Chief Constables Council

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1 Chief Constables Council National Collaboration Agreement Re Property and Wireless Telegraphy Interference 20 April 2016/Agenda item: 9 Security classification: Official Sensitive Disclosable under FOIA 2000: No Author: ACC Martyn Bates Force/organisation: Derbyshire Date created: 25 January 2016 Coordination Committee: Crime Operations Portfolio: Organised Crime paragraphs: 1. INTRODUCTION/PURPOSE 1.1 This paper is submitted for consideration of developing a national collaboration agreement, under s22a of the Police Act 1996 (PA96) across police forces in England and Wales, in respect of authorisations for interference with property and wireless telegraphy. 2. BACKGROUND 2.1 Part III of the Police Act 1997 (PA97) came into force on 22 February 1999 and provides a legal basis and framework to undertake entry on or interference with property or wireless telegraphy, in operations concerning serious crime that would otherwise be unlawful. 2.2 The Act incorporates a number of safeguards. These include a requirement that authorisations are only granted by senior authorising officers (Chief Constable or equivalent). The Act also incorporates restrictions regarding the applicant and authorising officer being from the same LEA and places geographical restrictions on where some LEA authorising officers can authorise such interference. This latter point is set out in Section 93 (1) which states: An authorising officer may authorise: (a) the taking of such action, in respect of property in the relevant area, as he may specify (b) the taking of such action in the relevant area as he may specify, in respect of wireless telegraphy. 2.3 By virtue of section 93(1B) the relevant area restriction imposed in s93(1) does not apply to authorisations given by authorising officers who are officers of the National Crime Agency, Revenue and Customs or the Competition and Markets Authority. In effect authorising officers in these agencies authorise covert activity across England and Wales.

2 2 Official-Sensitive [National Collaboration Agreement regarding Property and Wireless Telegraphy Interference] 2.4 For police forces in England & Wales the relevant area is now defined by section 93(6) as the area for which the force is maintained or the area in England and Wales for which a formal collaboration agreement is in place (under s22a PA96). For Police Scotland the relevant area is Scotland. For the Police Service of Northern Ireland the relevant area is Northern Ireland. For British Transport Police the relevant area is the United Kingdom. Therefore, apart from authorisations given by those agencies mentioned in s93(1b), the Act places geographical restrictions on where actions can be authorised. 2.5 A number of practical and procedural problems have arisen as a result of the legislation as it currently stands: i. Authorisation procedures Difficulties arise where forces seek to authorise interference outside their relevant area, with the only options being to seek authorisation from another force or from one of the agencies with a national remit. Given that LEA authorising officers can only grant an authorisation on application from a member of their own force of agency this creates the practice of a member of the authorising officer s own force becoming the applicant for an operation they may have had little prior knowledge of. This places a bureaucratic burden on the authorising agency. For some geographically disparate operations this may also result in numerous forces authorising activity on behalf of the investigating force. A survey of all forces/agencies (36 responses) found that in 2011 the number of authorisations given by one organisation on behalf of another was S31(1)(a)(b) S24(1) and in 2012 this figure was S31(1)(a)(b) S24(1). These figures for the survey would appear to indicate that there has been no significant reduction since the introduction of ROCUs. Figures also show that some forces bear a disproportionate burden. The Metropolitan Police Service, for example, processed approximately S31(1)(a)(b) S24(1) for each of the two years for which figures were provided. ii. Operational Impact S31(1)(a)(b) S24 National Security

3 3 Official-Sensitive [National Collaboration Agreement regarding Property and Wireless Telegraphy Interference] iii. Continuing Interference S31(1)(a)(b) S24 National Security 2.6 Forces and specialists from across the country were asked to consider safeguards that could be considered to accompany any national collaboration agreement and provide reassurance about activities conducted within their geographic boundaries, by other forces. The consensus was that deconfliction issues could and should be managed through the confidential unit structure. This would also prompt internal steps to allow any community impact and risk assessment to be properly considered ahead of deployment. 2.7 S42(1) Legal Professional Privilege 2.8 S42(1) Legal Professional Privilege 2.9 In conclusion practitioners and specialists from all forces expressed overwhelming support for a national collaboration agreement. 3. PROPOSAL 3.1 PA96 collaboration agreements were, when originally introduced, limited to 6 forces unless the Secretary of State agreed to a larger collaboration. The then ACPO portfolio lead had often pointed out the limitations of the legislation and the difficulties of some covert deployments. This restriction was eventually withdrawn in January 2012 by virtue of provisions within the Police Reform and Responsibility Act. However most collaboration agreements remain relatively small and are generally limited to a small number of forces which share geographical boundaries or, more commonly, with a regional specialist unit e.g. East Midlands Special Operations Unit (EMSOU) which is a collaboration between Derbyshire, Leicestershire, Lincolnshire, Northamptonshire and Nottinghamshire. 3.2 The Home Office has previously offered a view that the law currently now allows far wider collaboration agreements which are capable of resolving the relevant area requirements and that legislative change may therefore be unnecessary. This being the case, there is then no reason why a single national collaboration agreement could not be sought and indeed a national collaboration agreement already exists in respect of the National Police Air Service. The current Chief Surveillance

4 4 Official-Sensitive [National Collaboration Agreement regarding Property and Wireless Telegraphy Interference] Commissioner, Lord Judge, has expressed a similar view and is also supportive of this national collaboration agreement. 3.3 Concerns would undoubtedly exist regarding local community issues or other operational sensitivities, however paragraph 7.14 of the Covert Surveillance and Property Interference Code of Practice already addresses these concerns. It states: Any person granting or applying for an authorisation 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. In this regard, it is recommended that the authorising officers in the services police, S23(1), HMRC and CMA should consult a senior officer within the police force in which the investigation or operation takes place where the authorising officer considers that conflicts might arise. The Chief Constable of the Police Service of Northern Ireland should be informed of any surveillance operation undertaken by another law enforcement agency which involves its officers maintaining (including replacing) or retrieving equipment in Northern Ireland. 3.4 Of course such consultation may not be practicable in advance of, for example, a nationwide CCDC authorisation where the subject s intended movements is unknown. However, contact as soon as practicable with the relevant force Covert Authorities Bureaux or AO could be stipulated. That said, given that directed surveillance operations already take place throughout the country this may not been seen as a particularly new issue. 3.5 Interference in relation to dwellings and other buildings may be of greater concern to the local force and require closer local involvement and liaison. A potential option to address this is to limit any national agreement only to interference with (2) wireless telegraphy, moveable property and entry onto private land only in support of said interference with wireless telegraphy and moveable property. Moveable property could be defined as property other than buildings. 3.6 It is therefore proposed that two options for a national collaboration agreement be considered: 1. A national collaboration agreement (under s22a PA96) in respect of any property and wireless telegraphy interference Or; This agreement would permit a Senior Authorising Officer, under the Police Act 1997, the power to grant an authorisation, to: a. interfere with any property and/or wireless telegraphy on an application made by a member of the officer's own police force (the Authorising Force) or by a member of another police force whose Chief Constable is a Party to this Agreement (a Collaborative Force); and b. to permit a Senior Authorising Officer from an Authorising Force the power to authorise interference with property and/or wireless telegraphy in the officer's own force area or that of a Collaborative Force. 2. A national collaboration agreement (under s22a PA96) for entry onto private land, and moveable property and wireless telegraphy interference This option would permit a Senior Authorising Officer, under the Police Act 1997, the power to grant an authorisation to: a. interfere with moveable property and/or wireless telegraphy and/or entry onto private land on an application made by a member of the officer's own police force ( the Authorising Force ) or by a member of another police force whose Chief Constable is a Party to this Agreement ( a Collaborative Force ); and

5 5 Official-Sensitive [National Collaboration Agreement regarding Property and Wireless Telegraphy Interference] b. to permit a Senior Authorising Officer from an Authorising Force to authorise interference with moveable property and/or wireless telegraphy and/or entry onto private land in the officer's own force area or that of a Collaborative Force. 3.7 Option 2 would restrict the scope of a national collaboration agreement to movable property, which properly defined would include vehicles, but exclude buildings and would allow entry onto private land in support of the any deployments into moveable property or with interference with wireless telegraphy. 3.8 It should be noted that neither agreement would permit changes to the authorisation regime for intrusive surveillance in residential premises for which relevant area considerations remain in line with the Regulation of Investigatory Powers Act 2000 (as amended). 4. CONCLUSION 4.1 Chief Constables Council is asked to support the proposal to develop a National s22a PA96 Collaboration Agreement for property and wireless telegraphy interference under Part III of the Police Act Once further work is completed a draft agreement with the necessary safeguards will be circulated to all forces for consideration. 5. DECISIONS REQUIRED 5.1 For Chief Constables Council to support the Crime Operations Coordination Committee s (COCC) work to develop a national collaboration agreement, under s22a PA96, in respect of authorisations for interference with property and wireless telegraphy across police forces in England & Wales. 5.2 To define the scope of the national agreement by deciding between the two options proposed at 3.6 above. For information, and following consideration, the COCC took the view that the wider scope was preferable and therefore support Option 1. Mick Creedon Chief Constable, Derbyshire Constabulary NPCC Lead for Organised Crime