CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 27 octobre 2015

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THE UNITED KINGDOM   (Application no. 62498/11)               JUDGMENT       STRASBOURG   27 October 2015       FINAL   27/01/2016   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.   In the case of R.E. v. the United Kingdom, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:   Guido Raimondi, President,   Päivi Hirvelä,   George Nicolaou,   Nona Tsotsoria,   Paul Mahoney,   Krzysztof Wojtyczek,   Faris Vehabović, judges, and Fatoş Aracı, Deputy Section Registrar, Having deliberated in private on 6 October 2015, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 62498/11) against the United Kingdom of Great Britain and Northern Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Irish national, Mr   R.E. (“the applicant”), on 7 October 2011. The President of the Section acceded to the applicant’s request not to have his name disclosed (Rule 47 §   4 of the Rules of Court). 2.     The applicant was represented by Ms Nichola Harte of Harte Coyle Collins, a lawyer practising in Belfast. The United Kingdom Government (“the Government”) were represented by their Agent, Ms M. Addis of the Foreign & Commonwealth Office. 3.     On 11 April 2013 the application was communicated to the Government. 4.     By letter dated 2 July 2013 the Irish Government confirmed that they did not wish to exercise their right to intervene. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The applicant was born in 1989 and lives in Newtownabbey, Northern Ireland. A.     Background 6.     In 2006 a solicitor in Northern Ireland was arrested and charged with a number of offences, including inciting paramilitaries to murder and perverting the course of justice. The case arose out of the covert recording of his consultations with clients at Antrim police station. As a direct consequence of the criminal proceedings, solicitors in Northern Ireland became aware that their private consultations with detainees in police stations and prisons could be the subject of covert surveillance. Thereafter, solicitors attending detainees in police stations and prisons began to seek assurances from the police that their consultations would not be the subject of such surveillance. 7.     When the police refused to give assurances, judicial review proceedings were initiated on the basis that there had been a breach of the common law right to legal and professional privilege, the statutory right to a private consultation with a lawyer, and Articles 6 and 8 of the Convention. 8.     In the case of Re C & Others [2007] NIQB 101A the Divisional Court of the High Court of Justice in Northern Ireland found that, despite the express statutory right to private consultations, the covert surveillance of lawyer-client consultations was permitted by the Regulation of Investigatory Powers Act 2000 (“RIPA”). However, RIPA provided for two principal surveillance schemes: intrusive surveillance and directed surveillance. At the time of the hearing, covert surveillance of legal consultations was being treated as directed surveillance, which was the least restrictive of the two schemes. The Divisional Court held that the fundamental right of a detained person to consult a legal adviser privately necessitated an enhanced authorisation scheme and that protections afforded by the directed as opposed to the intrusive surveillance scheme offered insufficient protection. If the surveillance of consultations between legal advisers and clients in police custody was to be lawful for the purposes of Article 8 of the Convention, the safeguards for the carrying out of intrusive surveillance had to apply. 9.     The applicants in these judicial review proceedings appealed against the court’s ruling that the surveillance was permitted by the domestic legislation. The appeal went to the House of Lords, where it was referred to as Re McE (Northern Ireland) [2009] UKHL 15. The House of Lords agreed with the Divisional Court that although the provisions of RIPA could override, inter alia , legal professional privilege, the higher level of authority necessary for an intrusive surveillance warrant was required rather than the directed surveillance warrants that had, until then, been issued. 10.     As the Police Service of Northern Ireland (“PSNI”) had not appealed against the Divisional Court’s ruling that the use of the directed surveillance scheme had breached Article 8 of the Convention, the House of Lords criticised the Secretary of State for not having taken any steps to ensure that covert surveillance of legal consultations was not treated as directed surveillance. 11.     Following the decision of the House of Lords in Re McE the Regulation of Investigatory Powers (Extension of Authorisation Provisions: Legal Consultations) Order 2010 (“the 2010 Order”) was adopted and on 6   April 2010 a revised Covert Surveillance Code of Practice (“the Revised Code”) came into effect. Pursuant to the 2010 Order, directed surveillance of consultations between a detainee and his or her professional legal adviser, representative or medical practitioner in connection with legal proceedings was to be treated, for the purposes of RIPA, as intrusive surveillance. B.     The facts of the present case 12.     On 15 March 2009 the applicant was arrested in connection with the murder of a Police Constable believed to have been killed by dissident Republicans. 13.     When first arrested the applicant was assessed by the Forensic Medical Officer as a “vulnerable person” within the meaning of the Terrorism Act Code of Practice. Pursuant to paragraph 11.9 of that Code of Practice, he could not be interviewed, save in exceptional circumstances, in the absence of an “appropriate adult”. In the case of a person who was mentally vulnerable, an appropriate adult could be a relative or guardian, or a person experienced in dealing with mentally disordered or mentally vulnerable people. However, prior to being seen by either a solicitor or an appropriate adult, the applicant asked to speak to the officers in charge of the investigation “off the record”. He was interviewed by police officers in the absence of a solicitor or an appropriate adult and during the course of that interview he gave information which led to the recovery of the gun used in the Constable’s murder. 14.     The applicant was detained in custody for twelve days. During this time he was twice seen by a Consultant Psychiatrist and on each occasion he was assessed as being vulnerable and requiring the presence of an appropriate adult. Also during this time his solicitor obtained an assurance from the PSNI that his consultations with the applicant would not be subject to covert surveillance. 15.     On 25 March 2009 the applicant was charged with withholding information about the Constable’s murder. 16.     Following the charge the applicant was detained in custody on the ground that if released he would be at risk of harm from dissident Republicans. 17.     The applicant was released on bail on 8 June 2009. He was arrested and questioned on a further occasion in October 2009 but was subsequently released without charge. 18.     On 4 May 2010 the applicant was arrested for a third time in connection with the Constable’s murder. Following his arrest his solicitor again sought an assurance from the PSNI that his consultations would not be subjected to covert surveillance. The PSNI informed him that “[they could] neither confirm nor deny whether any form of covert surveillance has been conducted in any instance. Covert surveillance is regulated by the Regulation of Investigatory Powers Act 2000, related statutory instruments and the Revised [Covert Surveillance] Code of Practice”. 19.   The applicant sought permission to apply for judicial review of the PSNI’s refusal to give an undertaking that his consultations with his solicitor would not be subjected to covert surveillance. In particular, he alleged that the grounds upon which the authorisation of such surveillance would be appropriate were not sufficiently clearly defined and that the guidance concerning the securing and destruction of legally privileged confidential information was not sufficiently clear or precise. 20 .     On 6 May 2010 he was granted permission to apply for judicial review. In granting permission, the court directed that any subsequent consultations with his solicitor and his medical adviser should not be subject to covert surveillance. 21.     On 7 May 2010 the applicant had his first consultation with a Consultant Psychiatrist. 22.     The applicant was released without charge on 8 May 2010. 23.     The charge of withholding evidence appears to have concluded without trial. C.     The domestic proceedings 24.     The hearing of the judicial review application took place before a Divisional Court of the High Court of Justice in Northern Ireland on 28 June 2010. On 21 September 2010 the Divisional Court dismissed the applicant’s claim. 25.     In dismissing the claim, the court relied on Kennedy v. the United Kingdom , no. 26839/05, 18 May 2010, which found that the regime under Part I of RIPA was compatible with Articles 6 and 8 of the Convention. Although it noted that Kennedy was concerned only with Part I of RIPA, the court considered that the reasoning expressed was “very relevant in view of the parallels between Part I and Part II of the surveillance legal regimes”. 26.     The court found, in particular, that reading RIPA, the 2010 Order and the Revised Code together it was clear that a surveillance operation could only properly be justified if it was a truly proportionate response to a real risk posed by the individual who was the subject of the surveillance, and if the potential usefulness of the surveillance was demonstrably shown. As the Court had indicated in Kennedy , the requirement of foreseeability did not require an exhaustive definition of all conduct that might justify a decision on, for example, national security grounds, and similar reasoning applied in the present case. Consequently, the court held that the wording in the Revised Code was sufficiently clear. 27 .     With regard to the applicant’s second allegation, the court accepted that the statutory provisions under Part I of RIPA, which had been considered by the Court in Kennedy , were more detailed, prescriptive and precise than those in Part II. However, taking together the 2010 Order, the Revised Code and the PSNI Service Procedure Implementing Code, the arrangements in place for the use, retention and destruction of retained material in the context of legal consultations was compliant with the Article 8 rights of persons in custody. Moreover, as the Revised Code made it clear that material subject to legal professional privilege was not admissible in court and should be safeguarded by the taking of steps to ensure that it did not prejudice any criminal or civil proceedings, a breach of Article 6 of the Convention would not occur. While there was a risk of a potential “chill factor” (insofar as clients might be less than frank with their solicitors if they were concerned that they were under covert surveillance), the court considered that the revised Code was sufficiently detailed and precise to reassure those in custody that, save in exceptional circumstances, their consultations with lawyers would be in private. 28.     Finally, the court observed that the special considerations which applied to consultations with lawyers or doctors did not apply in the case of meetings with an appropriate adult. It therefore followed that surveillance of such meetings could be authorised as directed surveillance rather than intrusive surveillance. 29.     On 9 November 2010 the Divisional Court heard an application for leave to appeal to the Supreme Court. Leave to appeal was refused although the court certified four questions of law of general public importance. These were as follows: “a. Do the current arrangements for authorisation of covert surveillance of consultations between a detained person and (i) his/her solicitor (ii) his/her medical practitioner and/or (iii) an appropriate adult violate Article 6 ECHR in as much as they permit the covert surveillance of legally privileged consultations and the retention of material deriving from legally privileged consultations? b. Do the current arrangements for authorisation of covert surveillance of consultations between a detained person and (i) his/her solicitor (ii) his/her medical practitioner and/or (iii) an appropriate adult violate Article 8 ECHR as a result of:- (i) a lack of precision and clarity in the guidance governing the authorisation of such surveillance; and/or (ii) inadequate guidance as to how and when legally privileged material obtained from such surveillance should be handled, stored, used and destroyed. c. Is the Police Service of Northern Ireland’s Service Procedure “in accordance with the law” within the meaning of Article 8 ECHR? d. Do the current arrangements for authorisation of covert surveillance of consultations between a detained person and an appropriate adult violate Article 8 ECHR because such surveillance can be authorised as directed rather than intrusive surveillance?” 30.     An application for permission to appeal to the Supreme Court was refused by the Supreme Court on 11 April 2011. II.   RELEVANT DOMESTIC LAW AND PRACTICE A.     The interception, acquisition and disclosure of communication data 31.     The provisions of domestic law which govern the interception, acquisition and disclosure of communication data (including Part I of the Regulation of Investigatory Powers Act 2000 (“RIPA”) together with the relevant sections of the Code) are set out in Kennedy v. the United Kingdom , no. 26839/05, §§ 25 – 61, 18 May 2010. B.     Surveillance 1.     Re McE (Northern Ireland) [2009] UKHL 15 and Re C and Others [2007] NIQB 101 32.     Like the applicant in the present case, the claimants in Re McE had sought to judicially review the PSNI’s refusal to grant assurances that their consultations with their legal representatives while in detention would not be the subject of covert surveillance. They asserted that the failure to provide assurances was incompatible with Articles 6 and 8 of the Convention; and that it breached both their common law right to legal professional privilege (“LPP”) and their statutory right to consult a legal advisor in private. 33.     In the Divisional Court, where the case was referred to as Re C and Others [2007] NIQB 101, Kerr LCJ, giving the leading judgment, held that RIPA imposed limits on both the common law right of legal professional privilege and the statutory right to consult a lawyer privately while in detention. In relation to the claimants’ Convention rights, he did not find any evidence that the possibility of surveillance in any way affected the fairness of their trials contrary to Article 6 §§ 1 or 3 (b). He did, however, consider that insufficient reasons had been given to justify why this form of surveillance was not subject to the enhanced safeguarding regime used in respect of intrusive surveillance. He therefore found that there had been a violation of Article 8 of the Convention. 34.     Somewhat unusually, the claimants were granted leave to appeal to the House of Lords, where the case was referred to as Re McE (Northern Ireland) [2009] UKHL 15. Before the House of Lords, the sole issue was whether RIPA permitted covert surveillance of consultations with legal and medical advisors notwithstanding that such communication enjoyed LPP and there was a statutory right to consult these advisors in private. Lord Carswell, with whom Lords Hope and Neuberger and Lady Hale agreed, observed that RIPA and the relevant Code of Practice had clearly envisaged the surveillance of legal consultations. Relying on the Court’s case-law, he accepted that “covert surveillance of legal consultations should not be regarded as prohibited and unlawful in all possible circumstances” and found that in the present case there was a need to incorporate exceptions to the inviolability of privileged consultations. 35.     Their Lordships unanimously agreed with the Divisional Court judgment that the authorisation regime relating to directed surveillance could not be considered to be adequate when put against the intrusiveness of covert surveillance of legal or medical consultations. 36.     In respect of the Code of Practice, Lord Phillips of Worth Matravers noted that “The draughtsman of the Code appears to have preceded on the premise that: (i) it is undesirable that communications subject to LPP which are disclosed in consequence of authorised surveillance should be used in criminal or civil proceedings; (ii) such communications would not be admissible in criminal proceedings; (iii) knowledge of such communications could prejudice criminal or civil proceedings. None of these premises is axiomatic. I would expect the Strasbourg Court to require English law to state clearly what use, if any, is permitted to be made of material covered by LLP that is disclosed by surveillance. The majority have held that RIPA permits the Code to authorise surveillance of communications between solicitors and their clients both in custody and outside it in those exceptional circumstances where this will be compatible with the Convention. The Code does not at present do so in a manner which is compliant with the Convention. I would make this observation. Covert surveillance is of no value if those subject to it suspect that it may be taking place. If it is to take place in respect of consultations between solicitors and their clients in prison or the police station, it will be of no value unless this is such a rare occurrence that its possibility will not inhibit the frankness with which those in custody speak with their lawyers. It would seem desirable, if not essential, that the provisions of the Code should be such as to reassure those in custody that, save in exceptional circumstances, their consultations with their lawyers will take place in private. The chilling factor that LLP is intended to prevent will not then occur.” 37.     Likewise, Lord Neuberger of Abbotsbury indicated that: “Lord Phillips has characterised the nature of the decision of the majority of your Lordships as being that RIPA permits the Code to authorise surveillance of communications between lawyers and their clients, whether or not in custody. That is indeed as far as our decision in this case goes, and we should not, I think, be taken as thereby endorsing the provisions of the Code, as we are not directly concerned with those provisions, and, in particular, whether they comply with the requirements of the Convention. Indeed, in my view, it must be highly questionable whether the Code sufficiently clearly identifies (or limits) either the circumstances in which surveillance may or may not occur, or how the information thereby obtained may or may not be used. At least as at present advised I share the doubts and concerns about the Code expressed by Lord Phillips [...].” 2.     Amendments to the RIPA regime following Re McE (Northern Ireland) [2009] UKHL 15 38.     As a consequence of the decision of the House of Lords in Re McE the Secretary of State produced the Regulation of Investigatory Powers (Extension of Authorisation Provisions: Legal Consultations) Order 2010 (“the 2010 Order”). So far as relevant the 2010 Order provides, under Article 3, that directed surveillance carried out in relation to anything taking place in, inter alia , a police station used for the purpose of legal consultations should be treated, for the purposes of Part II of RIPA, as intrusive surveillance. 39.     A Revised Code of Practice “the Revised Code”) was also drawn up and duly approved by both Houses of Parliament. Chapter 4 of the Revised Code specifically addressed legally privileged and confidential information (see paragraph 75 below). 3.     The regime in place at the date of the applicant’s detention a.     Directed and intrusive surveillance 40.     Section 26 of RIPA defines directed and intrusive surveillance as follows: “(2) Subject to subsection (6), surveillance is directed for the purposes of this Part if it is covert but not intrusive and is undertaken — (a) for the purposes of a specific investigation or a specific operation; (b) in such a manner as is likely to result in the obtaining of private information about a person (whether or not one specifically identified for the purposes of the investigation or operation); and (c) otherwise than by way of an immediate response to events or circumstances the nature of which is such that it would not be reasonably practicable for an authorisation under this Part to be sought for the carrying out of the surveillance. (3) Subject to subsections (4) to (6), surveillance is intrusive for the purposes of this Part if, and only if, it is covert surveillance that — (a) is carried out in relation to anything taking place on any residential premises or in any private vehicle; and (b) involves the presence of an individual on the premises or in the vehicle or is carried out by means of a surveillance device. (4) For the purposes of this Part surveillance is not intrusive to the extent that— (a) it is carried out by means only of a surveillance device designed or adapted principally for the purpose of providing information about the location of a vehicle; or (b) it is surveillance consisting in any such interception of a communication as falls within section 48(4). (5) For the purposes of this Part surveillance which— (a) is carried out by means of a surveillance device in relation to anything taking place on any residential premises or in any private vehicle, but (b) is carried out without that device being present on the premises or in the vehicle, is not intrusive unless the device is such that it consistently provides information of the same quality and detail as might be expected to be obtained from a device actually present on the premises or in the vehicle. (6) For the purposes of this Part surveillance which— (a) is carried out by means of apparatus designed or adapted for the purpose of detecting the installation or use in any residential or other premises of a television receiver (within the meaning of the Wirelss Telegraphy Act 1949) and (b) is carried out from outside those premises exclusively for that purpose, is neither directed nor intrusive. ... (9) For the purposes of this section— (a) surveillance is covert if, and only if, it is carried out in a manner that is calculated to ensure that persons who are subject to the surveillance are unaware that it is or may be taking place; (b) a purpose is covert, in relation to the establishment or maintenance of a personal or other relationship, if and only if the relationship is conducted in a manner that is calculated to ensure that one of the parties to the relationship is unaware of the purpose; and (c) a relationship is used covertly, and information obtained as mentioned in subsection (8)(c) 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. (10) In this section “private information”, in relation to a person, includes any information relating to his private or family life. (11) References in this section, in relation to a vehicle, to the presence of a surveillance device in the vehicle include references to its being located on or under the vehicle and also include references to its being attached to it.” b.     Authorisation α.     Directed surveillance 41 .     According to paragraph 5.8 of the Revised Code, a written application for a directed surveillance authorisation should describe any conduct to be authorised and the purpose of the investigation or operation. The application should include the reasons why the authorisation is necessary in the particular case and on the grounds listed in section 28(3) of RIPA; the nature of the surveillance; the identities, where known, of those to be the subject of the surveillance; a summary of the intelligence case and appropriate unique intelligence references where applicable; 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 reasons why the surveillance is considered proportionate to what it seeks to achieve; and the level of authority required (or recommended where that is different) for the surveillance. A subsequent record should be made of whether authorisation was given or refused, by whom, and the time and date this happened. 42.     Section 30 of RIPA permits directed surveillance to be authorised by individuals holding such office, rank or position with relevant public authorities as prescribed by the Regulation of Investigatory Powers (Directed Surveillance and Covert Human Intelligence Sources) Order 2010. In the case of the PSNI, only an officer of (or above) the rank of Superintendent may authorise directed surveillance. 43.     Pursuant to paragraph 5.5 of the Revised Code, except in urgent cases the authorising officer must give authorisation in writing. 44 .     Section 28 of RIPA sets out the requirements for granting the authorisation of directed surveillance: “(1) Subject to the following provisions of this Part, the persons designated for the purposes of this section shall each have power to grant authorisations for the carrying out of directed surveillance. (2) A person shall not grant an authorisation for the carrying out of directed surveillance unless he believes— (a) that the authorisation is necessary on grounds falling within subsection (3); and (b) that the authorised surveillance is proportionate to what is sought to be achieved by carrying it out. (3) An authorisation is necessary on grounds falling within this subsection if it is necessary — (a) in the interests of national security; (b) for the purpose of preventing or detecting crime or of preventing disorder; (c) in the interests of the economic well-being of the United Kingdom; (d) in the interests of public safety; (e) for the purpose of protecting public health; (f) for the purpose of assessing or collecting any tax, duty, levy or other imposition, contribution or charge payable to a government department; or (g) for any purpose (not falling within paragraphs (a) to (f)) which is specified for the purposes of this subsection by an order made by the Secretary of State. (4) The conduct that is authorised by an authorisation for the carrying out of directed surveillance is any conduct that — (a) consists in the carrying out of directed surveillance of any such description as is specified in the authorisation; and (b) is carried out in the circumstances described in the authorisation and for the purposes of the investigation or operation specified or described in the authorisation. (5) The Secretary of State shall not make an order under subsection (3)(g) unless a draft of the order has been laid before Parliament and approved by a resolution of each House.” 45.     In urgent cases paragraph 5.9 permits the necessary information to be supplied orally. Where this happens the authorising officer and the applicant should also record the following information as soon as it is reasonably practicable to do so: the identities of those subject to surveillance; the nature of the surveillance; the reasons why the authorising officer considered the case so urgent that an oral instead of a written authorisation was given; and where the officer entitled to act in urgent cases has given written authority, the reasons why it was not reasonably practicable for the application to be considered by the authorising officer. 46.     In such cases authorisation may be given orally by the authorising officer or in writing by an officer entitled to act in urgent cases. A record that the authorising officer has expressly authorised the action should be recorded in writing by both the authorising officer and applicant as soon as reasonably practicable. 47.     Paragraph 5.6 of the Revised Code states that a case is not normally to be regarded as urgent unless the time that would elapse before the authorising officer was available to grant the authorisation would, in the judgment of the person giving the authorisation, be likely to endanger life or jeopardise the investigation or operation for which the authorisation had been given. An application was not to be regarded as urgent where the need for an authorisation had been neglected or the urgency was of the authorising officer or the applicant’s own making. β.     Intrusive surveillance 48 .     According to paragraph 6.19 of the Revised Code, applications for intrusive surveillance operations need to set out a wide range of information about the authorisation in question, including the reasons why the authorisation is necessary in the particular case and on the grounds listed in section 32(3) of the 2000 Act; the nature of the surveillance; the residential premises or private vehicle in relation to which the surveillance will take place, where known; 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; and the reasons why the surveillance is considered proportionate to what it seeks to achieve. A record should be made of whether the authorisation was given or refused, by whom and the time and date at which this happened. 49 .     Section 32 of RIPA sets out the requirements for granting the authorisation of intrusive surveillance: “(1) Subject to the following provisions of this Part, the Secretary of State and each of the senior authorising officers shall have power to grant authorisations for the carrying out of intrusive surveillance. (2) Neither the Secretary of State nor any senior authorising officer shall grant an authorisation for the carrying out of intrusive surveillance unless he believes— (a) that the authorisation is necessary on grounds falling within subsection (3); and (b) that the authorised surveillance is proportionate to what is sought to be achieved by carrying it out. (3) Subject to the following provisions of this section, an authorisation is necessary on grounds falling within this subsection if it is necessary— (a) in the interests of national security; (b) for the purpose of preventing or detecting serious crime; or (c) in the interests of the economic well-being of the United Kingdom. (4) The matters to be taken into account in considering whether the requirements of subsection (2) are satisfied in the case of any authorisation shall include whether the information which it is thought necessary to obtain by the authorised conduct could reasonably be obtained by other means. (5) The conduct that is authorised by an authorisation for the carrying out of intrusive surveillance is any conduct that— (a) consists in the carrying out of intrusive surveillance of any such description as is specified in the authorisation; (b) is carried out in relation to the residential premises specified or described in the authorisation or in relation to the private vehicle so specified or described; and (c) is carried out for the purposes of, or in connection with, the investigation or operation so specified or described. (6) For the purposes of this section the senior authorising officers are— ... ... ... (e) the Chief Constable of the Royal Ulster Constabulary and the Deputy Chief Constable of the Royal Ulster Constabulary; ...” 50.     Section 32(6) of RIPA provides a list of senior authorising officers. In the case of the PSNI, the senior authorising officer is the Chief Constable. 51.     Paragraph 6.6 of the Revised Code provides that the senior authorising officer or designated deputy should generally give authorisations in writing. 52.     According to section 35(1), once authorisation is granted notice of the grant must be given to a Surveillance Commissioner. The Surveillance Commissioner must then scrutinise the authorisation and decide whether or not to approve it (section 35(4)). Unless the case is one of urgency, the authorisation of intrusive surveillance by a senior authorising officer will not take effect until a Surveillance Commissioner has given written notice of his approval (section 36(2) and (3)). 53.     In urgent cases paragraph 6.20 of the Revised Code allows information required at the time of application to be supplied orally. Where this occurs the applicant should record the following information as soon as reasonably practicable: the identities of those subject to the surveillance; the nature and location of the surveillance; the reasons why the authorising officer or the officer entitled to act in urgent cases considered the case so urgent that an oral instead of written authorisation was given; and/or the reasons why it was not reasonably practicable for the application to be considered by the authorising officer. 54.     Pursuant to paragraph 6.6, oral authorisations may be given by the senior authorising officer or designated deputy and a statement that he or she has expressly authorised the conduct should be recorded in writing by the applicant as soon as reasonably practicable. Where it is not reasonably practicable having regard to the urgency of the case for either the senior authorising officer or the designated deputy to consider the application, paragraph 6.7 provides that an authorisation may be granted in writing by a person entitled to act only in urgent cases by section 34(4) of RIPA. 55.     Pursuant to paragraph 6.8, a case is not normally to be regarded as urgent unless the time that would elapse before the authorising officer was available to grant the authorisation would, in the judgment of the person giving the authorisation, be likely to endanger life or jeopardise the investigation or operation for which the authorisation had been given. An application was not to be regarded as urgent where the need for an authorisation had been neglected or the urgency was of the authorising officer or the applicant’s own making. 56 .     When the authorisation is urgent it will take effect from the time it is granted provided notice is given to a Surveillance Commissioner. γ.     Rules and guidance applicable to both 57 .   Section 81(2)(b) RIPA defines “serious crime” as crime which satisfies one of the following criteria: “(a) that the offence or one of the offences that is or would be constituted by the conduct is an offence for which a person who has attained the age of twenty-one and has no previous convictions could reasonably be expected to be sentenced to imprisonment for a term of three years or more; (b) that the conduct involves the use of violence, results in substantial financial gain or is conduct by a large number of persons in pursuit of a common purpose.” 58 .     Section 81(5) provides: “For the purposes of this Act detecting crime shall be taken to include– (a) establishing by whom, for what purpose, by what means and generally in what circumstances any crime was committed; and (b) the apprehension of the person by whom any crime was committed; and any reference in this Act to preventing or detecting serious crime shall be construed accordingly ...” 59.     Paragraphs 3.1 to 3.7 of the Revised Code provide additional guidance on the application of the necessity and proportionality test in respect of both directed and intrusive surveillance: “The 2000 Act, 1997 Act and 1994 Act stipulate that the person granting an authorisation or warrant for directed or intrusive surveillance, or interference with property, must believe that the activities to be authorised are necessary on one or more statutory grounds. If the activities are deemed necessary on one of more of the statutory grounds, the person granting the authorisation or warrant must also believe that they are proportionate to what is sought to be achieved by carrying them out. This involves balancing the seriousness of the intrusion into the privacy of the subject of the operation (or any other person who may be affected) against the need for the activity in investigative and operational terms. The authorisation will not be proportionate if it is excessive in the overall circumstances of the case. Each action authorised should bring an expected benefit to the investigation or operation and should not be disproportionate or arbitrary. The fact that a suspected offence may be serious will not alone render intrusive actions proportionate. Similarly, an offence may be so minor that any deployment of covert techniques would be disproportionate. No activity should be considered proportionate if the information which is sought could reasonably be obtained by other less intrusive means. The following elements of proportionality should therefore be considered: balancing the size and scope of the proposed activity against the gravity and extent of the perceived crime or offence; explaining how and why the methods to be adopted will cause the least possible intrusion on the subject and others; considering whether the activity is an appropriate use of the legislation and a reasonable way, having considered all reasonable alternatives, of obtaining the necessary result; evidencing, as far as reasonably practicable, what other methods had been considered and why they were not implemented. It is important therefore that all those involved in undertaking directed or intrusive surveillance activities or interference with property under the 2000 Act, 1997 Act or 1994 Act are fully aware of the extent and limits of the authorisation or warrant in question.” 60.     With regard to collateral intrusion, paragraphs 3.8 to 3.10 of the Revised Code provide that: “Before authorising applications for directed or intrusive surveillance, the authorising officer should also take into account the risk of obtaining private information about persons who are not subjects of the surveillance or property interference activity (collateral intrusion). Measures should be taken, wherever practicable, to avoid or minimise unnecessary intrusion into the privacy of those who are not the intended subjects of the surveillance activity. Where such collateral intrusion is unavoidable, the activities may still be authorised, provided this intrusion is considered proportionate to what is sought to be achieved. The same proportionality tests apply to the likelihood of collateral intrusion as to intrusion into the privacy of the intended subject of the surveillance. All applications should therefore include an assessment of the risk of collateral intrusion and details of any measures taken to limit this, to enable the authorising officer fully to consider the proportionality of the proposed actions.” 61.     Pursuant to paragraph 3.27 of the Revised Code, where authorisations were granted orally under urgency procedures a record detailing the actions authorised and the reasons why the urgency procedures were used should be recorded by the applicant and the authorising officer as a priority. There would then be no requirement to submit a full written application. c.     Review of authoritsations 62 .     Paragraphs 3.22 to 3.26 of the Revised Code provides for the regular review of authorisations: “Regular reviews of all authorisations should be undertaken to assess the need for the surveillance or property interference activity to continue. The results of a review should be retained for at least three years (see Chapter 8). Particular attention is drawn to the need to review authorisations frequently where the surveillance or property interference involves a high level of intrusion into private life or significant collateral intrusion, or confidential information is likely to be obtained. In each case the frequency of reviews should be considered at the outset by the authorising officer or, for those subject to authorisation by the Secretary of State, the member or officer who made the application within the public authority concerned. This should be as frequently as is considered necessary and practicable. In some cases it may be appropriate for an authorising officer to delegate the responsibility for conducting any reviews to a subordinate officer. The authorising officer is, however, usually best placed to assess whether the authorisation should continue or whether the criteria on which he based the original decision to grant an authorisation have changed sufficiently to cause the authorisation to be revoked. Support staff can do the necessary research and prepare the review process but the actual review is the responsibility of the original authorising officer and should, as a matter of good practice, be conducted by them or, failing that, by an officer who would be entitled to grant a new authorisation in the same terms. Any proposed or unforeseen changes to the nature or extent of the surveillance operation that may result in the further or greater intrusion into the private life of any person should also be brought to the attention of the authorising officer by means of a review. The authorising officer should consider whether the proposed changes are proportionate (bearing in mind any extra intended intrusion into privacy or collateral intrusion), before approving or rejecting them. Any such changes must be highlighted at the next renewal if the authorisation is to be renewed. Where a directed or intrusive surveillance authorisation provides for the surveillance of unidentified individuals whose identity is later established, the terms of the authorisation should be refined at a review to include the identity of these individuals. It would be appropriate to convene such a review specifically for this purpose. This process will not require a fresh authorisation, providing the scope of the original authorisation envisaged surveillance of such individuals. Such changes must be highlighted at the next renewal if the authorisation is to be renewed.” d.     Duration and renewal of authorisation α.     Directed surveillance 63 .     Pursuant to paragraphs 5.10 and 5.11 of the Revised Code, a written authorisation granted by an authorising officer will cease to have effect (unless renewed or cancelled) at the end of a period of three months beginning with the time at which it took effect, while urgent oral authorisations or written authorisations granted by a person who is entitled to act only in urgent cases will, unless renewed, cease to have effect after seventy-two hours beginning with the time the authorisation was granted. 64 .     Paragraph 5.13 provides that at any time before a directed surveillance authorisation (other than one granted by a member of the intelligence services) would cease to have effect, the authorising officer may renew it in writing for a period of three months if he or she considers it necessary for the authorisation to continue for the purpose for which it was given. Renewals may also be granted orally in urgent cases and last for a period of seventy-two hours. The renewal will take effect at the time at which the authorisation would have ceased to have effect but for the renewal. 65 .     According to paragraph 5.15 of the Revised Code all applications for the renewal of a directed surveillance authorisation should record, either at the time of authorisation or, in the case of urgent cases renewed orally, when reasonably practicable: whether it is the first renewal or every occasion on which renewal was previously authorised; any significant changes to the information in the initial application; the reasons why the authorisation should continue; the content and value to the investigation or operation of the information so far obtained by the surveillance; and the results of regular reviews of the investigation or operation. β.     Intrusive surveillance 66 .     Paragraph 6.23 of the Revised Code provides that a written authorisation granted by the Secretary of State, a senior authorising officer or a designated deputy will cease to have effect (unless renewed) at the end of a period of three months beginning with the day on which it took effect. Oral authorisations given in urgent cases by the Secretary of State, a senior authorising officer or designated deputy, and written authorisations given by those entitled to act in urgent cases, will cease to have effect (unless renewed) at the end of the period of seventy-two hours beginning with the time when they took effect. 67 .     If, at any time before the authorisation expires, the senior authorising officer or, in his absence, the designated deputy considers that the authorisation should continue to have effect for the purpose for which it was issued, paragraph 6.27 of the Revised Code permits him to renew it in writing for a further period of three months. As with the initial authorisation, paragraph 6.28 requires the senior authorising officer to seek the approval of a Surveillan