification will expire on the expiry date of the warrant.
4.10 Scheduled
parts of a warrant may be modified by the Attorney General in which case the
modification expires on the expiry date of the warrant. A modification to the
scheduled part of the warrant may include the addition of a new schedule
relating to a communication service provider or when a copy of the warrant has
not been previously served. In an urgent case, where the warrant specifically authorizes
it, scheduled parts of a warrant may be modified by the person to whom the warrant
is addressed (the person who submitted the application) or a subordinate (where
the subordinate is identified in the warrant). Modifications of this kind are
valid for 5 working days following the day of issue unless the modification
instrument is endorsed by the Attorney General. Where the modification is
endorsed in this way, the modification expires upon the expiry date of the
warrant.
4.11 There is a
duty to modify a warrant by deleting a communications identifier if it is no
longer relevant. When a modification is sought to delete a number or other
communication identified, the relevant communication service provider must be
advised and the interception suspended before the modification is made.
Renewal of Article 12(1) Warrant
4.12 The Attorney
General may renew a warrant at any point before its expiry date. Applications
for renewals must be made to the Attorney General and should contain an update
of the matters outlined in paragraph 4.2 above. In particular, the applicant
should give an assessment of the value of interception to the operation to date
and explain why the applicant considers that interception continues to be
necessary for one or more of the purposes in Article 10(3).
4.13 Where the
Attorney General is satisfied that the interception continues to meet the
requirements of the Law the Attorney General may renew the warrant. Where the
warrant is issued on serious crime grounds, the renewed warrant is valid for a
further 3 months. Where it is issued on national security/economic well-being
grounds, the renewed warrant is valid for 6 months. These dates run from the
date of signature on the renewal instrument.
4.14 A copy of the
warrant renewal instrument will be forwarded by the intercepting agency to all
relevant communications service providers on whom a copy of the original
warrant instrument and a schedule have been served, providing they are still
actively assisting. A warrant renewal instrument will include the reference
number of the warrant and description of the person or premises described in
the warrant.
Warrant Cancellation
4.15 The Attorney
General is under a duty to cancel an interception warrant if, at any time
before its expiry date, the Attorney General is satisfied that the warrant is
no longer necessary on grounds falling within Article 10(3) of the Law. Intercepting
agencies will therefore need to keep their warrants under continuous review.
4.16 The
cancellation instrument should be addressed to the person to whom the warrant
was issued (the intercepting agency) and should include the reference number of
the warrant and the description of the person or premises specified in the
warrant. A copy of the cancellation instrument should be sent to those
communications service providers who have held a copy of the warrant instrument
and accompanying schedule during the preceding 12 months.
Records
4.17 The
independent scrutiny régime allows the Commissioner appointed under the
Law to inspect the warrant application on which the Attorney General based his
or her decision and the applicant may be required to justify the content. Each
intercepting agency should keep the following to be made available for scrutiny
by the Commissioner as the Commissioner may require:
· all
applications made for warrants complying with Article 12(1) and applications
made for the renewal of such warrants.
· all
warrants, and renewals and copies of schedule modifications (if any).
· where
any application is refused, the grounds for refusal as given by the Attorney
General.
· the
dates on which interception is started and stopped.
4.18 Records shall
also be kept of the arrangements by which the requirements of Article 19(2)
(minimisation of copying and destruction of intercepted material) and Article
19(3) (destruction of intercepted material) are to be met. For further details
see chapter on “Safeguards”.
4.19 The term
“intercepted material” is used throughout to embrace copies,
extracts or summaries made from the intercepted material as well as the
intercept material itself.
5 INTERCEPTION
WARRANTS (ARTICLE 12(4))
5.1 This
chapter applies to the interception of external communications by means of a
warrant complying with Article 12(4) of the Law. External communications are
those which are sent or received outside Jersey. They include those which are
both sent and received outside Jersey, whether or not they pass through Jersey
in course of their transit. They do not include communications both sent and
received in Jersey, even if they pass outside Jersey en route. Responsibility
for the issuing of such interception warrants rests with the Attorney General.
Application for an Article 12(4) Warrant
5.2 An
application for a warrant is made to the Attorney General. Interception
warrants, when issued, are addressed to the person who submitted the
application. This person may then serve a copy upon any person who may be able
to provide assistance in giving effect to that warrant. Each application, a
copy of which must be retained by the applicant, should contain the following
information:
· Background
to the operation in question.
· Description
of the communications to be intercepted, details of the communications service
provider(s) and an assessment of the feasibility of the operation where this is
relevant.
· Description
of the conduct to be authorized, which must be restricted to the interception
of external communications, or to conduct necessary in order to intercept those
external communications, where appropriate.
· The
certificate that will regulate examination of intercepted material.
· An
explanation of why the interception is considered to be necessary for one or
more of the Article 10(3) purposes.
· A
consideration of why the conduct to be authorized by the warrant is
proportionate to what is sought to be achieved by that conduct.
· A
consideration of any unusual degree of collateral intrusion, and why that
intrusion is justified in the circumstances. In particular, where the
communications in question might affect religious, medical or journalistic
confidentiality or legal privilege, this must be specified in the application.
· Where
an application is urgent, supporting justification should be provided.
· An
assurance that intercepted material will be read, looked at or listened to only
so far as it is certified, and it meets the conditions of Articles 20(2) - (6)
of the Law.
· An
assurance that all material intercepted will be handled in accordance with the
safeguards required by Articles 19 and 20 of the Law.
Authorization of an Article 12(4) warrant
5.3 Before
issuing a warrant under Article 12(4), the Attorney General must believe that
the warrant is necessary:
· in
the interests of national security;
· for
the purpose of preventing or detecting serious crime; or
· for
the purpose of safeguarding the economic well-being of Jersey;
5.4 In
exercising the Attorney General’s power to issue an interception warrant
for the purpose of safeguarding the economic well-being of Jersey (as provided
for by Article 10(3)(c) of the Law), the Attorney General will consider whether
the economic well-being of Jersey which is to be safeguarded is, on the facts
of each case, directly related to national security. The Attorney General will
not issue a warrant on Article 10(3)(c) grounds if this direct link between the
economic well-being of Jersey and national security is not established. Any
application for a warrant on Article 10(3)(c) grounds should therefore explain
how, in the applicant's view, the economic well-being of Jersey which is to be
safeguarded is directly related to national security on the facts of the case.
5.5 The
Attorney General must also consider that the conduct authorized by the warrant
is proportionate to what it seeks to achieve (Article 10(2)(b)). In considering
necessity and proportionality, the Attorney General must take into account
whether the information sought could reasonably be obtained by other means
(Article 10(4)).
5.6 When
the Attorney General issues a warrant of this kind, it must be accompanied by a
certificate in which the Attorney General certifies that he or she considers
examination of the intercepted material to be necessary for one or more of the
Article 10(3) purposes. The Attorney General has a duty to ensure that
arrangements are in force for securing that only that material which has been
certified as necessary for examination for an Article 10(3) purpose, and which
meets the conditions set out in Article 20(2) to (6) is, in fact, read, looked
at or listened to. The Commissioner is under a duty to review the adequacy of
those arrangements.
Format of an Article 12(4) Warrant
5.7 Each
warrant is addressed to the person who submitted the application. This person
may then serve a copy upon such providers of communications services as the
person believes will be able to assist in implementing the interception. Communications
service providers will not receive a copy of the certificate.
· The
warrant should include the following:
· A
description of the communications to be intercepted
· The
warrant reference number
· The
persons who may subsequently modify the scheduled part of the warrant in an
urgent case (if authorized in accordance with Article 14(5) of the Law).
Modification of an Article 12(4) warrant
5.8 Interception
warrants may be modified by the Attorney General under the provisions of
Article 14. The modification will expire at the same time as the warrant.
5.9 The
certificate may be modified by the Attorney General. The modification expires
on the expiry of the warrant.
Renewal of an Article 12(4) Warrant
5.10 The Attorney
General may renew a warrant at any point before its expiry date. Applications
for renewals are made to the Attorney General and contain an update of the
matters outlined in paragraph 5.2 above. In particular, the applicant must give
an assessment of the value of interception to the operation to date and explain
why the applicant considers that interception continues to be necessary for one
or more of purposes in Article 10(3).
5.11 Where the
Attorney General is satisfied that the interception continues to meet the
requirements of the Law the Attorney General may renew the warrant. Where the
warrant is issued on serious crime grounds, the renewed warrant is valid for a
further 3 months. Where it is issued on national security/ economic well-being
grounds the renewed warrant is valid for 6 months. These dates run from the
date of signature on the renewal instrument.
5.12 In those
circumstances where the assistance of communications service providers has been
sought, a copy of the warrant renewal instrument will be forwarded by the
intercepting agency to all those on whom a copy of the original warrant
instrument has been served, providing they are still actively assisting. A
warrant renewal instrument will include the reference number of the warrant and
description of the communications to be intercepted.
Warrant Cancellation
5.13 The Attorney
General shall cancel an interception warrant if, at any time before its expiry
date, the Attorney General is satisfied that the warrant is no longer necessary
on grounds falling within Article 10(3) of the Law.
5.14 The cancellation
instrument will be addressed to the person to whom the warrant was issued (the
intercepting agency). A copy of the cancellation instrument should be sent to
those communications service providers, if any, who have given effect to the
warrant during the preceding 12 months.
Records
5.15 The
independent scrutiny régime allows the Commissioner to inspect the
warrant application upon which the Attorney General based his or her decision,
and the applicant may be required to justify the content. Each intercepting
agency should keep, so to be made available for scrutiny by the Commissioner,
the following:
· all
applications made for warrants complying with Article 12(4), and applications
made for the renewal of such warrants.
· all
warrants and certificates, and copies of renewal and modification instruments
(if any).
· where
any application is refused, the grounds for refusal as given by the Attorney
General.
· the
dates on which interception is started and stopped.
Records shall also be kept of the arrangements in force for securing
that only material which has been certified for examination for a purpose under
Article 10(3) and which meets the conditions set out in Article 20(2) to
(6) of the Law in accordance with Article 19 of the Law. Records shall be kept
of the arrangements by which the requirements of Article 19(2) (minimisation of
copying and distribution of intercepted material) and Article 19(3)
(destruction of intercepted material) are to be met. For further details see
chapter on “Safeguards”.
6 SAFEGUARDS
6.1 All
material (including related communications data) intercepted under the
authority of a warrant complying with Article 12(1) or Article 12(4) of the Law
must be handled in accordance with safeguards which the Attorney General has approved
in conformity with the duty imposed upon the Attorney General by the Law. These
safeguards are made available to the Commissioner, and they must meet the
requirements of Article 19 of the Law which are set out below. In addition, the
safeguards in Article 20 of the Law apply to warrants complying with Article
12(4). Any breach of these safeguards must be reported to the Commissioner.
6.2 Article
19 of the Law requires that disclosure, copying and retention of intercept
material be limited to the minimum necessary for the authorized purposes. The authorized
purposes defined in Article 19(4) of the Law include:
· if
the material continues to be, or is likely to become, necessary for any of the
purposes set out in Article 10(3) - namely, in the interests of national
security, for the purpose of preventing or detecting serious crime, for the
purpose of safeguarding the economic well-being of Jersey.
· if
the material is necessary for facilitating the carrying out of the functions of
the Attorney General under Chapter 1 of Part 2 of the Law.
· if
the material is necessary for facilitating the carrying out of any functions of
the Commissioner or the Tribunal.
· if
the material is necessary to ensure that a person conducting a criminal
prosecution has the information he or she needs to determine what is required
of the person by his or her duty to secure the fairness of the prosecution.
6.3 Article
20 provides for additional safeguards in relation to material gathered under
Article 12(4) warrants, requiring that the safeguards:
· ensure
that intercepted material is read, looked at or listened to by any person only
to the extent that the material is certified.
· regulate
the use of selection factors that refer to individuals known to be for the time
being in Jersey.
The Attorney General must ensure that the safeguards are in force
before any interception under warrants complying with Article 12(4) can begin. The
Commissioner is under a duty to review the adequacy of the safeguards.
Dissemination of Intercepted Material
6.4 The
number of persons to whom any of the material is disclosed, and the extent of
disclosure, must be limited to the minimum that is necessary for the authorized
purposes set out in Article 19(4) of the Law. This obligation applies equally
to disclosure to additional persons within an agency, and to disclosure outside
the agency. It is enforced by prohibiting disclosure to persons who do not hold
the required security clearance, and also by the need-to-know principle:
intercepted material must not be disclosed to any person unless that
person’s duties, which must relate to one of the authorized purposes, are
such that the person needs to know about the material to carry out those
duties. In the same way only so much of the material may be disclosed as the
recipient needs; for example if a summary of the material will suffice, no more
than that should be disclosed.
6.5 The
obligations apply not just to the original interceptor, but also to anyone to
whom the material is subsequently disclosed. In some cases this will be
achieved by requiring the latter to obtain the originator’s permission
before disclosing the material further. In others, explicit safeguards are
applied to secondary recipients.
Copying
6.6 Intercepted
material may only be copied to the extent necessary for the authorized purposes
set out in Article 19(4) of the Law. Copies include not only direct copies of
the whole of the material, but also extracts and summaries which identify
themselves as the product of an interception, and any record referring to an
interception which is a record of the identities of the persons to or by whom
the intercepted material was sent. The restrictions are implemented by
requiring special treatment of such copies, extracts and summaries that are
made by recording their making, distribution and destruction.
Storage
6.7 Intercepted
material, and all copies, extracts and summaries of it, must be handled and
stored securely, so as to minimise the risk of loss or theft. It must be held
so as to be inaccessible to persons without the required level of security
clearance. This requirement to store intercept product securely applies to all
those who are responsible for the handling of this material, including
communications service providers. The details of what such a requirement will
mean in practice for communications service providers will be set out in the
discussions they will be having with the law enforcement agency before an
Article 16 Notice is served (see paragraph 2.9).
Destruction
6.8 Intercepted
material, and all copies, extracts and summaries which can be identified as the
product of an interception, must be securely destroyed as soon as it is no
longer needed for any of the authorized purposes. If such material is retained,
it should be reviewed at appropriate intervals to confirm that the
justification for its retention is still valid under Article 19(3) of the
Law.
Personnel security
6.9 Each
intercepting agency maintains a distribution list of persons who may have
access to intercepted material or need to see any reporting in relation to it. All
such persons must be appropriately vetted. Any person no longer needing access
to perform his or her duties should be removed from any such list. Where it is
necessary for an officer of one agency to disclose material to another, it is
the former’s responsibility to ensure that the recipient has the
necessary clearance.
7 DISCLOSURE
TO ENSURE FAIRNESS IN CRIMINAL PROCEEDINGS
7.1 Article
19(3) of the Law states the general rule that intercepted material must be
destroyed as soon as its retention is no longer necessary for a purpose authorized
under the Law. Article 19(4) specifies the authorized purposes for which
retention is necessary.
7.2 This
part of the Code applies to the handling of intercepted material in the context
of criminal proceedings where the material has been retained for one of the
purposes authorized in Article 19(4) of the Law. For those who would ordinarily
have had responsibility to provide disclosure in criminal proceedings, this
includes those rare situations where destruction of intercepted material has
not taken place in accordance with Article 19(3) and where that material is
still in existence after the commencement of a criminal prosecution, retention
having been considered necessary to ensure that a person conducting a criminal
prosecution has the information he or she needs to discharge his or her duty of
ensuring its fairness (Article 19(4)(d)).
Exclusion of Matters from Legal Proceedings
7.3 The
general rule is that neither the possibility of interception nor intercepted
material itself plays any part in legal proceedings. This rule is set out in
Article 21 of the Law, which excludes evidence, questioning, assertion or
disclosure in legal proceedings likely to reveal the existence (or the absence)
of a warrant issued under this Law (or the Interception of Communications
(Jersey) Law 1993). This rule means that the intercepted material cannot be
used either by the prosecution or the defence. This preserves “equality
of arms” which is a requirement under Article 6 of the European
Convention on Human Rights.
7.4 Article
22 contains a number of tightly-drawn exceptions to this rule. This part of the
Code deals only with the exceptions in paragraphs (7) to (10).
Disclosure to a Prosecutor
7.5 Article
22(7)(a) provides that intercepted material obtained by means of a warrant and
which continues to be available, may, for a strictly limited purpose, be
disclosed to a person conducting a criminal prosecution.
7.6 This
may only be done for the purpose of enabling the prosecutor to determine what
is required of the prosecutor by his or her duty to secure the fairness of the
prosecution. The prosecutor may not use intercepted material to which he or she
is given access under Article 22(7)(a) to mount a cross-examination, or to do
anything other than ensure the fairness of the proceedings.
7.7 The
exception does not mean that intercepted material should be retained against a
remote possibility that it might be relevant to future proceedings. The normal
expectation is, still, for the intercepted material to be destroyed in
accordance with the general safeguards provided by Article 19. The exceptions
only come into play if such material has, in fact, been retained for an authorized
purpose. Because the authorized purpose given in Article 10(3)(b) (“for the purpose of preventing or detecting serious crime”)
does not extend to gathering evidence for the purpose of a prosecution,
material intercepted for this purpose may not have survived to the prosecution
stage, as it will have been destroyed in accordance with the Article 19(3)
safeguards. There is, in these circumstances, no need to consider disclosure to
a prosecutor if, in fact, no intercepted material remains in existence.
7.8 Be
that as it may, Article 22(7)(a) recognises the duty on prosecutors, to review
all available material to make sure that the prosecution is not proceeding
unfairly. ‘Available material’ will only ever include intercepted
material at this stage if the conscious decision has been made to retain it for
an authorized purpose.
7.9 If
intercepted material does continue to be available at the prosecution stage,
once this information has come to the attention of the holder of this material
the prosecutor should be informed that a warrant has been issued under Article
10 and that material of possible relevance to the case has been intercepted.
7.10 Having had
access to the material, the prosecutor may conclude that the material affects
the fairness of the proceedings. In these circumstances, the prosecutor will
decide how the prosecution, if it proceeds, should be presented.
Disclosure to the Bailiff
7.11 Article
22(7)(b) recognises that there may be cases where the prosecutor, having seen
intercepted material under paragraph (7)(a), will need to consult the judge
presiding at the trial. Accordingly, it provides for the Bailiff to be given
access to intercepted material, where there are exceptional circumstances
making that disclosure essential in the interests of justice.
7.12 This access
will be achieved by the prosecutor inviting the Bailiff to make an order for
disclosure to the Bailiff alone, under this paragraph. This is an exceptional
procedure; normally, the prosecutor’s functions under paragraph (7)(a)
will not fall to be reviewed by the Bailiff. To comply with Article 21(1), any
consideration given to, or exercise of, this power must be carried out without
notice to the defence. The purpose of this power is to ensure that the trial is
conducted fairly.
7.13 The Bailiff
may, having considered the intercepted material disclosed to the Bailiff,
direct the prosecution to make an admission of fact. The admission will be
abstracted from the interception; but, in accordance with the requirements of
Article 21(1), it must not reveal the fact of interception. This is likely to
be a very unusual step. The Law only allows it where the Bailiff considers it
essential in the interests of justice.
7.14 Nothing in these
provisions allows intercepted material, or the fact of interception, to be
disclosed to the defence.
8 OVERSIGHT
8.1 The
Law provides for a Commissioner whose remit is to provide independent oversight
of the use of the powers contained within the warranted interception
régime under Chapter 1 of Part 2 of the Law.
8.2 This
Code does not cover the exercise of the Commissioner’s functions. However,
it will be the duty of any person who uses the above powers to comply with any
request made by the Commissioner to provide any information as the Commissioner
requires for the purpose of enabling the Commissioner to discharge his or her
functions.
9 COMPLAINTS
9.1 The
Law establishes an independent Tribunal. This Tribunal will be made up of a
judge of the Court of Appeal and 2 Jurats and is independent of the States. The
Tribunal has full powers to investigate and decide any case within its
jurisdiction.
9.2 This
code does not cover the exercise of the Tribunal’s functions. Details of
the relevant complaints procedure can be obtained from:
The Judicial Greffier
Morier House
St Helier
Jersey
JE1 1DD
10 INTERCEPTION
WITHOUT A WARRANT
10.1 Article 8(4)
of the Law permits interception without a warrant in the following
circumstances:
· where
it is authorized by or under Article 8 or 9 of the Law (see below);
· where
it is in exercise, in relation to any stored communication, of some other
statutory power exercised for the purpose of obtaining information or of taking
possession of any document or other property, for example, the obtaining of a
production order under Schedule 1 to the Police Procedures and Criminal
Evidence (Jersey) Law 2003 for stored data to be produced.
Interception in accordance with a warrant under Article 10 of the
Law is dealt with under Chapters 2, 3, 4 and 5 of this Code.
10.2 For lawful
interception which takes place without a warrant, pursuant to Articles 8 or 9
of the Law or pursuant to some other statutory power, there is no prohibition
in the Law on the evidential use of any material that is obtained as a result. The
matter may still, however, be regulated by the exclusionary rules of evidence
to be found in the customary law, Article 76 of the Police Procedures and
Criminal Evidence (Jersey) Law 2003, and/or pursuant to the Human Rights (Jersey)
Law 2000.
Interception with the Consent of both Parties
10.3 Article 8(1)
of the Law authorizes the interception of a communication if both the person
sending the communication and the intended recipient(s) have consented to its
interception, or where the person conducting the interception has reasonable
grounds for believing that all parties have consented to the interception.
Interception with the Consent of one Party
10.4 Article 8(2)
of the Law authorizes the interception of a communication if either the sender
or intended recipient of the communication has consented to its interception,
and directed surveillance by means of that interception has been authorized
under Part 3 of the Law. Further details can be found in Chapter 4 of the
Covert Surveillance Code of Practice and in Chapter 2 of the Covert Human
Intelligence Sources Code of Practice.
Interception
for the Purposes of a Communication Service Provider
10.5 Article
8(3) of the Law permits a communication service provider or a person acting
upon a provider’s behalf to carry out interception for purposes connected
with the operation of that service or for purposes connected with the
enforcement of any enactment relating to the use of the communication service.
Lawful Business Practice
10.6 Article 9(2)
of the Law enables the Minister for Home Affairs to make an Order setting out
those circumstances where it is lawful to intercept communications for the
purpose of carrying on a business. This Order applies equally to public
authorities.
SCHEDULE 2
(Article 2)
Code of practice on interception of
communications – Postal
CONTENTS
CHAPTER 1 GENERAL
CHAPTER 2 GENERAL
RULES ON INTERCEPTION WITH A WARRANT
CHAPTER 3 SPECIAL
RULES ON INTERCEPTION WITH A WARRANT
CHAPTER 4 INTERCEPTION
WARRANTS (CHAPTER 7(1))
CHAPTER 5 SAFEGUARDS
CHAPTER 6 DISCLOSURE
TO ENSURE FAIRNESS IN CRIMINAL PROCEEDINGS
CHAPTER 7 INDEPENDENT
SCRUTINY
CHAPTER 8 COMPLAINTS
CHAPTER 9 INTERCEPTION
WITHOUT A WARRANT
1 GENERAL
1.1 This
Code of Practice relates to the powers and duties conferred or imposed under
Chapter 1 of Part 3 of the Regulation of Investigatory Powers (Jersey) Law 2005
(the “Law”). It provides guidance on the procedures that must be
followed before interception of postal communications can take place under
those provisions. It is primarily intended for use by those public authorities
listed in Article 11(1) of the Law. It will also prove useful to postal
operators and other interested bodies to acquaint themselves with the
procedures to be followed by those public authorities.
1.2 The
Law provides that all Codes of Practice relating to the Law are admissible as
evidence in criminal and civil proceedings. If any provision of this Code
appears relevant before any court or tribunal considering any such proceedings,
or to the Tribunal established under the Law, or to the Commissioner
responsible for overseeing the powers conferred by the Law, it must be taken
into account.
2 GENERAL
RULES ON INTERCEPTION WITH A WARRANT
2.1 There
are a limited number of persons by whom, or on behalf of whom, applications for
interception warrants may be made. These persons are:
· The
Chief Officer of the States Police;
· The
Agent of the Impôts;
· The
Chief Immigration Officer;
· The
Intelligence Services;
· A
person who, for the purposes of any international mutual assistance agreement,
is the competent authority of a country or territory outside Jersey.
2.2 All
interception warrants are issued by the Attorney General. Before issuing an
interception warrant, the Attorney General must believe that what the action
seeks to achieve is necessary for one of the following Article 10 purposes:
· in
the interests of national security;
· for
the purpose of preventing or detecting serious crime; or
· for
the purpose of safeguarding the economic well-being of Jersey;
and that the conduct authorized by the warrant is proportionate to
what is sought to be achieved by that conduct.
Necessity and Proportionality
2.3 Obtaining
a warrant under the Law will only ensure that the interception authorized is a
justifiable interference with an individual’s rights under Article 8 of
the European Convention of Human Rights (the right to privacy) if it is
necessary and proportionate for the interception to take place. The Law
recognises this by first requiring that the Attorney General believes that the authorization
is necessary on one or more of the statutory grounds set out in Article 10 of
the Law. This requires the Attorney General to believe that it is necessary to
undertake the interception which is to be authorized for a particular purpose
falling within the relevant statutory ground.
2.4 Then,
if the interception is necessary, the Attorney General must also believe that
it is proportionate to what is sought to be achieved by carrying it out. This
involves balancing the intrusiveness of the interference, against the need for
it in operational terms. Interception of communications will not be
proportionate if it is excessive in the circumstances of the case or if the
information which is sought could reasonably be obtained by other means. Further,
all interception should be carefully managed to meet the objective in question
and must not be arbitrary or unfair.
Implementation of Warrants
2.5 After
a warrant has been issued it will be forwarded to the person to whom it is
addressed, which in practice will be the person or agency that submitted the
application. The Law (Article 15) then permits the intercepting agency to carry
out the interception, or to require the assistance of other persons in giving
effect to the warrant. Warrants cannot be served on those outside Jersey.
Provision of Reasonable Assistance
2.6 Any
public postal operator in Jersey may be required to provide assistance in
giving effect to an interception. The Law places a requirement on postal
operators to take all such steps for giving effect to the warrant as are
notified to them (Article 15(4) of the Law). But the steps that may be required
are limited to those which it is reasonably practicable to take (Article 15(5)).
If there is disagreement about what is reasonably practicable, it will be for the
Attorney General to decide whether to press forward with civil proceedings or
whether to institute criminal proceedings.
2.7 Where
the intercepting agency requires the assistance of a postal operator in order
to implement a warrant, the agency should provide the following to the postal
operator:
· A
copy of the warrant instrument signed and dated by the Attorney General;
· The
relevant schedule for that service provider setting out the addresses or other
factors identifying the communications to be intercepted;
· A
covering document from the intercepting agency requiring the assistance of the
postal operator and specifying any other details regarding the means of
interception and delivery as may be necessary. Contact details with respect to
the intercepting agency will either be provided in this covering document or
will be available in the handbook provided to all postal operators who maintain
an intercept capability.
Provision of Intercept Capability
2.8 Whilst
all persons who provide a postal service are obliged to provide assistance in
giving effect to an interception, persons who provide a public postal service,
or plan to do so, may also be required to provide a reasonable intercept
capability. The obligations that the Minister for Home Affairs considers
reasonable to impose on such persons to ensure they have such a capability will
be set out in an Order made by the Minister for Home Affairs following wider
consultation. A notice may be served upon a postal operator setting out the
steps they must take to ensure they can meet these obligations. A notice will
not be served without consultation over the content of the notice between the
law enforcement agencies and the postal service provider having previously
taken place. When served with such a notice, a postal operator, if the operator
feels it unreasonable, will be able to refer that notice to the Technical
Advisory Board on the reasonableness of the technical requirements and
capabilities that are being sought. Details of how to submit a notice to the Board
will be provided either before or at the time the notice is served.
2.9 Any
postal operator obliged to maintain a reasonable intercept capability will be
provided with instructions or a handbook which will contain the basic
information they require to respond to requests for reasonable assistance for
the interception of communications.
Duration of Interception Warrants
2.10 All
interception warrants are valid for an initial period of 3 months. Upon renewal, warrants
issued on serious crime grounds are valid for a further period of 3 months. Warrants renewed on national
security/economic well-being grounds are valid for a further period of 6 months.
2.11 Where a change
in circumstance prior to the set expiry date leads the intercepting agency to
consider it no longer necessary or practicable for the warrant to be in force,
it should be cancelled with immediate effect.
Stored Communications
2.12 Article 2(7)
of the Law defines a communication in the course of its transmission as also
encompassing any time when the communication is being stored in the
communication system.
2.13 Stored
communications may also be accessed by means other than a warrant. If a
communication has been stored within a transit system it may be obtained with
lawful authority by means of an existing statutory power such as a production
order (e.g. under the Police Procedures and
Criminal Evidence (Jersey) Law, 2003) or a search warrant.
3 SPECIAL
RULES ON INTERCEPTION WITH A WARRANT
Collateral Intrusion
3.1 Consideration
should be given to any infringement of the privacy of individuals who are not
the subject of the intended interception, especially where communications
relating to religious, medical, journalistic or legally privileged material may
be involved. An application for an interception warrant should draw attention
to any circumstances which give rise to an unusual degree of collateral
infringement of privacy, and this will be taken into account by the Attorney
General when considering a warrant application. Should an interception
operation reach the point where individuals other than the subject of the authorization
are identified as directly relevant to the operation, consideration should be
given to applying for separate warrants covering those individuals.
Confidential Information
3.2 Particular
consideration should also be given in cases where the subject of the
interception might reasonably assume a high degree of privacy, or where
confidential information is involved. Confidential information consists of
matters subject to legal privilege, confidential personal information or
confidential journalistic material (see paragraphs 3.9-3.11). For example,
extra consideration should be given where interception might involve
communications between a minister of religion and an individual relating to the
latter’s spiritual welfare, or where matters of medical or journalistic
confidentiality or legal privilege may be involved.
Communications
Subject to Legal Privilege
3.3 Article
5 of the Police Procedures and Criminal Evidence (Jersey) Law 2003 describes
those matters that are usually regarded as subject to legal privilege. Legal
privilege does not apply to communications made with the intention of
furthering a criminal purpose (whether the lawyer is acting unwittingly or
culpably). Legally privileged communications will lose their protection if
there are grounds to believe, for example, that the lawyer is intending to hold
or use the information for a criminal purpose. But privilege is not lost if a
lawyer is properly advising a person who is suspected of having committed a
criminal offence. The concept of legal privilege applies to the provision of
professional legal advice by any individual, agency or organisation qualified
to do so.
3.4 The
Law does not provide any special protection for legally privileged
communications. Nevertheless, intercepting such communications is particularly
sensitive and is therefore subject to additional safeguards under this Code. The
guidance set out below may in part depend on whether matters subject to legal
privilege have been obtained intentionally or incidentally to some other
material which has been sought.
3.5 In
general, any application for a warrant which is likely to result in the
interception of legally privileged communications should include, in addition
to the reasons why it is considered necessary for the interception to take
place, an assessment of how likely it is that communications which are subject
to legal privilege will be intercepted. In addition, it should state whether
the purpose (or one of the purposes) of the interception is to obtain
privileged communications. This assessment will be taken into account by the
Attorney General in deciding whether an interception is necessary under Article
10 of the Law and whether it is proportionate. In such circumstances, the
Attorney General will be able to impose additional conditions such as regular
reporting arrangements so as to be able to exercise his or her discretion on
whether a warrant should continue to be authorized. In those cases where
communications which include legally privileged communications have been
intercepted, the matter should be reported to the Commissioner during his or
her inspections and the material be made available to the Commissioner if
requested.
3.6 Where
an Advocate or Solicitor or other professional legal adviser is the subject of
an interception, it is possible that a substantial proportion of the communications
which will be intercepted will be between the lawyer and his or her client(s)
and will be subject to legal privilege. Any case where a lawyer is the subject
of an investigation should be notified to the Commissioner during the
Commissioner’s inspections and any material which has been retained
should be made available to the Commissioner if requested.
3.7 In
addition to the safeguards governing the handling and retention of intercept
material as provided for in Article 19 of the Law, persons who examine
intercepted communications should be alert to any intercept material which may
be subject to legal privilege. Where there is doubt as to whether the
communications are subject to legal privilege, advice should be sought from the
Law Officers Department. Similarly, advice should also be sought where there is
doubt over whether communications are not subject to legal privilege due to the
“in furtherance of a criminal purpose” exception.
Communications involving Confidential
Personal Information and Confidential Journalistic Material
3.8 Similar
consideration to that given to legally privileged communications must also be
given to the interception of communications that involve confidential personal
information and confidential journalistic material. Confidential personal
information is information held in confidence concerning an individual (whether
living or dead) who can be identified from it, and the material in question
relates to his physical or mental health or to spiritual counselling. Such information
can include both oral and written communications. Such information as described
above is held in confidence if it is held subject to an express or implied
undertaking to hold it in confidence or it is subject to a restriction on
disclosure or an obligation of confidentiality contained in existing
legislation. For example, confidential personal information might include
consultations between a health professional and a patient, or information from
a patient’s medical records.
3.9 Spiritual
counselling is defined as conversations between an individual and a Minister of
Religion acting in his or her official capacity, and where the individual being
counselled is seeking or the Minister is imparting forgiveness, absolution or
the resolution of conscience with the authority of the Divine Being(s) of their
particular faith.
3.10 Confidential
journalistic material includes material acquired or created for the purposes of
journalism and held subject to an undertaking to hold it in confidence, as well
as communications resulting in information being acquired for the purposes of
journalism and held subject to such an undertaking.
4 INTERCEPTION
WARRANTS (ARTICLE 12(1))
4.1 This
Chapter applies to the interception of communications by means of a warrant
complying with Article 12(1) of the Law. This type of warrant may be issued in
respect of the interception of communications carried on any postal service as
defined in Article 1(1) of the Law. Responsibility for the issuing of
interception warrants rests with the Attorney General.
Application for a Article 12(1) Warrant
4.2 An
application for a warrant is made to the Attorney General. Interception
warrants, when issued, are addressed to the person who submitted the
application. This person may then serve a copy upon any person who may be able
to provide assistance in giving effect to that warrant. Each application, a
copy of which must be retained by the applicant, should contain the following
information:
· Background
to the operation in question.
· Person
or premises to which the application relates (and how the person or premises
feature in the operation).
· Description
of the communications to be intercepted, details of the postal operator(s) and
an assessment of the feasibility of the interception operation where this is
relevant.
· Description
of the conduct to be authorized as considered necessary in order to carry out
the interception, where appropriate.
· An
explanation of why the interception is considered to be necessary under the
provisions of Article 10.
· A
consideration of why the conduct to be authorized by the warrant is
proportionate to what is sought to be achieved by that conduct.
· A
consideration of any unusual degree of collateral intrusion and why that
intrusion is justified in the circumstances. In particular, where the
communications in question might affect religious, medical or journalistic
confidentiality or legal privilege, this must be specified in the application.
· Where
an application is urgent, supporting justification should be provided.
· An
assurance that all material intercepted will be handled in accordance with the
safeguards required by Article 19 of the Law.
Authorization of an Article 12(1) Warrant
4.3 Before
issuing a warrant under Article 12(1), The Attorney General must believe the
warrant is necessary:
· in
the interests of national security;
· for
the purpose of preventing or detecting serious crime; or
· for
the purpose of safeguarding the economic well-being of Jersey.
4.4 In
exercising his or her power to issue an interception warrant for the purpose of
safeguarding the economic well-being of Jersey (as provided for by Article 10 of
the Law), the Attorney General will consider whether the economic well-being of
Jersey which is to be safeguarded is, on the facts of each case, directly
related to national security. The Attorney General will not issue a warrant on Article
10 grounds if this direct link between the economic well-being of Jersey and
national security is not established. Any application for a warrant on Article
5(3)(c) grounds should therefore explain how, in the applicant's view, the
economic well-being of Jersey which is to be safeguarded is directly related to
national security on the facts of the case.
4.5 The
Attorney General must also consider that the conduct authorized by the warrant
is proportionate to what it seeks to achieve (Article 10). In considering
necessity and proportionality, the Attorney General must take into account
whether the information sought could reasonably be obtained by other means (Article
10).
Format of an Article 12 Warrant
4.6 Each
warrant comprises 2 sections, a warrant instrument signed by the Attorney
General listing the subject of the interception or the set of premises, a copy
of which each postal operator will receive, and a schedule or set of schedules
listing the communications to be intercepted. Only the schedule relevant to the
communications that can be intercepted by the specified postal operator will be
provided to that service provider.
4.7 The
warrant instrument should include:
· The
name or description of the interception subject or of a set of premises in
relation to which the interception is to take place;
· A
warrant reference number.
4.8 The
scheduled part of the warrant will comprise one or more schedules. Each
schedule should contain:
· The
name of the postal operator, or the other person who is to take action;
· A
warrant reference number;
· A
means of identifying the communications to be intercepted.
Modification of Article 7(1) warrant
4.9 Interception
warrants may be modified under the provisions of Article 14 of the Law. The
unscheduled part of a warrant may only be modified by the Attorney General. The
modification will expire on the expiry date of the warrant.
4.10 Scheduled
parts of a warrant may be modified by the Attorney General in which case the
modification expires on the expiry date of the warrant. A modification to the
scheduled part of the warrant may include the addition of a new schedule
relating to a communication service provider or when a copy of the warrant has
not been previously served. In an urgent case, where the warrant specifically authorizes
it, scheduled parts of a warrant may be modified by the person to whom the
warrant is addressed (the person who submitted the application) or a
subordinate (where the subordinate is identified in the warrant). Modifications
of this kind are valid for 5 working days following the day of issue unless the
modification instrument is endorsed by the Attorney General. Where the
modification is endorsed in this way, the modification expires upon the expiry
date of the warrant.
4.11 There is a
duty to modify a warrant by deleting a communications identifier if it is no
longer relevant. When a modification is sought to delete a number or other
communication identified, the relevant communication service provider must be
advised and the interception suspended before the modification is made.
Renewal of Article 12(1) Warrant
4.12 The Attorney
General may renew a warrant at any point before its expiry date. Applications
for renewals must be made to the Attorney General and should contain an update
of the matters outlined in paragraph 4.2. In particular, the applicant should
give an assessment of the value of interception to the operation to date and
explain why he considers that interception continues to be necessary for one or
more of the purposes in Article 10(3).
4.13 Where the
Attorney General is satisfied that the interception continues to meet the
requirements of the Law the Attorney General may renew the warrant. Where the
warrant is issued on serious crime grounds, the renewed warrant is valid for a
further 3 months. Where it is issued on national security/economic well-being
grounds, the renewed warrant is valid for 6 months. These dates run from the
date of signature on the renewal instrument.
4.14 A copy of the
warrant renewal instrument will be forwarded by the intercepting agency to all
relevant communications service providers on whom a copy of the original
warrant instrument and a schedule have been served, providing they are still
actively assisting. A warrant renewal instrument will include the reference
number of the warrant and description of the person or premises described in
the warrant.
Warrant Cancellation
4.15 The Attorney
General is under a duty to cancel an interception warrant if, at any time
before its expiry date, he or she is satisfied that the warrant is no longer
necessary on grounds falling within Article 10(3) of the Law. Intercepting
agencies will therefore need to keep their warrants under continuous review.
4.16 The
cancellation instrument should be addressed to the person to whom the warrant
was issued (the intercepting agency) and should include the reference number of
the warrant and the description of the person or premises specified in the
warrant. A copy of the cancellation instrument should be sent to those
communications service providers who have held a copy of the warrant instrument
and accompanying schedule during the preceding 12 months.
Records
4.17 The
independent scrutiny régime allows the Commissioner appointed under the
Law to inspect the warrant application on which the Attorney General based his
or her decision and the applicant may be required to justify the content. Each
intercepting agency should keep the following to be made available for scrutiny
by the Commissioner as he may require:
· all
applications made for warrants complying with Article 12(1) and applications
made for the renewal of such warrants.
· all
warrants, and renewals and copies of schedule modifications (if any).
· where
any application is refused, the grounds for refusal as given by the Attorney
General.
· the
dates on which interception is started and stopped.
4.18 Records shall
also be kept of the arrangements by which the requirements of Article 19(2)
(minimisation of copying and destruction of intercepted material) and Article
19(3) (destruction of intercepted material) are to be met. For further details
see chapter on “Safeguards”.
4.19 The term
“intercepted material” is used throughout to embrace copies,
extracts or summaries made from the intercepted material as well as the
intercept material itself.
5 SAFEGUARDS
5.1 All
material (including related communications data) intercepted under the
authority of a warrant complying with Article 12(1) of the Law must be handled
in accordance with safeguards which the Attorney General has approved in
conformity with the duty imposed upon the Attorney General by the Law. These
safeguards are made available to the Commissioner, and they must meet the
requirements of Article 19 of the Law which are set out below. Any breach of
these safeguards must be reported to the Commissioner.
5.2 Article
19 of the Law requires that disclosure, copying and retention of intercept
material be limited to the minimum necessary for the authorized purposes. The authorized
purposes defined in Article 19(4) of the Law include:
· if
the material continues to be, or is likely to become, necessary for any of the
purposes set out in Article 10(3) - namely, in the interests of national
security, for the purpose of preventing or detecting serious crime, for the
purpose of safeguarding the economic well-being of Jersey.
· if
the material is necessary for facilitating the carrying out of the functions of
the Attorney General under Chapter I of Part 2 of the Law.
· if
the material is necessary for facilitating the carrying out of any functions of
the Commissioner or the Tribunal.
· if
the material is necessary to ensure that a person conducting a criminal
prosecution has the information he or she needs to determine what is required
of the person by his or her duty to secure the fairness of the prosecution.
Dissemination of Intercepted Material
5.3 The
number of persons to whom any of the material is disclosed, and the extent of
disclosure, must be limited to the minimum that is necessary for the authorized
purposes set out in Article 19(4) of the Law. This obligation applies equally
to disclosure to additional persons within an agency, and to disclosure outside
the agency. It is enforced by prohibiting disclosure to persons who do not hold
the required security clearance, and also by the need-to-know principle:
intercepted material must not be disclosed to any person unless that
person’s duties, which must relate to one of the authorized purposes, are
such that he or she needs to know about the material to carry out those duties.
In the same way only so much of the material may be disclosed as the recipient
needs; for example if a summary of the material will suffice, no more than that
should be disclosed.
5.4 The
obligations apply not just to the original interceptor, but also to anyone to
whom the material is subsequently disclosed. In some cases this will be
achieved by requiring the latter to obtain the originator’s permission
before disclosing the material further. In others, explicit safeguards are
applied to secondary recipients.
Copying
5.5 Intercepted
material may only be copied to the extent necessary for the authorized purposes
set out in Article 19(4) of the Law. Copies include not only direct copies of
the whole of the material, but also extracts and summaries which identify
themselves as the product of an interception, and any record referring to an
interception which is a record of the identities of the persons to or by whom
the intercepted material was sent. The restrictions are implemented by
requiring special treatment of such copies, extracts and summaries that are
made by recording their making, distribution and destruction.
Storage
5.6 Intercepted
material, and all copies, extracts and summaries of it, must be handled and
stored securely, so as to minimise the risk of loss or theft. It must be held
so as to be inaccessible to persons without the required level of security
clearance. This requirement to store intercept product securely applies to all
those who are responsible for the handling of this material, including
communications service providers. The details of what such a requirement will
mean in practice for communications service providers will be set out in the
discussions they will be having with the law enforcement agency before an
Article 16 Notice is served (see paragraph 2.9).
Destruction
5.7 Intercepted
material, and all copies, extracts and summaries which can be identified as the
product of an interception, must be securely destroyed as soon as it is no
longer needed for any of the authorized purposes. If such material is retained,
it should be reviewed at appropriate intervals to confirm that the
justification for its retention is still valid under Article 19(3) of the
Law.
Personnel security
5.8 Each
intercepting agency maintains a distribution list of persons who may have
access to intercepted material or need to see any reporting in relation to it. All
such persons must be appropriately vetted. Any person no longer needing access
to perform his or her duties should be removed from any such list. Where it is
necessary for an officer of one agency to disclose material to another, it is
the former’s responsibility to ensure that the recipient has the
necessary clearance.
6 DISCLOSURE
TO ENSURE FAIRNESS IN CRIMINAL PROCEEDINGS
6.1 Article
19(3) of the Law states the general rule that intercepted material must be
destroyed as soon as its retention is no longer necessary for a purpose authorized
under the Law. Article 19(4) specifies the authorized purposes for which
retention is necessary.
6.2 This
part of the Code applies to the handling of intercepted material in the context
of criminal proceedings where the material has been retained for one of the
purposes authorized in Article 19(4) of the Law. For those who would ordinarily
have had responsibility to provide disclosure in criminal proceedings, this
includes those rare situations where destruction of intercepted material has
not taken place in accordance with Article 19(3) and where that material is
still in existence after the commencement of a criminal prosecution, retention
having been considered necessary to ensure that a person conducting a criminal
prosecution has the information he or she needs to discharge his duty of
ensuring its fairness (Article 19(4)(d)).
Exclusion of Matters from Legal Proceedings
6.3 The
general rule is that neither the possibility of interception nor intercepted
material itself plays any part in legal proceedings. This rule is set out in
Article 21 of the Law, which excludes evidence, questioning, assertion or disclosure
in legal proceedings likely to reveal the existence (or the absence) of a
warrant issued under this Law (or the Interception of Communications (Jersey)
Law 1993). This rule means that the intercepted material cannot be used either
by the prosecution or the defence. This preserves “equality of
arms” which is a requirement under Article 6 of the European Convention
on Human Rights.
6.4 Article
22 contains a number of tightly-drawn exceptions to this rule. This part of the
Code deals only with the exceptions in paragraphs (7) to (10).
Disclosure to a Prosecutor
6.5 Article
22(7)(a) provides that intercepted material obtained by means of a warrant and
which continues to be available, may, for a strictly limited purpose, be
disclosed to a person conducting a criminal prosecution.
6.6 This
may only be done for the purpose of enabling the prosecutor to determine what
is required of the prosecutor by his or her duty to secure the fairness of the
prosecution. The prosecutor may not use intercepted material to which he or she
is given access under Article 22(7)(a) to mount a cross-examination, or to do
anything other than ensure the fairness of the proceedings.
6.7 The
exception does not mean that intercepted material should be retained against a
remote possibility that it might be relevant to future proceedings. The normal
expectation is, still, for the intercepted material to be destroyed in
accordance with the general safeguards provided by Article 19. The exceptions
only come into play if such material has, in fact, been retained for an authorized
purpose. Because the authorized purpose given in Article 10(3)(b) (“for the purpose of preventing or detecting serious crime”)
does not extend to gathering evidence for the purpose of a prosecution,
material intercepted for this purpose may not have survived to the prosecution
stage, as it will have been destroyed in accordance with the Article 19(3)
safeguards. There is, in these circumstances, no need to consider disclosure to
a prosecutor if, in fact, no intercepted material remains in existence.
6.8 Be
that as it may, Article 22(7)(a) recognises the duty on prosecutors, to review
all available material to make sure that the prosecution is not proceeding
unfairly. ‘Available material’ will only ever include intercepted
material at this stage if the conscious decision has been made to retain it for
an authorized purpose.
6.9 If
intercepted material does continue to be available at the prosecution stage,
once this information has come to the attention of the holder of this material
the prosecutor should be informed that a warrant has been issued under Article
10 and that material of possible relevance to the case has been intercepted.
6.10 Having had
access to the material, the prosecutor may conclude that the material affects
the fairness of the proceedings. In these circumstances, the prosecutor will
decide how the prosecution, if it proceeds, should be presented.
Disclosure to the Bailiff
6.11 Article
22(7)(b) recognises that there may be cases where the prosecutor, having seen
intercepted material under paragraph (7)(a), will need to consult the judge
presiding at the trial. Accordingly, it provides for the Bailiff to be given
access to intercepted material, where there are exceptional circumstances
making that disclosure essential in the interests of justice.
6.12 This access
will be achieved by the prosecutor inviting the Bailiff to make an order for
disclosure to the Bailiff alone, under this paragraph. This is an exceptional
procedure; normally, the prosecutor’s functions under paragraph (7)(a)
will not fall to be reviewed by the Bailiff. To comply with Article 21(1), any
consideration given to, or exercise of, this power must be carried out without
notice to the defence. The purpose of this power is to ensure that the trial is
conducted fairly.
6.13 The Bailiff
may, having considered the intercepted material disclosed to the Bailiff,
direct the prosecution to make an admission of fact. The admission will be
abstracted from the interception; but, in accordance with the requirements of
Article 21(1), it must not reveal the fact of interception. This is likely to
be a very unusual step. The Law only allows it where the Bailiff considers it
essential in the interests of justice.
6.14 Nothing in
these provisions allows intercepted material, or the fact of interception, to
be disclosed to the defence.
7 OVERSIGHT
7.1 The
Law provides for a Commissioner whose remit is to provide independent oversight
of the use of the powers contained within the warranted interception régime
under Chapter I of Part 2 of the Law.
7.2 This
Code does not cover the exercise of the Commissioner’s functions. However,
it will be the duty of any person who uses the above powers to comply with any
request made by the Commissioner to provide any information as he or she
requires for the purpose of enabling the prosecutor to discharge his or her
functions.
8 COMPLAINTS
8.1 The
Law establishes an independent Tribunal. This Tribunal will be made up of a
judge of the Court of Appeal and 2 Jurats and is independent of the States. The
Tribunal has full powers to investigate and decide any case within its
jurisdiction.
8.2 This
code does not cover the exercise of the Tribunal’s functions. Details of
the relevant complaints procedure can be obtained from:
The Judicial Greffier
Morier House
St Helier
Jersey
JE1 1DD
9 INTERCEPTION
WITHOUT A WARRANT
9.1 Article
7 of the Law permits interception without a warrant in the following
circumstances:
· where
it is authorized by or under Articles 8 or 9 of the Law (see below);
· where
it is in exercise, in relation to any stored communication, of some other
statutory power exercised for the purpose of obtaining information or of taking
possession of any document or other property, for example, the obtaining of a production
order under Schedule 2 to the Police Procedures and Criminal Evidence (Jersey)
Law 2003 for stored data to be produced.
Interception in accordance with a warrant under Article 10 of the
Law is dealt with under Chapters 2, 3 and 4 of this Code.
9.2 For
lawful interception which takes place without a warrant, pursuant to Article 7
of the Law or pursuant to some other statutory power, there is no prohibition
in the Law on the evidential use of any material that is obtained as a result. The
matter may still, however, be regulated by the exclusionary rules of evidence
to be found in the common law, in section 76 of the Police Procedures and
Criminal Evidence (Jersey) Law 2003, and/or pursuant to the Human Rights (Jersey)
Law 2000.
Interception with the consent of both parties
9.3 Article
8 of the Law authorizes the interception of a communication if both the person
sending the communication and the intended recipient(s) have consented to its
interception, or where the person conducting the interception has reasonable
grounds for believing that all parties have consented to the interception.
Interception with the consent of one party
9.4 Article
8 of the Law authorizes the interception of a communication if either the
sender or intended recipient of the communication has consented to its
interception, and directed surveillance by means of that interception has been authorized
under Part 2 of the Law. [Further details can be found in Chapter 4 of the
Covert Surveillance Code of Practice and in Chapter 2 of the Covert Human
Intelligence Sources Code of Practice].
Interception for the purposes of a postal
operator
9.5 Article
8 of the Law permits a postal operator or a person acting upon their behalf to
carry out interception for purposes connected with the operation of that
service or for purposes connected with the enforcement of any enactment
relating to the use of the postal service.
SCHEDULE
3
(Article 3)
Code of practice on aCCessing
communications data
CONTENTS
CHAPTER 1 INTRODUCTION
CHAPTER 2 GENERAL
CHAPTER 3 DESIGNATED
PERSONS WITHIN RELEVANT PUBLIC AUTHORITIES PERMITTED TO ACCESS COMMUNICATIONS
DATA UNDER THE LAW
CHAPTER 4 PURPOSES
FOR WHICH COMMUNICATIONS DATA MAY BE SOUGHT
CHAPTER 5 AUTHORIZATIONS
AND NOTICES
CHAPTER 6 VALIDITY OF
AUTHORIZATIONS AND NOTICES
CHAPTER 7 RETENTION
OF RECORDS BY PUBLIC AUTHORITIES
CHAPTER 8 OVERSIGHT
CHAPTER 9 COMPLAINTS
ANNEX A SPECIMEN
ARTICLE 22(4) NOTICE
1 INTRODUCTION
1.1 This
Code of practice relates to the powers and duties conferred or imposed under Chapter
2 of Part 2 of the Regulation of Investigatory Powers (Jersey) Law 2005 (the
“Law”). It provides guidance on the procedures that must be
followed before access to communications data can take place under those
provisions.
1.2 The
Code should be readily available to any members of a public authority who are
involved in operations to access communications data.
1.3 The
Law provides that the Code is admissible in evidence in criminal and civil
proceedings. If any provision of the Code appears relevant to a question before
any court or tribunal hearing any such proceedings, or to the Tribunal
established under the Law, or to the Commissioner responsible for overseeing
the powers conferred by the Law, it must be taken into account.
1.4 This
Code applies to relevant public authorities as described in Chapter 2 of Part 2
of the Law (see paragraph 3.1).
1.5 This
Code does not cover conduct consisting in the
interception of communications (contents of a communication).
2 GENERAL
2.1 The
Code covers any conduct in relation to a postal service or telecommunication
system for obtaining communications data and the disclosure to any person of
such data. For these purposes, communications data includes information
relating to the use of a postal service or telecommunication system but does not include the contents of the communication
itself, contents of emails or interactions with websites. In this Code
“data”, in relation to a postal item, means anything written on the
outside of the item.
2.2 A
person who engages in such conduct must be properly authorized and must act in
accordance with that authority.
2.3 A
test of necessity (see paragraphs 4.1 ‑ 4.3)
must be met before any communications data is obtained. The assessment of
necessity is one made by a designated person. (This is a person designated for
the purposes of Chapter 2 of Part 2 of the Law (see paragraph 3.2). A
designated person has a number of obligations within the provisions of the Law
which must be met before communications data is obtained. These are also laid
out in this Code). A designated person must not only consider it necessary to
obtain the communications data but must also consider the conduct involved in
obtaining the communications data to be proportionate
(see paragraph 4.4 below) to what it is sought to achieve.
3 DESIGNATED
PERSONS WITHIN RELEVANT PUBLIC AUTHORITIES PERMITTED TO ACCESS COMMUNICATIONS
DATA UNDER THE LAW
3.1 Designated
persons within the following “relevant public
authorities” are permitted under the Law
to grant authorizations or serve notices, the 2 routes by which the Law allows
communications data to be accessed (see further paragraph 5.1):
· The
States of Jersey Police Force;
· Immigration
and Nationality Department;
· Customs
and Excise;
· Income
Tax Department;
· Any
of the Parishes;
· Any
of the Intelligence Services;
3.2 The
Designated persons in respect of these bodies within each public authority for
granting authorizations or giving notices will be as follows:
|
·
|
The States of Jersey Police
|
: Chief Officer
|
|
·
|
Immigration and Nationality Department
|
: Chief Inspector
|
|
·
|
Customs and Excise
|
: Agent of the Impôts
|
|
·
|
All others
|
: the Attorney General
|
Relevant public authorities authorized to access communications data
from the list in Chapter 2 of Part 2 of the Law may be removed, if deemed
appropriate, by Regulations.
4 PURPOSES
FOR WHICH COMMUNICATIONS DATA MAY BE SOUGHT
4.1 Under
Article 26(2) of the Law, communications data may be sought if a designated
person believes it is necessary for one or more of the following purposes:
· in
the interests of national security;
· for
the purpose of preventing or detecting crime or of preventing disorder;
· in
the interests of the economic well-being of Jersey (see paragraph 4.2 below);
· in
the interests of public safety;
· for
the purpose of protecting public health;
· for
the purpose of assessing or collecting any tax, duty, levy or other imposition,
contribution or charge payable to the States;
· for
the purpose, in an emergency, of preventing death or injury or any damage to a
person’s physical or mental health, or of mitigating any injury or damage
to a person’s physical or mental health.
4.2 In
exercising his or her power to grant an authorization or give a notice in the
interests of the economic well-being of Jersey (as provided for by Article
26(2)(c)) of the Law, a designated person will consider whether the economic
well-being of Jersey which it is in the interests of is, on the facts of each
case, related to “national security”. A designated person will not
grant an authorization or give a notice on Article 26(2)(c) grounds if this
link is not established. Any application for an authorization or a notice on
Article 26(2)(c) grounds should therefore explain how, in the applicant’s
view, the economic well-being of Jersey which it is in the interests of is related
to national security on the facts of the case.
4.3 For
an action to be necessary in a democratic society the access to communications
data must pursue a legitimate aim as listed in paragraph 4.1; fulfil a pressing
social need and be proportionate to that aim.
4.4 Under
Article 26(5) of the Law, a designated person must also consider the conduct
involved in obtaining the communications data to be proportionate. Proportionality
is a crucial concept. In both the Law and this Code reference is made to the
conduct being proportionate. This means that even if a particular case which
interferes with a Convention right is aimed at pursuing a
legitimate aim (as listed in paragraph 4.1 above) this will not justify the interference
if the means used to achieve the aim are excessive in the circumstances. Any
interference with a Convention right should be carefully designed to meet the
objective in question and must not be arbitrary or unfair. Even taking all
these considerations into account, in a particular case an interference may
still not be justified because the impact on the individual or group is too
severe.
5 AUTHORIZATIONS
AND NOTICES
5.1 The
Law provides 2 different ways of authorizing access to communications data;
through an authorization under Article 26(3) and by a notice under Article
26(4). An authorization would allow the relevant public authority to collect or
retrieve the data itself. A notice is given to a postal or telecommunications
operator and requires that operator to collect or retrieve the data and provide
it to the public authority which served the notice. A designated person decides
whether or not an authorization should be granted or a notice given.
5.2 In
order to illustrate, an Article 26(3) authorization may be appropriate where:
· the
postal or telecommunications operator is not capable of collecting or
retrieving the communications data;
· it
is believed the investigation may be prejudiced if the postal or
telecommunications operator is asked to collect the data itself;
· there
is a prior agreement in place between the relevant public authority and the
postal or telecommunications operator as to the appropriate mechanisms for the
disclosure of communications data.
5.3 Except
where the Attorney General is the designated person, applications for
communications data may only be made by persons in the same public authority as
a designated person.
(a) Single
points of contact within relevant public authorities
5.4 Notices
(and where appropriate authorizations) for communications data should be
channelled through single points of contact within each public authority
(unless the exemption in paragraph 5.13 applies). This will provide for an
efficient regime, since the single points of contact will deal with the postal
or telecommunications operator on a regular basis. It will also help the public
authority to regulate itself. This will assist in reducing the burden on the
postal or telecommunications operator by such requests. Single points of contact
will be able to advise a designated person on whether an authorization or a
notice is appropriate.
5.5 The
single point of contact should be in a position to:
· where
appropriate, assess whether access to communications data is reasonably
practical for the postal or telecommunications operator;
· advise
applicants and designated persons on the practicalities of accessing different
types of communications data from different postal or telecommunications
operators;
· advise
applicants and designated persons on whether communications data falls under
Article 24(a), (b) or (c) of the Law;
· provide
safeguards for authentication;
· assess
any cost and resource implications to both the public authority and the postal
or telecommunications operator.
(b) Applications
to obtain communications data under the Law
5.6 The
application form is subject to inspection by the Commissioner and both the
applicant and the designated person may be required to justify their decisions.
Applications to obtain communications data under the Law should be made on a
standard form (paper or electronic) which must be retained by the public
authority (see Chapter 7 of this Code) and which should contain the following
minimum information:
· the
name (or designation) of the officer requesting the communications data;
· the
operation and person (if known) to which the requested data relates;
· a
description, in as much detail as possible, of the communications data
requested (there will also be a need to identify whether it is communications
data under Article 24(a), (b) or (c) of the Law);
· the
reason why obtaining the requested data is considered to be necessary for one
or more of the purposes in paragraph 4.1 above (the relevant purpose also needs
to be identified);
· an
explanation of why obtaining the data constitutes conduct proportionate to what
it seeks to achieve;
· where
appropriate, a consideration of collateral intrusion, the extent to which the
privacy of others may be affected and why that intrusion is justified; and
· the
timescale within which the communications data is required. Where the timescale
within which the material is required is any greater than routine, the
reasoning for this to be included.
5.7 The
application form should subsequently record whether access to communications
data was approved or denied, by whom and the date. Alternatively, the
application form can be marked with a cross-reference to the relevant authorization
or notice.
(c) Considerations
for designated person
5.8 A
designated person must take account of the following points, so that he or she
is in a position to justify decisions made:
· whether
the case justifies the accessing of communications data for one or more of the
purposes listed in paragraph 4.1, and why obtaining the data is necessary for that purpose;
· whether
obtaining access to the data by the conduct authorized by the authorization, or
required of the postal or telecommunications operator in the case of a notice,
is proportionate to what is sought to be achieved. (A designated person needs
to have in mind the conduct which he or she is authorizing or requiring in each
case. In making a judgement as to proportionality, a designated person needs to
have in mind whether he or she is granting an authorization or issuing a notice,
and also what the scope of the conduct is. For example, where the conduct
covers the provision of ongoing communications data);
· where
appropriate, where accessing the communications data is likely to result in
collateral intrusion, whether the circumstances of the case still justify that
access; and
· whether
any urgent timescale is justified.
(d) Content
of an authorization
5.9 An authorization
itself can only authorize conduct to which Chapter 2 of Part 2 of the Law
applies. A designated person will make a decision whether to grant an authorization
based upon the application which is made. The application form and the authorization
itself is not served upon the holder of communications data. The authorization
should be in a standard format (written or electronic) which must be retained
by the public authority (see Chapter 7 of this Code) and must contain the
following information:
· a
description of the conduct to which Chapter 2 of Part 2 of the Law applies that
is authorized;
· a
description of the required communications data;
· for
which of the purposes in paragraph 4.1 above the data is required; and
· the
name (or designation) or office of the designated person.
5.10 The authorization
should also contain:
· a
unique reference number.
(e) Content
of a notice
5.11 A designated
person will make a decision whether to issue a notice based upon the
application which is made. The application form is not served upon the holder
of communications data. The notice that they receive contains only enough information
to allow them to fulfil their duties under the Law. The notice served upon the
holder of the communications data should be in a standard format (written or
electronic) which must be retained by the public authority (see Chapter 7 of
this Code) and must contain the following information:
· a
description of the required communications data;
· for
which of the purposes in paragraph 4.1 above the data is required;
· the
name (or designation) and office of the designated person; and
· the
manner in which the data should be disclosed.
5.12 The notice
should also contain:
· a
unique reference number;
· where
appropriate, an indication of any urgency;
· a
statement stating that data is sought under the provisions of Chapter 2 of Part
2 of the Law, i.e. an explanation that
compliance with this notice is a legal requirement; and
· contact
details so that the veracity of the notice may be checked.
[A specimen copy of a notice can be found at Annex A to this Code].
(f) Oral
authority (urgent cases)
5.13 An application
for communications data may only be made and approved orally, on an urgent
basis, where it is necessary to obtain communications data for the purpose set
out in Article 26(2)(g) of the Law.
5.14 The fact of an
oral application and approval must be reached by the applicant and designated
person at the time or as soon as possible afterwards. In these circumstances,
an authorization under Article 26(3) of the Law must be completed (in written
or electronic format) as soon as practicable thereafter. In the case of a
notice under Article 26(4) of the Law, a designated person may make an oral
request to a postal or telecommunications operator to disclose communications
data urgently, which must be followed by a written or electronic notice to the
postal or telecommunications operator very shortly thereafter. In those urgent
situations, an Article 26(4) notice may be issued directly to the postal or
telecommunications operator, therefore relaxing the need to do so via a single
point of contact.
(g) Disclosure
of data
5.15 Notices under
Article 26(4) of the Law will only require the disclosure of data to:
· the
person giving the notice i.e. the designated
person; or
· to
another specified person who must be from the same relevant public authority. In
practice, this is likely to be the single points of contact.
6 VALIDITY
OF AUTHORIZATIONS AND NOTICES
(a) Duration
6.1 Authorizations
and notices will only be valid for one month. This period will begin when the authorization
is granted or the notice given. A designated person should specify a shorter
period if that is satisfied by the request, since this may go to the
proportionality requirements. For ‘future’ communications data
disclosure may only be required of data obtained by the postal or telecommunications
operator within this period i.e. up to one month. For ‘historical’
communications data disclosure may only be required of data in the possession
of the postal or telecommunications operator. A postal or telecommunications
operator should comply with an Article 26(4) notice as soon as is reasonably
practicable. Furthermore, they will not be required to supply data unless it is
reasonably practicable to do so.
(b) Renewal
6.2 An authorization
or notice may be renewed at any time during the month it is valid, by following
the same procedure as in obtaining a fresh authorization or notice.
6.3 A
renewed authorization or notice takes effect at the point at which the authorization
or notice it is renewing expires.
(c) Cancellation
6.4 A
designated person shall cancel a notice given under Article 26(4) of the Law as
soon as it is no longer necessary, or the
conduct is no longer proportionate to what is
sought to be achieved. The duty to cancel a notice falls on the designated
person who issued it.
6.5 The
appropriate level of official within each public authority who may cancel a
notice in the event of the designated person no longer being able to perform
this duty is to be prescribed by the Minister for Home Affairs by Order.
6.6 As
a matter of good practice, authorizations should also be cancelled in
accordance with the procedure above.
6.7 In
the case of an Article 26(4) notice, the relevant postal or telecommunications
operator will be informed of the cancellation.
7 RETENTION
OF RECORDS BY PUBLIC AUTHORITIES
7.1 Applications,
authorizations and notices for communications data must be retained by the
relevant public authority until it has been audited by the Commissioner. The
public authority should also keep a record of the dates on which the authorization
or notice is started and cancelled.
(a) Errors
7.2 Where
any errors have occurred in the granting of authorizations or the giving of
notices, a record should be kept, and a report and explanation sent to the
Commissioner as soon as is appropriate.
7.3 Applications
must also be retained to allow for the complaints Tribunal, under Part 5 of the
Law, to carry out its functions.
7.4 This
Code does not affect any other legal obligations placed on public authorities
to retain data under any other enactment.
(b) Data
protection safeguards
7.5 Communications
data, and all copies, extracts and summaries of it, must be handled and stored
securely. In addition, the requirements of the Data Protection (Jersey) Law
2005 and its data protection principles should be adhered to.
8 OVERSIGHT
8.1 The
Law provides for the Investigatory Powers Commissioner whose remit is to
provide independent oversight of the use of the powers contained within Part 1.
8.2 This
Code does not cover the exercise of the Commissioner’s functions. However,
it will be the duty of any person who uses the powers conferred by Chapter 2 of
Part 2 to comply with any request made by the Commissioner to provide any
information the Commissioner requires for the purposes of enabling him or her
to discharge his functions.
9 COMPLAINTS
9.1 The
Law establishes an independent Investigatory Powers Tribunal, which is made up
of a Court of Appeal Judge and 2 Jurats and is independent of the States. The
Tribunal has full powers to investigate and decide any case within its
jurisdiction.
9.2 This
Code does not cover the exercise of the Tribunal’s functions. However,
details of the relevant complaints procedure should be readily available, for
reference purposes, at public offices of those public authorities permitted to
access communications data under the provisions of Chapter 2 of Part 2 of the
Law. Where this is not possible, copies should be made available by post or email.
ANNEX A TO DRAFT CODE OF PRACTICE
Unique reference number: [to be completed
by the public authority]
[an indication of any urgency]
NOTICE UNDER
ARTICLE 26(4) OF THE
REGULATION OF
INVESTIGATORY POWERS (JERSEY) LAW 2005
REQUIRING COMMUNICATIONS
DATA
TO BE OBTAINED AND
DISCLOSED
To: [NAME OF POSTAL OR TELECOMMUNICATIONS
OPERATOR and address].
In accordance with Article 26(4) of the Regulation of Investigatory
Powers (Jersey) Law 200-, I hereby require you –
*(a) if not
already in possession of the data to which this notice relates, to obtain it;
and {for use in those cases where you are actually
asking for data to be captured for the duration of the notice - this should be
omitted where you are only requiring the disclosure of historical data}.
(b) to disclose all communications data to which
this notice relates, whether in your possession or subsequently obtained by
you.
Description of communications data to which
this notice relates:
[enter details of the communications data
required {distinguish here between data (a) to be obtained if not already in
the possession of the operator (omitting if not relevant) and (b) to be
disclosed - each should be described separately}].
*(a) [communications data to be obtained];
(b) [communications
data to be disclosed].
This notice is valid from [start date
– issue date of this notice] to [end date].
This must be no more than one month from the date of this notice, or earlier if
cancelled under Article 23(8)). This notice may be renewed at any time before
the end of the period of one month starting with [issue
date] by the giving of a further notice.
I believe that it is necessary for this communications data to be
obtained:
[List the purpose(s) that the
communications data is required for (from Article 22(2)) - follow the statutory
language exactly)].
In reaching this conclusion I have satisfied myself that obtaining
this data by the conduct required by this notice is proportionate to what is
sought to be achieved by so obtaining the data.
You are required to produce
the said communications data to [specify the person (a
name or designation must be specified), office, rank or position to whom the
data is to be disclosed] of [public authority]
for him to take away as specified below:
[Specify
the manner in which the data is to be disclosed].
Date
………………………
Designated Person
This notice may be verified by contacting the following:
[enter contact details i.e. of the Single
Point of Contact]
*Omit as appropriate
SCHEDULE
4
(Article 4)
Code of practice on covert surveillance
CONTENTS
CHAPTER 1 BACKGROUND
CHAPTER 2 GENERAL
RULES ON AUTHORIZATIONS
CHAPTER 3 SPECIAL
RULES ON AUTHORIZATIONS
CHAPTER 4 AUTHORIZATION
PROCEDURES FOR DIRECTED SURVEILLANCE
CHAPTER 5 AUTHORIZATION
PROCEDURES FOR INTRUSIVE SURVEILLANCE
CHAPTER 6 AUTHORIZATION
PROCEDURES FOR ENTRY ON OR INTERFERENCE WITH PROPERTY OR WITH WIRELESS
TELEGRAPHY
CHAPTER 7 OVERSIGHT
CHAPTER 8 COMPLAINTS
Commencement
This code applies to every authorization of covert surveillance or
of entry on or interference with property or with wireless telegraphy carried
out under Part 11 of the Police Procedures and Criminal Evidence (Jersey) Law
2003 or Part 3 of the Regulation of Investigatory Powers (Jersey) Law 2005 by
public authorities which begins on or after the day on which this code comes
into effect.
1 BACKGROUND
1.1 In
this code –
· “ECHR”
means the European Convention on Human Rights;
· “PPCE”
means the Police Procedures and Criminal Evidence (Jersey) Law 2003;
· “RIPL”
means the Regulation of Investigatory Powers (Jersey) Law 2005.
1.2 This
code of practice provides guidance on the use of covert surveillance by public
authorities under Part 3 of RIPL and on entry on, or interference with,
property (or with wireless telegraphy) under Part 11 of PPCE.
1.3 General
observation forms part of the duties of many law enforcement officers and other
public authorities and is not usually regulated by RIPL. For example, police
officers while on patrol to prevent and detect crime, maintain public safety
and prevent disorder may observe some suspicious activity or trading standards
officers may covertly observe and visit a shop to verify the supply or level of
supply of goods or services that may be liable to a restriction. Such
observation may involve the use of equipment to merely reinforce normal sensory
perception, such as binoculars, or the use of cameras, where this does not
involve systematic surveillance of an individual.
1.4 Although,
the provisions of RIPL or of this code of practice do not normally cover the
use of overt CCTV surveillance systems, since members of the public are aware
that such systems are in use, there may be occasions when public authorities
use overt CCTV systems for the purposes of a specific investigation or
operation. In such cases, authorization for intrusive or directed surveillance
may be necessary.
1.5 RIPL
provides that all codes of practice relating to the Law are admissible as
evidence in criminal and civil proceedings. If any provision of the code
appears relevant to any court or tribunal considering any such proceedings, or
to the Tribunal established under the RIPL, or to the Commissioner responsible
for overseeing the powers conferred by RIPL, it must be taken into account.
General extent of powers
1.6 Authorizations
under RIPL can be given for surveillance both inside and outside Jersey.
Authorizations for actions outside Jersey can only validate them for the
purposes of proceedings in Jersey. An authorization under Part 2 of RIPL does
not take into account the requirements of the country outside Jersey in which
the investigation or operation is taking place.
Use of material in evidence
1.7 Material
obtained through covert surveillance may be used as evidence in criminal
proceedings. The proper authorization of surveillance should ensure the
admissibility of such evidence under the customary law, Article 76 of PPCE and
the Human Rights (Jersey) Law 2000. Furthermore, the product of the
surveillance described in this code is subject to the ordinary rules for
retention and disclosure of relevant unused material.
Directed surveillance, intrusive surveillance
and entry on or interference with property or with wireless telegraphy
1.8 Directed
surveillance is defined in Article 32(2) of RIPL as surveillance which is
covert, but not intrusive, and undertaken:
(a) for
the purposes of a specific investigation or 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 authorization
under Part 3 of RIPL to be sought for the carrying out of the surveillance.
1.9 Directed
surveillance investigations or operations can only be carried out by those
public authorities who are listed in or added to Part 1 and Part 2 of Schedule
1 to RIPL.
1.10 Intrusive
surveillance is defined in Article 32(3) of RIPL as 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.
1.11 Applications
to carry out intrusive surveillance can only be granted by the Attorney
General, an application made by one of the officers listed in Article 37(1) of
RIPL or by a member or official to whom Article 37(7) of RIPL applies.
1.12 Applications
to enter on or interfere with property or with wireless telegraphy can only be
made to and granted by the Attorney General on an application by an official
listed in Article 101(1A) of PPCE.
2 GENERAL
RULES ON AUTHORIZATIONS
2.1 An
authorization under Part 3 of RIPL will provide lawful authority for a public authority
to carry out surveillance. Responsibility for authorizing surveillance
investigations or operations will vary, depending on whether the authorization
is for intrusive surveillance or directed surveillance, and which public
authority is involved. For the purposes of Chapters 2 and 3 of this code the
authorizing officer or the person who makes an application to the Attorney
General will be referred to as an ‘authorizing officer’.
2.2 Part
3 of RIPL does not impose a requirement on public authorities to seek or obtain
an authorization where, under RIPL, one is available (see Article 57 of RIPL).
Nevertheless, where there is an interference by a public authority with the
right to respect for private and family life guaranteed under Article 8 of the
ECHR, and where there is no other source of lawful authority, the consequence
of not obtaining an authorization under RIPL may be that the action is unlawful
by virtue of the Human Rights (Jersey) Law 2000.
2.3 Public
authorities are therefore strongly recommended to seek an authorization where
the surveillance is likely to interfere with a person’s Article 8 rights
to privacy by obtaining private information about that person, whether or not
that person is the subject of the investigation or operation. Obtaining an
authorization will ensure that the action is carried out in accordance with law
and subject to stringent safeguards against abuse.
Necessity and Proportionality
2.4 Obtaining
an authorization under RIPL or PPCE will only ensure that there is a justifiable
interference with an individual's Article 8 rights if it is necessary and
proportionate for these activities to take place. RIPL first requires that the
person granting an authorization believe that the authorization is necessary in
the circumstances of the particular case for one or more of the statutory
grounds in Article 34(3) of RIPL for directed surveillance and in Article 37(3)
of RIPL for intrusive surveillance.
2.5 Then,
if the activities are necessary, the person granting the authorization must
believe that they are proportionate to what is sought to be achieved by
carrying them out. 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. The activity will not be proportionate if it is
excessive in the circumstances of the case or if the information which is
sought could reasonably be obtained by other less intrusive means. All such
activity should be carefully managed to meet the objective in question and must
not be arbitrary or unfair.
Collateral Intrusion
2.6 Before
authorizing surveillance the authorizing officer should also take into account
the risk of intrusion into the privacy of persons other than those who are
directly the subjects of the investigation or operation (collateral intrusion).
Measures should be taken, wherever practicable, to avoid or minimise
unnecessary intrusion into the lives of those not directly connected with the
investigation or operation.
2.7 An
application for an authorization should include an assessment of the risk of
any collateral intrusion. The authorizing officer should take this into
account, when considering the proportionality of the surveillance.
2.8 Those
carrying out the surveillance should inform the authorizing officer if the
investigation or operation unexpectedly interferes with the privacy of
individuals who are not covered by the authorization. When the original
authorization may not be sufficient, consideration should be given to whether
the authorization needs to be amended and reauthorized or a new authorization
is required.
2.9 Any
person granting or applying for an authorization or warrant will also need to
be aware of particular sensitivities in the local community where the surveillance
is taking place and of similar activities being undertaken by other public
authorities which could impact on the deployment of surveillance. Where the
authorizing officer is the Agent of the Impôts or the Chief Inspector of
Immigration, he or she should consult a senior officer within the States of
Jersey police.
2.10 The matters in
paragraphs 2.1 ‑ 2.9 must also be taken into account when
applying for authorizations or warrants for entry on or interference with
property or with wireless telegraphy. In particular they must be necessary in
the circumstances of the particular case for one of the statutory ground listed
Article 101(2)(a) of PPCE, proportionate and when exercised steps should be
taken to minimise collateral intrusion.
Combined authorizations
2.11 A single
authorization may combine:
· 2
or more different authorizations under Part 3 of RIPL;
· an
authorization under Part 3 of RIPL and an authorization under Part 11 of PPCE.
2.12 For example, a
single authorization may combine authorizations for directed and intrusive
surveillance. The provisions applicable in the case of each of the
authorizations must be considered separately. Thus, the Chief Officer of the
States of Jersey Police can authorize the directed surveillance but the
intrusive surveillance needs the separate authorization of the Attorney
General. Where an authorization for directed surveillance or the use or conduct
of a covert human intelligence source is combined with an Attorney
General’s authorization for intrusive surveillance, the combined
authorization must be issued by the Attorney General. However, this does not
preclude obtaining separate authorizations.
2.13 In cases where
one agency is acting on behalf of another, it is usually for the tasking agency
to obtain or provide the authorization. For example, where surveillance is
carried out by the States Police on behalf of Customs or a Parish authority,
authorizations would be sought by the police and granted by the Chief Officer.
In a case where the Security Service is acting in support of the police or
other law enforcement agency, in the field of serious crime, the Security
Service would normally seek authorizations.
Central Record of all authorizations
2.14 A centrally
retrievable record of all authorizations should be held by each public
authority and regularly updated whenever an authorization is granted, renewed
or cancelled. The record should be made available to the Commissioner upon
request. These records should be retained for a period of at least 3 years from
the ending of the authorization and should contain the following information:
· the
type of authorization;
· the
date the authorization was given;
· who
gave the authorization;
· the
unique reference number (URN) of the investigation or operation;
· the
title of the investigation or operation, including a brief description and
names of subjects, if known;
· whether
the urgency provisions were used, and if so why.
· if
the authorization is renewed, when it was renewed and who authorized the
renewal, including the name and rank/grade of the authorizing officer;
· whether
the investigation or operation is likely to result in obtaining confidential
information as defined in this code of practice;
· the
date the authorization was cancelled.
2.15 In all cases,
the relevant authority should maintain the following documentation which need
not form part of the centrally retrievable record:
· a
copy of the application and a copy of the authorization together with any
supplementary documentation and notification of the approval given by the
authorizing officer;
· a
record of the period over which the surveillance has taken place;
· the
frequency of reviews prescribed by the authorizing officer;
· a
record of the result of each review of the authorization;
· a
copy of any renewal of an authorization, together with the supporting
documentation submitted when the renewal was requested;
· the
date and time when any instruction was given by the authorizing officer.
Retention and destruction of the product
2.16 Where the
product of surveillance could be relevant to pending or future criminal or
civil proceedings, it should be retained in accordance with established
disclosure requirements for a suitable further period, commensurate to any
subsequent review.
2.17 In the case of
the law enforcement agencies particular attention is drawn to the requirements
of customary law and the disclosures procedures in criminal proceedings. This
requires that material which is obtained in the course of a criminal
investigation and which may be relevant to the investigation must be recorded
and retained.
2.18 There is
nothing in RIPL which prevents material obtained from properly authorized
surveillance from being used in other investigations. Each public authority
must ensure that arrangements are in place for the handling, storage and
destruction of material obtained through the use of covert surveillance.
Authorizing officers must ensure compliance with the appropriate data
protection requirements and any relevant codes of practice produced by individual
authorities relating to the handling and storage of material.
The Intelligence Services, MOD and HM Forces
2.19 The heads of
these agencies are responsible for ensuring that arrangements exist for
securing that no information is stored by the authorities, except as necessary
for the proper discharge of their functions. They are also responsible for
arrangements to control onward disclosure.
3 SPECIAL
RULES ON AUTHORIZATIONS
3.1 RIPL
does not provide any special protection for ‘confidential information’.
Nevertheless, particular care should be taken in cases where the subject of the
investigation or operation might reasonably expect a high degree of privacy, or
where confidential information is involved. Confidential information consists
of matters subject to legal privilege, confidential personal information or
confidential journalistic material. So, for example, extra care should be given
where, through the use of surveillance, it would be possible to acquire
knowledge of discussions between a minister of religion and an individual
relating to the latter’s spiritual welfare, or where matters of medical
or journalistic confidentiality or legal privilege may be involved.
3.2 In
cases where it is thought that through the use of surveillance, it is likely that
confidential information will be acquired, it is recommended that advice is
sought from the Law Officers’ Department.
Communications Subject to Legal Privilege
3.3 Article
5 of PPCE describes those matters that are subject to legal privilege.
3.4 Legal
privilege does not apply to communications made with the intention of
furthering a criminal purpose (whether the lawyer is acting unwittingly or
culpably). Legally privileged communications will lose their protection if
there are grounds to believe, for example, that the professional legal adviser
is intending to hold or use them for a criminal purpose. But privilege is not
lost if a professional legal adviser is properly advising a person who is
suspected of having committed a criminal offence. The concept of legal
privilege applies to the provision of professional legal advice by any
individual, agency or organisation qualified to do so.
3.5 RIPL
does not provide any special protection for legally privileged information.
Nevertheless, such information is particularly sensitive and surveillance which
acquires such material may engage Article 6 of the ECHR (right to a fair trial)
as well as Article 8. Legally privileged information obtained by surveillance
is extremely unlikely ever to be admissible as evidence in criminal
proceedings. Moreover, the mere fact that such surveillance has taken place may
lead to any related criminal proceedings being stayed as an abuse of process.
Accordingly, action which may lead to such information being acquired is
subject to additional safeguards under this code.
3.6 In
general, an application for surveillance which is likely to result in the
acquisition of legally privileged information should only be made in
exceptional and compelling circumstances. Full regard should be had to the
particular proportionality issues such surveillance raises. The application
should include, in addition to the reasons why it is considered necessary for
the surveillance to take place, an assessment of how likely it is that
information subject to legal privilege will be acquired. In addition, the
application should clearly state whether the purpose (or one of the purposes)
of the surveillance is to obtain legally privileged information.
3.7 This
assessment will be taken into account by the authorizing officer in deciding
whether the proposed surveillance is necessary and proportionate under Article
34 of RIPL for directed surveillance and under Article 35 for intrusive
surveillance. The authorizing officer may require regular reporting so as to be
able to decide whether the authorization should continue. In those cases where
legally privileged information has been acquired and retained, the matter
should be reported to the Law Officers’ Department and to the
Commissioner during his or her next inspection and the material be made
available to the Commissioner if requested.
3.8 A
substantial proportion of the communications between a lawyer and his or her
client(s) may be subject to legal privilege. Therefore, any case where a lawyer
is the subject of an investigation or operation should be notified to the
Commissioner and any material which has been retained should be made available
to the Commissioner if requested.
3.9 Where
there is any doubt as to the handling and dissemination of information which
may be subject to legal privilege, advice should be sought from a legal adviser
within the relevant public authority before any further dissemination of the
material takes place. Similar advice should also be sought where there is doubt
over whether information is not subject to legal privilege due to the “in
furtherance of a criminal purpose” exception. The retention of legally
privileged information, or its dissemination to an outside body, should be
accompanied by a clear warning that it is subject to legal privilege. It should
be safeguarded by taking reasonable steps to ensure there is no possibility of
it becoming available, or its contents becoming known, to any person whose
possession of it might prejudice any criminal or civil proceedings related to
the information. Any dissemination of legally privileged material to an outside
body should be notified to the Law Officers’ Department and to the
Commissioner during his or her next inspection.
Communications involving Confidential
Personal Information and Confidential Journalistic Material
3.10 Similar
consideration must also be given to authorizations that involve confidential
personal information and confidential journalistic material. In those cases
where confidential personal information and confidential journalistic material
has been acquired and retained, the matter should be reported to the Law
Officers’ Department and to the Commissioner during his or her next
inspection and the material be made available to the Commissioner if requested.
3.11 Confidential
personal information is information held in confidence relating to the physical
or mental health or spiritual counselling concerning an individual (whether
living or dead) who can be identified from it. Such information, which can
include both oral and written communications, is held in confidence if it is
held subject to an express or implied undertaking to hold it in confidence or
it is subject to a restriction on disclosure or an obligation of
confidentiality contained in existing legislation. Examples might include
consultations between a health professional and a patient, or information from
a patient’s medical records.
3.12 Spiritual
counselling means conversations between an individual and a Minister of
Religion acting in his or her official capacity, where the individual being
counselled is seeking or the Minister is imparting forgiveness, absolution or
the resolution of conscience with the authority of the Divine Being(s) of their
faith.
3.13 Confidential
journalistic material includes material acquired or created for the purposes of
journalism and held subject to an undertaking to hold it in confidence, as well
as communications resulting in information being acquired for the purposes of
journalism and held subject to such an undertaking.
4 AUTHORIZATION
PROCEDURES FOR DIRECTED SURVEILLANCE
4.1 Directed
surveillance is defined in Article 32(1) of RIPL as surveillance which is
covert, but not intrusive, and undertaken:
(a) for
the purposes of a specific investigation or 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 authorization
under Part 3 of RIPL to be sought for the carrying out of the surveillance.
4.2 Covert
surveillance is defined in Article 32(8)(a) of RIPL as any surveillance which
is carried out in a manner calculated to ensure that the persons subject to the
surveillance are unaware that it is or may be taking place.
4.3 Private
information is defined in Article 32(9) of RIPL as including any information
relating to a person’s private or family life. The concept of private
information should be broadly interpreted to include an individual’s
private or personal relationship with others. Family life should be treated as
extending beyond the formal relationships created by marriage.
4.4 Directed
surveillance does not include covert surveillance carried out by way of an
immediate response to events or circumstances which, by their very nature,
could not have been foreseen. For example, a police officer would not require
an authorization to conceal himself or herself and observe a suspicious person
that the officer came across in the course of a patrol.
4.5 By
virtue of Article 31(3) of RIPL, surveillance includes the interception of
postal and telephone communications where the sender or recipient consents to
the reading of or listening to or recording of the communication (as the case
may be). For further details see paragraphs 4.30 ‑ 4.32 of this
code.
4.6 Surveillance
in residential premises or in private vehicles is defined as intrusive
surveillance in Article 32(2) of RIPL and is dealt with in Chapter 5 of this
code. However, where surveillance is carried out by a device designed or
adapted principally for the purpose of providing information about the location
of a vehicle, the activity is directed surveillance and should be authorized
accordingly.
4.7 Directed
surveillance does not include entry on or interference with property or with
wireless telegraphy. These activities are subject to a separate regime of authorization
or warranty, as set out in Chapter 6 of this code.
4.8 Directed
surveillance includes covert surveillance within office premises, (as defined
in paragraph 6.31 of this code). Authorizing officers are reminded that
confidential information should be afforded an enhanced level of protection.
Authorization
Procedures
4.9 Under
Article 34(3) of RIPL an authorization for directed surveillance may be granted
by a “designated person” (the authorizing officer) where he or she
believes that the authorization is necessary in the circumstances of the
particular case:
· in
the interests of national security,;
· for
the purpose of preventing and detecting crime or of preventing
disorder;
· in
the interests of the economic well-being of Jersey;
· in
the interests of public safety;
· for
the purpose of protecting public health;
· for
the purpose of assessing or collecting any tax, duty, levy or other imposition,
contribution or charge payable to a government department; or
· for
any other purpose prescribed by an Order made by the Minister for Home Affairs.
4.10 The
authorizing officer must also believe that the surveillance is proportionate to
what it seeks to achieve.
4.11 The public
authorities entitled to apply for and the authorizing officers entitled to
authorize directed surveillance are listed in Schedule 2 to RIPL.
Responsibility for authorizing the carrying out of directed surveillance rests
with the authorizing officer and requires the personal authority of the
authorizing officer. Where an authorization for directed surveillance is
combined with an Attorney General’s authorization for intrusive
surveillance, the combined authorization must be issued by the Attorney
General.
4.12 The
authorizing officer must give authorizations in writing, except that in urgent
cases, they may be given orally by the authorizing officer. In such cases, a
statement that the authorizing officer has expressly authorized the action
should be recorded in writing by the applicant as soon as is reasonably
practicable.
4.13 A case is not
normally to be regarded as urgent unless the time that would elapse before the
authorizing officer was available to grant the authorization would, in the
judgement of the person giving the authorization, be likely to endanger life or
jeopardise the investigation or operation for which the authorization was being
given. An authorization is not to be regarded as urgent where the need for an
authorization has been neglected or the urgency is of the authorizing
officer’s own making.
4.14 Authorizing
officers should not be responsible for authorizing investigations or operations
in which they are directly involved, although it is recognized that this may
sometimes be unavoidable, especially in the case of small organizations. Where
an authorizing officer authorizes such an investigation or operation the
central record of authorizations (see paragraphs 2.14 -2.15) should highlight
this and the attention of the Commissioner should be invited to it.
4.15 Authorizing
officers within the Police, Customs and Immigration may only grant
authorizations on application by a member of the force or their Department as
the case may be.
Information to be provided in applications
for authorization
4.16 A written
application for authorization for directed surveillance should describe any
conduct to be authorized and the purpose of the investigation or operation. The
application should also include:
· the
reasons why the authorization is necessary in the particular case and on the
grounds (e.g. for the purpose of preventing or
detecting crime) listed in Article 34(3) of RIPL;
· the
reasons why the surveillance is considered proportionate to what it seeks to
achieve;
· the
nature of the surveillance;
· the
identities, where known, of those to be the subject of the surveillance;
· an
explanation of the information which it is desired to obtain as a result of the
surveillance;
· the
details of any potential collateral intrusion and why the intrusion is
justified;
· the
details of any confidential information that is likely to be obtained as a
consequence of the surveillance.
· the
level of authority required (or recommended where that is different) for the
surveillance; and
· a
subsequent record of whether authority was given or refused, by whom and the
time and date.
4.17 Additionally,
in urgent cases, the authorization should record (as the case may be) the
reasons why it was not reasonably practicable for the application to be
considered by the authorizing officer and the reasons why the authorizing
officer or the officer entitled to act in urgent cases considered the case so
urgent that an oral instead of a written authorization was given; and/or
4.18 Where the
authorization is oral, the detail referred to above should be recorded in
writing by the applicant as soon as reasonably practicable.
Duration
of authorizations
4.19 A written
authorization granted by an authorizing officer will cease to have effect
(unless renewed) at the end of a period of 3 months beginning with the day on
which it took effect.
4.20 Urgent oral
authorizations or written authorizations granted by a person who is entitled to
act only in urgent cases will, unless renewed, cease to have effect after 72
hours, beginning with the time when the authorization was granted or renewed.
Reviews
4.21 Regular
reviews of authorizations should be undertaken to assess the need for the
surveillance to continue. The results of a review should be recorded on the
central record of authorizations (see paragraphs 2.14 - 2.15). Particular
attention is drawn to the need to review authorizations frequently where the
surveillance provides access to confidential information or involves collateral
intrusion.
4.22 In each case
the authorizing officer within each public authority should determine how often
a review should take place. This should be as frequently as is considered
necessary and practicable.
Renewals
4.23 If at any time
before an authorization would cease to have effect, the authorizing officer
considers it necessary for the authorization to continue for the purpose for
which it was given, he may renew it in writing for a further period of 3
months. Renewals may also be granted orally in urgent cases and last for a
period of 72 hours.
4.24 A renewal
takes effect at the time at which, or day on which the authorization would have
ceased to have effect but for the renewal. An application for renewal should
not be made until shortly before the authorization period is drawing to an end.
Any person who would be entitled to grant a new authorization can renew an
authorization. Authorizations may be renewed more than once, provided they
continue to meet the criteria for authorization.
4.25 All
applications for the renewal of an authorization for directed surveillance
should record:
· whether
this is the first renewal or every occasion on which the authorization has been
renewed previously;
· any
significant changes to the information in paragraph 4.16;
· the
reasons why it is necessary to continue with the directed surveillance;
· the
content and value to the investigation or operation of the information so far
obtained by the surveillance;
· the
results of regular reviews of the investigation or operation.
4.26 Authorizations
may be renewed more than once, if necessary, and the renewal should be kept/recorded
as part of the central record of authorizations (see paragraphs 2.14 - 2.15).
Cancellations
4.27 The
authorizing officer who granted or last renewed the authorization (or his or
her deputy) must cancel it if the officer is satisfied that the directed
surveillance no longer meets the criteria upon which it was authorized. Where
the authorizing officer is no longer available, this duty will fall on the
person who is acting as authorizing officer or has taken over the rôle of
authorizing officer.
Ceasing of surveillance activity
4.28 As soon as the
decision is taken that directed surveillance should be discontinued, the
instruction must be given to those involved to stop all surveillance of the
subject(s). The date and time when such an instruction was given should be
recorded in the central record of authorizations (see paragraphs 2.14 - 2.15)
and the notification of cancellation where relevant.
ADDITIONAL RULES
Recording of telephone conversations
4.29 Subject to
paragraph 4.30, the interception of communications sent by post or by means of
public telecommunications systems or private telecommunications systems
attached to the public network may be authorized only by the Attorney General,
in accordance with the terms of Part 1 of RIPL. Nothing in this code should be
taken as granting dispensation from the requirements of that Part of RIPL.
4.30 Part 2 of RIPL
provides certain exceptions to the rule that interception of telephone
conversations must be warranted under that Part. This includes the situation in
which one party to the communication consents to the interception, it may be
authorized in accordance with Article 31(3) of RIPL provided that there is no
interception warrant authorizing the interception. In such cases, the
interception is treated as directed surveillance.
4.31 The use of a
surveillance device should not be ruled out simply because it may incidentally
pick up one or both ends of a telephone conversation, and any such product can
be treated as having been lawfully obtained. However, its use would not be
appropriate where the sole purpose is to overhear speech which, at the time of
monitoring, is being transmitted by a telecommunications system. In such cases
an application should be made for an interception of communication warrant under
Article 10 of RIPL.
5 AUTHORIZATION
PROCEDURES FOR INTRUSIVE SURVEILLANCE
5.1 Intrusive
surveillance is define in Article 32(2) of RIPL as 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.
5.2 Covert
surveillance is defined in Article 32(9)(a) of RIPL as any surveillance which
is carried out in a manner calculated to ensure that the persons subject to the
surveillance are unaware that it is or may be taking place.
5.3 Where
surveillance is carried out in relation to anything taking place on any
residential premises or in any private vehicle by means of a device, without
that device being present on the premises, or in the vehicle, it is not
intrusive unless the device 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. Thus, an observation post outside premises,
which provides a limited view and no sound of what is happening inside the
premises would not be considered as intrusive surveillance.
5.4 Residential
premises are defined in Article 30(1) of RIPL. The definition includes hotel
rooms, bedrooms in barracks, and police and prison cells but not any common
area to which a person is allowed access in connection with his or her
occupation of such accommodation e.g. a hotel
lounge.
5.5 A
private vehicle is defined in Article 30(1) of RIPL as any vehicle which is
used primarily for the private purposes of the person who owns it or of a
person otherwise having the right to use it. A person does not have a right to
use a motor vehicle if his or her right to use it derives only from the
person’s having paid, or undertaken to pay, for the use of the vehicle
and its driver for a particular journey.
5.6 In
many cases, a surveillance investigation or operation may involve both
intrusive surveillance and entry on or interference with property or with
wireless telegraphy. In such cases, both activities need authorization. This
can be done as a combined authorization (see paragraph 2.11).
5.7 An
authorization for intrusive surveillance may be issued by the Attorney General.
5.8 All
authorizations require the personal authority of the Attorney General. Any
members or officials of the intelligence services, the Ministry of Defence and
HM Forces can apply to the Attorney General for an intrusive surveillance
warrant. Under Article 37(2) of RIPL the Attorney General may not authorize
intrusive surveillance unless he or she believes –
(a) that
the authorization is necessary in the circumstances of the particular case on
the grounds that it is:
· in
the interests of national security;
· for
the purpose of preventing or detecting serious crime; or
· in
the interests of the economic well-being of Jersey;
and
(b) that
the surveillance is proportionate to what it seeks to achieve.
5.9 A
factor which must be taken into account in deciding whether an authorization is
necessary and proportionate is whether the information which it is thought
necessary to obtain by means of the intrusive surveillance could reasonably be
obtained by other less intrusive means.
Authorizations Procedures for Police, Customs
and Excise and Immigration
5.10 The Attorney
General will generally give authorizations in writing. However, in urgent
cases, they may be given orally. In an urgent oral case, a statement that the
Attorney General has expressly authorized the conduct should be recorded in
writing by the applicant as soon as is reasonably practicable.
5.11 A case is not
normally to be regarded as urgent unless the time that would elapse before the
Attorney General was available to grant the authorization would, in the
judgement of the person giving the authorization, be likely to endanger life or
jeopardise the investigation or operation for which the authorization was being
given. An authorization is not to be regarded as urgent where the need for an
authorization has been neglected or the urgency is of the authorizing
officer’s own making.
5.12 Applications
should be in writing and describe the conduct to be authorized and the purpose
of the investigation or operation. The application should specify:
· the
reasons why the authorization is necessary in the particular case and on the
grounds (e.g. for the purpose of preventing or
detecting serious crime) listed in Article 37(3) of RIPL;
· the
reasons why the surveillance is considered proportionate to what it seeks to
achieve;
· the
nature of the surveillance;
· the
residential premises or private vehicle in relation to which the surveillance
will take place;
· the
identities, where known, of those to be the subject of the surveillance;
· an
explanation of the information which it is desired to obtain as a result of the
surveillance;
· details
of any potential collateral intrusion and why the intrusion is justified;
· details
of any confidential information that is likely to be obtained as a consequence
of the surveillance.
· a
subsequent record should be made of whether authority was given or refused, and
the time and date.
5.13 Additionally,
in urgent cases, the authorization should record the reasons why the Attorney
General considered the case so urgent that an oral instead of a written
authorization was given.
5.14 Where the
application is oral, the detail referred to above should be recorded in writing
as soon as reasonably practicable.
Notifications to Investigatory Powers
Commissioner
5.15 The Attorney
General must give notice in writing, at least every 12 months, of the grant,
renewal or cancellation of an authorization to the Commissioner, in accordance
with whatever arrangements have been made by the Commissioner.
5.16 In respect of
urgent cases, the notification must specify the grounds on which the case was
believed to be one of urgency. The urgency provisions should not be used
routinely.
All intrusive surveillance authorizations
5.17 Paragraphs
5.18 to 5.27 deal with the duration, renewal and cancellation of
authorizations. Unless otherwise specified the guidance below applies to all
authorizations.
Duration of Authorizations
5.18 A written
authorization granted by the Attorney General, will cease to have effect (unless
renewed) at the end of a period of 3 months,
beginning with the day on which it took effect.
5.19 Oral
authorizations given in urgent cases by the Attorney General will cease to have
effect (unless renewed) at the end of the period of 72
hours beginning with the time when they took effect.
Attorney General’s intelligence
services authorizations
5.20 A warrant
issued by the Attorney General will cease to have effect at the end of a period
of 3 months beginning with the day on which it was issued.
Renewals
5.21 If at any time
before an authorization expires the Attorney General considers the
authorization should continue to have effect for the purpose for which it was
issued, the Attorney General may renew it in writing for a further period of 3 months.
5.22 Subject to
paragraph 5.36, if at any time before the day on which the Attorney
General’s authorization expires, the Attorney General considers it
necessary for the warrant to be renewed for the purpose for which it was
issued, he or she may renew it in writing for a further period of 3 months,
beginning with the day on which it would have ceased to have effect, but for
the renewal.
Intelligence services authorizations
5.23 All applications for a renewal of an authorization or
warrant should record:
· whether
this is the first renewal or every occasion on which the warrant/authorization
has been renewed previously;
· any
significant changes to the information listed in paragraph 5.12;
· the
reasons why it is necessary to continue with the intrusive surveillance;
· the
content and value to the investigation or operation of the product so far
obtained by the surveillance;
· the
results of regular reviews of the investigation or operation.
5.24 Authorizations
may be renewed more than once, if necessary, and the renewal should be
kept/recorded as part of the central record of authorizations (see paragraphs
2.14 - 2.15).
Reviews
5.25 Regular
reviews of authorizations should be undertaken to assess the need for the
surveillance to continue. The results of a review should be recorded on the
central record of authorizations (see paragraphs 2.14 - 2.15). Particular
attention is drawn to the need to review authorizations frequently where the
intrusive surveillance provides access to confidential information or involves
collateral intrusion.
5.26 The member or
official who made the application to the Attorney General should determine how
often a review should take place. This should be as frequently as is considered
necessary and practicable.
Cancellations
5.27 The Attorney
General shall cancel an authorization if he or she is satisfied that the
surveillance no longer meets the criteria upon which it was authorized.
Ceasing of surveillance activity
5.28 As soon as the
decision is taken that the intrusive surveillance should be discontinued,
instructions must be given to those involved to stop all surveillance of the
subject(s). The date and time when such an instruction was given should be
recorded in the central record of authorizations (see paragraphs 2.14 - 2.15)
and the notification of cancellation where relevant.
6 AUTHORIZATION
PROCEDURES FOR ENTRY ON OR INTERFERENCE WITH PROPERTY OR WITH WIRELESS
TELEGRAPHY
6.1 Part
11 of PPCE provides lawful authority for entry on or interference with property
or with wireless telegraphy by the police, intelligence services, customs and
excise, and immigration.
6.2 In
many cases a covert surveillance operation may involve both intrusive
surveillance and entry on or interference with property or with wireless
telegraphy. This can be done as a combined authorization, although the criteria
for authorization of each activity must be considered separately (see paragraph
2.11).
Authorizations for entry on or interference
with property or with wireless telegraphy by the police, Customs and
Immigration
6.3 Responsibility
for such authorizations rests with the Attorney General.
6.4 Authorizations
under PPCE may not be necessary where the public authority is acting with the
consent of a person able to give permission in respect of relevant property,
although consideration should still be given to the need to obtain an
authorization under Part 3 of RIPL.
6.5 In
giving an authorization for entry on or interference with property or with
wireless telegraphy under Article 101(2) of PPCE, the Attorney General must
believe that:
· it
is necessary for the action specified to be taken for the purpose of preventing
or detecting serious crime in the interests of national security; and
· that
the taking of the action is proportionate to what the action seeks to achieve.
6.6 The
Attorney General must take into account whether what it is thought necessary to
achieve by the authorized conduct could reasonably be achieved by other means.
6.7 Any
person applying for an authorization or warrant to enter on or interfere with
property or with wireless telegraphy will also need to be aware of particular
sensitivities in the local community where the entry or interference is taking
place and of similar activities being undertaken by other public authorities
which could impact on the deployment.
Authorization procedures for entry on or
interference with property or with wireless telegraphy by the police, Customs
and Immigration
6.8 Authorizations
will be given in writing by the Attorney General. However, in urgent cases,
they may be given orally. In such cases, a statement that the Attorney General
has expressly authorized the action should be recorded in writing by the
applicant as soon as is reasonably practicable. This should be done by the
person with whom the Attorney General spoke.
6.9 Applications
to the Attorney General for authorization must be made in writing by the Chief
Officer, Agent of the Impôts or Chief Inspector of Immigration and should
specify:
· the
identity or identities of those to be targeted (where known);
· the
property which the entry or interference with will affect;
· the
identity of individuals and/or categories of people, where known, who are
likely to be affected by collateral intrusion;
· details
of the offence planned or committed;
· details
of the intrusive surveillance involved;
· how
the authorization criteria (as set out in paragraphs 6.6 and 6.7) have been
met;
· any
action which may be necessary to retrieve any equipment used in the
surveillance;
· in
case of a renewal, the results obtained so far, or a full explanation of the
failure to obtain any results; and
· whether
an authorization was given or refused, by whom and the time and date.
6.10 Additionally,
in urgent cases, the authorization should record the reasons why the applying
officer considered the case so urgent that an oral instead of a written
authorization was given.
6.11 Where the
application is oral, the information referred to above should be recorded in
writing by the applicant as soon as reasonably practicable.
Notifications to Surveillance Commissioners
6.12 The Attorney
General must give notice in writing when he or she grants, renews or cancels an
authorization to the Commissioner, at least every 12 months, in accordance with
arrangements made by the Commissioner.
Duration of authorizations
6.13 Written
authorizations will cease to have effect at the end of a period of 3 months
beginning with the day on which they took effect.
6.14 Oral
authorizations given in urgent cases will cease at the end of the period of 72 hours beginning with the time when they took effect.
Renewals
6.15 If at any time
before the day on which an authorization expires the Attorney General considers
the authorization should continue to have effect for the purpose for which it
was issued, the Attorney General may renew it in writing for a period of 3
months beginning with the day on which the authorization would otherwise have
ceased to have effect. Authorizations may be renewed more than once, if
necessary, and the renewal should be recorded on the authorization record (see
paragraph 6.27).
6.16 The
Commissioner must be notified of renewals of authorizations.
Reviews
6.17 The Attorney
General should ensure regular reviews are made of authorizations, to assess the
need for the entry on or interference with property or with wireless telegraphy
to continue. This should be recorded on the authorization record (see paragraph
6.27). The Attorney General should determine how often a review should take
place when giving an authorization and who should undertake it. This can be
delegated to a senior officer of the authority that made the application. This
should be as frequently as is considered necessary and practicable and at no
greater interval than one month. Particular attention is drawn to the need to
review authorizations and renewals regularly and frequently where the entry on
or interference with property or with wireless telegraphy provides access to
confidential information or involves collateral intrusion.
Cancellations
6.18 The Attorney
General must cancel an authorization, or the person who made the application to
the Attorney General must apply for its cancellation, if he or she is satisfied
that the authorization no longer meets the criteria upon which it was
authorized.
6.19 The Commissioner
must be notified of cancellations of authorizations.
6.20 The Tribunal
has the power to cancel an authorization if satisfied that, at any time after
an authorization was given or renewed, there were no reasonable grounds for
believing the matters set out in paragraphs 6.5 and 6.6. In such circumstances,
the Tribunal may order the destruction of records, in whole or in part, other
than any that are required for pending criminal or civil proceedings.
Authorization record
6.21 An
authorization record should be created which records:
· the
time and date when an authorization is given;
· whether
an authorization is in written or oral form;
· the
time and date when it was notified to the Commissioner;
The authorization record should also record:
· every
occasion when entry on or interference with property or with wireless
telegraphy has occurred;
· the
result of periodic reviews of the authorization;
· the
date of every renewal; and
· it
should record the time and date when any instruction was given by the
authorizing officer to cease the interference with property or with wireless
telegraphy.
Ceasing of entry on or interference with
property or with wireless telegraphy
6.22 Once an
authorization or renewal expires or is cancelled or quashed, the Attorney
General must immediately instruct those carrying out the surveillance to cease
all the actions authorized for the entry on or interference with property or
with wireless telegraphy. The time and date when such an instruction was given
should be recorded on the authorization record (see paragraph 6.21).
Retrieval of equipment
6.23 Where the
Tribunal quashes, or cancels, an authorization or renewal, it will, if there
are reasonable grounds for doing so, order that the authorization remain
effective for a specified period, to enable officers to retrieve anything left
on the property by virtue of the authorization. It can only do so if the
authorization or renewal makes provision for this.
Special situations
6.24 In certain
cases, special care must be used in considering or granting an authorization
for entry on or interference with property (pursuant to Part 11 of PPCE). These
are cases where it is believed that:
· any
of the property specified in the authorization:
· is
used wholly or mainly as a dwelling or a bedroom in a hotel; or
· constitutes
office premises; or
· the
action authorized is likely to result in any person acquiring knowledge of:
· matters
subject to legal privilege;
· confidential
personal information; or
· confidential
journalistic material.
6.25 Office
premises are defined as any building or part of a building whose sole or
principal use is as an office or for office purposes (which means purposes of
administration, clerical work, handling money and telephone or telegraphic
operation).
Authorizations for entry on or interference
with property or with wireless telegraphy by the intelligence services
6.26 Before
granting a warrant, the Attorney General must:
· think
it necessary for the action to be taken for the purpose of assisting the relevant
agency in carrying out its functions;
· be
satisfied that the taking of the action is proportionate to what the action
seeks to achieve;
· take
into account in deciding whether an authorization is necessary and
proportionate is whether the information which it is thought necessary to
obtain by the conduct authorized by the warrant could reasonably be obtained by
other means.
6.27 An application
for a warrant must be made by a member of the intelligence services for the
taking of action in relation to that agency. In addition, the Security Service
may make an application for a warrant to act on behalf of the Secret
Intelligence Service (SIS) and the Governments Communication Headquarters
(GCHQ). SIS and GCHQ may not be granted a warrant for action in support of the
prevention or detection of serious crime which relates to property in Jersey.
6.28 A warrant
shall, unless renewed, cease to have effect at the end of the period of 3 months beginning with the day on which it was issued.
In any other case, at the end of the period ending with the second working day following that day.
6.29 If at any time
before the day on which a warrant would cease to have effect the Attorney
General considers it necessary for the warrant to continue to have effect for
the purpose for which it was issued, the Attorney General may by an instrument
under his or her hand renew it for a period of 3 months
beginning with that day. The Attorney General shall cancel a warrant if he or
she is satisfied that the action authorized by it is no longer necessary.
6.30 The
intelligence services should provide the same information as the police, as and
where appropriate, when making applications, requests for renewal and requests
for cancellation of property warrants.
Retrieval of equipment
6.31 Because of the
time it can take to remove equipment from a person’s property it may also
be necessary to renew a property warrant in order to complete the retrieval.
Applications to the Attorney General for renewal should state why it is being
or has been closed down, why it has not been possible to remove the equipment
and any timescales for removal, where known.
7 OVERSIGHT
BY COMMISSIONERS
7.1 PPCE
and RIPL require the Commissioner to keep under review (with the assistance of
the Assistant Commissioners) the performance of functions under Part 11 PPCE
and Part 3 of RIPL.
7.2 This
code does not cover the exercise of any of the Commissioners’ functions.
It is the duty of any person who uses these powers to comply with any request
made by a Commissioner to disclose or provide any information the Commissioner
requires for the purpose of enabling the Commissioner to carry out his or her
functions.
7.3 References
in this code to the performance of review functions by the Commissioner apply
also to any Inspectors and other members of staff to whom such functions have
been delegated.
8 COMPLAINTS
8.1 RIPL
establishes an independent Tribunal. This Tribunal will be made up of a judge
of the Court of Appeal and 2 Jurats and is independent of the States. The Tribunal
has powers to investigate and decide any case within its jurisdiction.
This code does not cover the exercise of the Tribunal’s
functions. Details of the relevant complaints procedure can be obtained from
the following address:
Judicial Greffier
Morier House
St Helier
Jersey
JE1 1DD
SCHEDULE
5
(Article 5)
Code of practice on covert human
intelligence sources
CONTENTS
CHAPTER 1 BACKGROUND
CHAPTER 2 GENERAL
RULES ON AUTHORIZATIONS
CHAPTER 3 SPECIAL
RULES ON AUTHORIZATIONS
CHAPTER 4 AUTHORIZATION
PROCEDURES FOR COVERT HUMAN INTELLIGENCE SOURCES
CHAPTER 5 OVERSIGHT
CHAPTER 6 COMPLAINTS
Commencement
This code applies to every authorization of the use or conduct by
public authorities of covert human intelligence sources carried out under Part
3 of the Regulation of Investigatory Powers (Jersey) Law 2005 which begins on
or after the day on which this code comes into effect.
1 BACKGROUND
- GENERAL - COMMENCEMENT
1.1 In this
code –
· “ECHR” means the European Convention on Human
Rights;
· “PPCE” means the Police Procedures and
Criminal Evidence (Jersey) Law 2003;
· “Law” means the Regulation of Investigatory
Powers (Jersey) Law 2005;
1.2 This Code of practice
provides guidance on the authorization of the use or conduct of covert human
intelligence sources (“a source”) by public authorities under Part
3 of the Law and it applies to every such authorization or the use or conduct
by 3 public authorities of covert human intelligence sources carried out under
the Law which begins on or after the day on which this Code comes into effect.
1.3 The provisions of the
Law are not intended to apply in circumstances where members of the public
volunteer information to the police or other authorities, as part of their
normal civic duties, or to contact numbers set up to receive information (such
as Crimestoppers, Customs Confidential, the Anti Terrorist Hotline, or the
Security Service Public Telephone Number). Members of the public acting in this
way would not generally be regarded as sources.
1.4 Neither Part 3 of the
Law or this code of practice is intended to affect the practices and procedures
surrounding criminal participation of sources.
1.5 The Law provides that
all codes of practice relating to the Law are admissible as evidence in
criminal and civil proceedings. If any provision of the code appears relevant
to any court or tribunal considering any such proceedings, or to the
Investigatory Powers Tribunal established under the Law, or to the Commissioner
responsible for overseeing the powers conferred by the Law, it must be taken
into account.
General extent of powers
1.6 Authorizations can be
given for the use or conduct of a source both inside and outside Jersey.
Authorizations for actions outside Jersey can only validate them for the
purposes of proceedings in Jersey. An authorization under Part 3 of the Law
does not take into account the requirements of the country outside Jersey in
which the investigation or operation is taking place.
1.7 Members of foreign law
enforcement or other agencies or sources of those agencies may be authorized
under the Law in Jersey in support of domestic and international
investigations.
Use of material in evidence
1.8 Material obtained from
a source may be used as evidence in criminal proceedings. The proper
authorization of a source should ensure the suitability of such evidence under
the customary law, Article 76 of PPCE and the Human Rights (Jersey) Law 2000.
Furthermore, the product obtained by a source described in this code is subject
to the ordinary rules for retention and disclosure of material, where those
rules apply to the law enforcement body in question. There are also
well-established legal procedures that will protect the identity of a source
from disclosure in such circumstances.
2 GENERAL
RULES ON AUTHORIZATIONS
2.1 An authorization under
Part 3 of the Law will provide lawful authority for the use of a source.
Responsibility for giving the authorization will depend on which public
authority is responsible for the source.
2.2 Part 3 of the Law does
not impose a requirement on public authorities to seek or obtain an
authorization where, under the Law, one is available (see Article 57 of the
Law). Nevertheless, where there is an interference by a public authority with
the right to respect for private and family life guaranteed under Article 8 of
the ECHR, and where there is no other lawful authority, the consequences of not
obtaining an authorization under the Law may be that the action is unlawful by
virtue of Article 7 of the Human Rights (Jersey) Law 2000.
2.3 Public authorities are
therefore strongly recommended to seek an authorization where the use or
conduct of a source is likely to interfere with a person's Article 8 rights to
privacy by obtaining information from or about a person, whether or not that
person is the subject of the investigation or operation. Obtaining an
authorization will ensure that the action is carried out in accordance with law
and subject to stringent safeguards against abuse.
Necessity and Proportionality
2.4 Obtaining an
authorization under the Law will only ensure that the authorized use or conduct
of a source is a justifiable interference with an individual's Article 8 rights
if it is necessary and proportionate for the source to be used. The Law first
requires that the person granting an authorization must believe that the
authorization is necessary in the circumstances of the particular case for one
or more of the statutory grounds in Article 35(3) of the Law.
2.5 Then, if the use of the
source is necessary, the person granting the authorization must believe that
the use of a source is proportionate to what is sought to be achieved by the
conduct and use of that source. This involves balancing the intrusiveness of
the use of the source on the target and others who might be affected by it
against the need for the source to be used in operational terms. The use of a
source will not be proportionate if it is excessive in the circumstances of the
case or if the information which is sought could reasonably be obtained by
other less intrusive means. The use of a source should be carefully managed to
meet the objective in question and sources must not be used in an arbitrary or
unfair way.
Collateral Intrusion
2.6 Before authorizing the
use or conduct of a source, the authorizing officer should also take into
account the risk of intrusion into the privacy of persons other than those who
are directly the subjects of the operation or investigation (collateral
intrusion). Measures should be taken, wherever practicable, to avoid
unnecessary intrusion into the lives of those not directly connected with the
operation.
2.7 An application for an
authorization should include an assessment of the risk of any collateral
intrusion. The authorizing officer should take this into account, when
considering the proportionality of the use and conduct of a source.
2.8 Those tasking a source
should inform the authorizing officer if the investigation or operation
unexpectedly interferes with the privacy of individuals who are not covered by
the authorization. When the original authorization may not be sufficient,
consideration should be given to whether the authorization needs to be amended
and reauthorized or a new authorization is required.
2.9 Any person granting or
applying for an authorization will also need to be aware of any particular
sensitivities in the local community where the source is being used and of
similar activities being undertaken by other public authorities which could
impact on the deployment of the source. Consideration should also be given to any
adverse impact on community confidence or safety that may result from the use
or conduct of a source or of information obtained from that source.
Additionally, the authorizing officer should make an assessment of any risk to
a source in carrying out the proposed authorization.
2.10 In a very limited range of
circumstances an authorization under Part 3 may, by virtue of Articles 32(6)
and 33 of the Law, render lawful conduct which would otherwise be criminal, if
it is incidental to any conduct falling within Article 32(7) of the Law which
the source is authorized to undertake. This would depend on the circumstances
of each individual case, and consideration should always be given to seeking
advice from the Law Officers’ Department when such activity is contemplated.
A source that acts beyond the limits recognised by the law will be at risk from
prosecution. The need to protect the source cannot alter this principle.
Combined authorizations
2.11 A single authorization may combine
2 or more different authorizations under Part 3 of the Law. For example, a
single authorization may combine authorizations for intrusive surveillance and
the conduct of a source. In such cases the provisions applicable to each of the
authorizations must be considered separately. Thus, the Chief Officer of the
Force can authorize the conduct of a source but an authorization for intrusive
surveillance by the police needs the separate authority of the Attorney
General. Where an authorization for the use or conduct of a covert human intelligence
source is combined with the Attorney General’s authorization for
intrusive surveillance, the combined authorization must be issued by the
Attorney General. However, this does not preclude public authorities from
obtaining separate authorizations.
Directed surveillance against a potential
source
2.12 It may be necessary to deploy
directed surveillance against a potential source as part of the process of
assessing their suitability for recruitment, or in planning how best to make
the approach to them. An authorization under this code authorizing an officer
to establish a covert relationship with a potential source could be combined
with a directed surveillance authorization so that both the officer and
potential source could be followed. Directed surveillance is defined in Article
32(1) of the Law. See the code of practice on Covert Surveillance.
Central Record of all authorizations
2.13 A centrally retrievable record of
all authorizations should be held by each public authority and regularly
updated whenever an authorization is granted, renewed or cancelled. The record
should be made available to the Commissioner or an Inspector from the Office of
Commissioner, upon request. These records should be retained for a period of at
least 3 years from the ending of the authorization.
2.14 Proper records must be kept of the
authorization and use of a source. Article 35(5) of the Law provides that an
authorizing officer must not grant an authorization for the use or conduct of a
source unless he or she believes that there are arrangements in place for
ensuring that there is at all times a person with the responsibility for
maintaining a record of the use made of the source.
2.15 In addition, records or copies of
the following, as appropriate, should be kept by the relevant authority:
· a
copy of the authorization together with any supplementary documentation and
notification of the approval given by the authorizing officer;
· a
copy of any renewal of an authorization, together with the supporting
documentation submitted when the renewal was requested;
· the
reason why the person renewing an authorization considered it necessary to do
so;
· any
authorization which was granted or renewed orally (in an urgent case) and the
reason why the case was considered urgent;
· any
risk assessment made in relation to the source;
· the
circumstances in which tasks were given to the source;
· the
value of the source to the investigating authority;
· a
record of the results of any reviews of the authorization;
· the
reasons, if any, for not renewing an authorization;
· the
reasons for cancelling an authorization.
· the
date and time when any instruction was given by the authorizing officer to
cease using a source.
2.16 The records kept by public
authorities should be maintained in such a way as to preserve the
confidentiality of the source and the information provided by that source.
There should, at all times, be a designated person within the relevant public
authority who will have responsibility for maintaining a record of the use made
of the source.
Retention and destruction of the product
2.17 Where the product obtained from a
source could be relevant to pending or future criminal or civil proceedings, it
should be retained in accordance with established disclosure requirements for a
suitable further period, commensurate to any subsequent review.
2.18 In the cases of the law enforcement
agencies, particular attention is drawn to the requirements that material which
is obtained in the course of a criminal investigation and which may be relevant
to the investigation must be recorded and retained.
2.19 There is nothing in the Law which
prevents material obtained from properly authorized use of a source being used
in other investigations. Each public authority must ensure that arrangements
are in place for the handling, storage and destruction of material obtained
through the use of a source. Authorizing officers must ensure compliance with
the appropriate data protection requirements and any relevant codes of practice
produced by individual authorities in the handling and storage of material.
3 SPECIAL
RULES ON AUTHORIZATIONS
Confidential Information
3.1 The Law does not
provide any special protection for ‘confidential information’.
Nevertheless, particular care should be taken in cases where the subject of the
investigation or operation might reasonably expect a high degree of privacy, or
where confidential information is involved. Confidential information consists
of matters subject to legal privilege, confidential personal information or
confidential journalistic material.
3.2 In
cases where, through the use of or conduct of a source, it is likely that
knowledge of confidential information will be acquired, it is recommended that
the grant of authority to deploy the source is considered at a senior level
and, in case of difficulty, advice sought from the Law Officers’
Department.
Communications Subject to Legal Privilege
3.3 Article 5 of PPCE
describes those matters that are subject to legal privilege.
3.4 Legal privilege does
not apply to communications made with the intention of furthering a criminal
purpose (whether the lawyer is acting unwittingly or culpably). Legally
privileged communications will lose their protection if there are grounds to
believe, for example, that the professional legal adviser is intending to hold
or use them for a criminal purpose. But privilege is not lost if a professional
legal adviser is properly advising a person who is suspected of having
committed a criminal offence. The concept of legal privilege applies to the
provision of professional legal advice by any individual, agency or
organisation qualified to do so.
3.5 The Law does not
provide any special protection for legally privileged information.
Nevertheless, such information is particularly sensitive and any source which
acquires such material may engage Article 6 of the ECHR (right to a fair trial)
as well as Article 8. Legally privileged information obtained by a source is
extremely unlikely ever to be admissible as evidence in criminal proceedings. Moreover,
the mere fact that use has been made of a source to obtain such information may
lead to any related criminal proceedings being stayed as an abuse of process.
Accordingly, action which may lead to such information being obtained is
subject to additional safeguards under this code.
3.6 In general, an
application for the use or conduct of a source which is likely to result in the
acquisition of legally privileged information should only be made in
exceptional and compelling circumstance. Full regard should be had to the
particular proportionality issues such a use or conduct of a source raises. The
application should include, in addition to the reasons why it is considered
necessary for the use or conduct of a source to be used, an assessment of how likely
it is that information subject to legal privilege will be acquired. The
application should clearly state whether the purpose (or one of the purposes)
of the use or conduct of the source is to obtain legally privileged
information.
3.7 This assessment will be
taken into account by the authorizing officer in deciding whether the proposed
use or conduct of a source is necessary and proportionate for a purpose under
Article 35 of the Law. The authorizing officer may require regular reporting so
as to be able to decide whether the authorization should continue. In those
cases where legally privileged information has been acquired and retained, the
matter should be reported to the Commissioner or Inspector during his or her
next inspection and the material should be made available to him or her if
requested.
3.8 A substantial
proportion of the communications between a lawyer and his client(s) may be
subject to legal privilege. Therefore, any case where a lawyer is the subject
of an investigation or operation should be notified to the Commissioner or
Inspector during his or her next inspection and any material which has been
retained should be made available to him or her if requested.
3.9 Where there is any
doubt as to the handling and dissemination of information which may be subject
to legal privilege, advice should be sought from the Law Officers’
Department before any further dissemination of the material takes place.
Similar advice should also be sought where there is doubt over whether
information is not subject to legal privilege due to the “in furtherance
of a criminal purpose” exception. The retention of legally privileged
information, or its dissemination to an outside body, should be accompanied by
a clear warning that it is subject to legal privilege. It should be safeguarded
by taking reasonable steps to ensure there is no possibility of it becoming
available, or its contents becoming known to any person whose possession of it
might prejudice any criminal or civil proceedings related to the information.
Any dissemination of legally privileged material to an outside body should be
notified to the relevant Commissioner or Inspector during his next inspection.
Communications involving Confidential
Personal Information and Confidential Journalistic Material
3.10 Similar consideration must also be
given to authorizations that involve confidential personal information and
confidential journalistic material. In those cases where confidential personal
information and confidential journalistic material has been acquired and
retained, the matter should be reported to the Commissioner or Inspector during
his or her next inspection and the material be made available to him or her if
requested. Confidential personal information is information held in confidence
relating to the physical or mental health or spiritual counselling concerning
an individual (whether living or dead) who can be identified from it. Such
information, which can include both oral and written communications is held in
confidence if it is held subject to an express or implied undertaking to hold
it in confidence or it is subject to a restriction on disclosure or an
obligation of confidentiality contained in existing legislation. Examples might
include consultations between a health professional and a patient, or
information from a patient’s medical records.
3.11 Spiritual counselling means
conversations between an individual and a Minister of Religion acting in his or
her official capacity, where the individual being counselled is seeking or the
Minister is imparting forgiveness, absolution or the resolution of conscience
with the authority of the Divine Being(s) of their faith.
3.12 Confidential journalistic material
includes material acquired or created for the purposes of journalism and held
subject to an undertaking to hold it in confidence, as well as communications
resulting in information being acquired for the purposes of journalism and held
subject to such an undertaking.
Vulnerable individuals
3.13 A ‘vulnerable
individual’ is a person who is or may be in need of community care
services by reason of mental or other disability, age or illness and who is or
may be unable to take care of himself or herself, or unable to protect himself
or herself against significant harm or exploitation. Any individual of this
description should only be authorized to act as a source in the most
exceptional circumstances and only after advice has been sought from the Law
Officers’ Department.
Juvenile sources
3.14 Special safeguards
also apply to the use or conduct of juvenile sources; that is sources under the
age of 18 years. On no occasion should the use or
conduct of a source under 16 years of age be authorized to give information
against his or her parents or any person who has parental responsibility for the
source. In other cases, authorizations should not be granted unless
special provisions prescribed by the Minister are satisfied. It is recommended
that the grant of authority to use a source under 16 years of Attorney General
is considered at a senior level in the public authority. The duration of such
an authorization is one month instead of 12 months.
4 AUTHORIZATION
PROCEDURES FOR COVERT HUMAN INTELLIGENCE SOURCES
4.1 Under Article 32(7) of
the Law a person is a source if:
(a) he
or she establishes or maintains a personal or other relationship with a person
for the covert purpose of facilitating the doing of anything falling within
paragraph (b) or (c);
(b) he
or she covertly uses such a relationship to obtain information or to provide
access to any information to another person; or
(c) he
or she covertly discloses information obtained by the use of such a
relationship or as a consequence of the existence of such a relationship.
4.2 A source may include
those referred to as agents, informants and officers working undercover.
4.3 By virtue of Article
32(9)(b) of the Law 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.
4.4 By virtue of Article
32(9)(c) of the Law a relationship is used covertly, and information obtained
as mentioned in paragraph 4.1(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.
4.5 The use of a source
involves inducing, asking or assisting a person to engage in the conduct of a
source or to obtain information by means of the conduct of such a source.
4.6 The conduct of a source
is any conduct falling within Article 35(4) of the Law, or which is incidental
to anything falling within Article 35(4) of the Law.
Authorization procedures
4.7 Under Article 35(3) of
the Law an authorization for the use or conduct of a source may be granted by
the authorizing officer where he believes that the authorization is necessary:
· in
the interests of national security;
· for
the purpose of preventing and detecting crime or of preventing
disorder;
· in
the interests of the economic well-being of Jersey;
· in
the interests of public safety;
· for
the purpose of protecting public health
· for
the purpose of assessing or collecting any tax, duty, levy or other imposition,
contribution or charge payable to a government department; or
· for
any other purpose prescribed in an Order made by the Minister for Home Affairs.
4.8 The authorizing
officer must also believe that the authorized use or conduct of a source is
proportionate to what is sought to be achieved by that use or conduct.
4.9 The public authorities
entitled to authorize the use or conduct of a source are those listed in
Schedule 1 to the Law. Responsibility for authorizing the use or conduct of a
source rests with the authorizing officer and all authorizations require the
personal authority of the authorizing officer. An authorizing officer is the
person designated under Article 36 of the Law to grant an authorization for the
use or conduct of a source. In certain circumstances the Attorney General will
be the authorizing officer (see Article 36 of the Law).
4.10 The authorizing officer must give
authorizations in writing, except that in urgent cases, they may be given
orally by the authorizing officer. In such cases, a statement that the
authorizing officer has expressly authorized the action should be recorded in
writing by the applicant as soon as is reasonably practicable.
4.11 A case is not normally to be
regarded as urgent unless the time that would elapse before the authorizing
officer was available to grant the authorization would, in the judgement of the
person giving the authorization, be likely to endanger life or jeopardise the
operation or investigation for which the authorization was being given. An
authorization is not to be regarded as urgent where the need for an
authorization has been neglected or the urgency is of the authorizing
officer’s own making.
4.12 The Chief Officer, Agent of the
Impôts or Chief Inspector of Immigration may only grant authorizations on
application by a member of their own force or Service.
Information to be provided in applications
for authorization
4.13 An application for authorization
for the use or conduct of a source should be in writing and record:
· the
reasons why the authorization is necessary in the particular case and on the
grounds (e.g. for the purpose of preventing or detecting crime) listed in
Article 35(3) of the Law;
· the
reasons why the authorization is considered proportionate to what it seeks to
achieve;
· the
purpose for which the source will be tasked or deployed (e.g. in relation to an
organised serious crime, espionage, a series of racially motivated crimes etc);
· where
a specific investigation or operation is involved, nature of that investigation
or operation;
· the
nature of what the source will be tasked to do;
· the
level of authority required (or recommended, where that is different);
· the
details of any potential collateral intrusion and why the intrusion is
justified;
· the
details of any confidential information that is likely to be obtained as a
consequence of the authorization; and
· a
subsequent record of whether authority was given or refused, by whom and the
time and date.
4.14 Additionally, in urgent cases, the
authorization should record the reasons why the authorizing officer considered
the case so urgent that an oral instead of a written authorization was given.
4.15 Where the authorization is oral, the
detail referred to above should be recorded in writing by the applicant as soon
as reasonably practicable.
Duration of authorizations
4.16 A written authorization will,
unless renewed, cease to have effect at the end of a period of 12 months beginning with the day on which it took
effect.
4.17 Urgent oral authorizations will,
unless renewed, cease to have effect after 72 hours,
beginning with the time when the authorization was granted or renewed.
Reviews
4.18 Regular reviews of authorizations
should be undertaken to assess the need for the use of a source to continue.
The review should include the use made of the source during the period
authorized, the tasks given to the source and the information obtained from the
source. The results of a review should be recorded on the authorization record
(see paragraphs 2.13 ‑ 2.15). Particular attention is drawn to
the need to review authorizations frequently where the use of a source provides
access to confidential information or involves collateral intrusion.
4.19 In each case the authorizing
officer within each public authority should determine how often a review should
take place. This should be as frequently as is considered necessary and
practicable.
Renewals
4.20 Before an authorizing officer
renews an authorization, he or she must be satisfied that a review has been
carried out of the use of a source as outlined in paragraph 4.19.
4.21 If at any time before an
authorization would cease to have effect, the authorizing officer considers it
necessary for the authorization to continue for the purpose for which it was
given, the officer may renew it in writing for a further period of 12 months. Renewals may also be granted orally in
urgent cases and last for a period of 72 hours.
4.22 A renewal takes effect at the time
at which, or day on which the authorization would have ceased to have effect
but for the renewal. An application for renewal should not be made until
shortly before the authorization period is drawing to an end. Any person who
would be entitled to grant a new authorization can renew an authorization.
Authorizations may be renewed more than once, if necessary, provided they
continue to meet the criteria for authorization. The renewal should be
kept/recorded as part of the authorization record (see paragraphs 2.13 ‑ 2.15).
4.23 All applications for the renewal of
an authorization should record:
· whether
this is the first renewal or every occasion on which the authorization has been
renewed previously;
· any
significant changes to the information in paragraph 4.14;
· the
reasons why it is necessary to continue to use the source;
· the
use made of the source in the period since the grant or, as the case may be,
latest renewal of the authorization;
· the
tasks given to the source during that period and the information obtained from
the conduct or use of the source;
· the
results of regular reviews of the use of the source.
Cancellations
4.24 The authorizing officer who granted
or renewed the authorization must (or his or her deputy) cancel it if the
officer is satisfied that the use or conduct of the source no longer satisfies
the criteria for authorization or that satisfactory arrangements for the
source’s case no longer exist. Where the authorizing officer is no longer
available, this duty will fall on the person who has taken over the rôle
of authorizing officer or the person who is acting as authorizing officer in
accordance with an Order of the Minister for Home Affairs under Article 41(4)
of the Law. Where necessary, the safety and welfare of the source should
continue to be taken into account after the authorization has been cancelled.
Management of Sources
Tasking
4.25 Tasking is the assignment given to
the source by the persons defined at Articles 35(5)(a) and (b) of the Law,
asking the source to obtain information, to provide access to information or to
otherwise act, incidentally, for the benefit of the relevant public authority.
Authorization for the use or conduct of a source is required prior to any
tasking where such tasking requires the source to establish or maintain a
personal or other relationship for a covert purpose.
4.26 The person referred to in Article
35(5)(a) of the Law will have day to day responsibility for:
· dealing
with the source on behalf of the authority concerned;
· directing
the day to day activities of the source;
· recording
the information supplied by the source; and
· monitoring
the source’s security and welfare.
4.27 The person referred to in
Article 35(5)(b) of the Law will be responsible for the general oversight
of the use of the source.
4.28 In some instances, the tasking
given to a person will not require the source to establish a personal or other
relationship for a covert purpose. For example a source may be tasked with
finding out purely factual information about the layout of commercial premises.
Alternatively, a trading standards officer may be involved in the test purchase
of items which have been labelled misleadingly or are unfit for consumption. In
such cases, it is for the relevant public authority to determine where, and in
what circumstances, such activity may require authorization.
4.29 It is not the intention that
authorizations be drawn so narrowly that a separate authorization is required
each time the source is tasked. Rather, an authorization might cover, in broad
terms, the nature of the source’s task. If this changes, then a new
authorization may need to be sought.
4.30 It is difficult to predict exactly
what might occur each time a meeting with a source takes place, or the source
meets the subject of an investigation. There may be occasions when unforeseen
action or undertakings occur. When this happens, the occurrence must be
recorded as soon as practicable after the event and, if the existing
authorization is insufficient it should either be updated and reauthorized (for
minor amendments only) or it should cancelled and a new authorization should be
obtained before any further such action is carried out.
4.31 Similarly where it is intended to
task a source in a new way or significantly greater way than previously
identified, the persons defined at Article 35(5)(a) or (b) of the Law must
refer the proposed tasking to the authorizing officer, who should consider
whether a separate authorization is required. This should be done in advance of
any tasking and the details of such referrals must be recorded.
Management responsibility
4.32 Public authorities should ensure
that arrangements are in place for the proper oversight and management of
sources, including appointing individual officers as defined in Article
35(5)(a) and (b) of the Law for each source.
4.33 The person responsible for the
day-to-day contact between the public authority and the source will usually be
of a rank or position below that of the authorizing officer.
4.34 In cases where the authorization is
for the use or conduct of a source whose activities benefit more than a single
public authority, responsibilities for the management and oversight of that
source may be taken up by one authority or can be split between the
authorities.
Security and welfare
4.35 Any public authority deploying a
source should take into account the safety and welfare of that source, when
carrying out actions in relation to an authorization or tasking, and to
foreseeable consequences to others of that tasking. Before authorizing the use
or conduct of a source, the authorizing officer should ensure that a risk
assessment is carried out to determine the risk to the source of any tasking
and the likely consequences should the role of the source become known. The
ongoing security and welfare of the source, after the cancellation of the
authorization, should also be considered at the outset.
4.36 The person defined at Article
35(5)(a) of the Law is responsible for bringing to the attention of the person
defined at Article 35(5)(b) of the Law any concerns about the personal
circumstances of the source, insofar as they might affect:
· the
validity of the risk assessment
· the
conduct of the source, and
· the
safety and welfare of the source.
4.37 Where deemed appropriate, concerns
about such matters must be considered by the authorizing officer, and a
decision taken on whether or not to allow the authorization to continue.
Additional Rules
Recording of telephone conversations
4.38 Subject to
paragraph 4.40, the interception of communications sent by post or by means of
public telecommunications systems or private telecommunications systems
attached to the public network may be authorized only by the Attorney General,
in accordance with the terms of Part 2 of the Law. Nothing in this code should
be taken as granting dispensation from the requirements of that Part of the
Law.
4.39 Part 2 of the
Law provides certain exceptions to the rule that interception of telephone
conversations must be warranted under that Part. This includes, where one party
to the communication consents to the interception, it may be authorized in
accordance with Articles 30(4) and 31(4) of the Law provided that there is no
interception warrant authorizing the interception. In such cases, the
interception is treated as directed surveillance (see chapter 4 of the Covert
Surveillance code of practice).
Use of covert human intelligence source with
technical equipment
4.40 A source, whether or not wearing or
carrying a surveillance device and invited into residential premises or a
private vehicle, does not require additional authorization to record any
activity taking place inside those premises or vehicle which take place in his
presence. This also applies to the recording of telephone conversations other
than by interception which takes place in the source’s presence.
Authorization for the use or conduct of that source may be obtained in the
usual way.
4.41 However, if a surveillance device
is to be used, other than in the presence of the source, an intrusive surveillance
authorization and if applicable an authorization for interference with property
should be obtained.
5 OVERSIGHT
BY COMMISSIONERS
5.1 The
Law requires the Commissioner to keep under review (with the assistance of the
Assistant Surveillance Commissioners) the performance of functions under Part
11 of PPCE and Part 3 of the Law by the police and of the Law the other public
authorities listed in Schedule 1.
5.2 This
code does not cover the exercise of any of the Commissioner’s functions.
It is the duty of any person who uses these powers to comply with any request
made by the Commissioner to disclose or provide any information the
Commissioner requires for the purpose of enabling the Commissioner to carry out
his or her functions.
5.3 References
in this code to the performance of review functions by the Commissioner apply
also to Inspectors and other members of staff to whom such functions have been
delegated.
6 COMPLAINTS
6.1 The Law establishes an
independent Tribunal. This Tribunal will be made up of senior members of the
judiciary and the legal profession and is independent of States. The Tribunal
has full powers to investigate and decide any case within its jurisdiction.
6.2 This code does not
cover the exercise of the Tribunal’s functions. Details of the relevant
complaints procedure can be obtained from the following address:
The Secretary
Investigatory Powers Tribunal
States Greffe
Jersey
JE1 1DD