In this series we consider Covert Investigation as a means to detection. This includes why investigate covertly, the drawbacks, directed and intrusive surveillance, interception of communications, mobile phones, computers, CHIS's and the legal issues including the effect of the Human Rights legislation.

The articles are excerpts from a new book from Blackstone’s, 'Covert Investigation' 2nd Edition, written by two highly experienced former detectives (see ‘About the Authors’ at the end of the article).

Checklist of key issues when considering whether or not to deploy
covert investigation techniques

• What evidence or intelligence is being sought?
• How is it relevant to the operation under consideration?
• What is the least intrusive means of securing such evidence or information?
• What are the risks to the organization of such tactics? (Chapter 11)
• What are the risks to the organization’s staff of such tactics? (Chapter 11)
• What are the risks to the public or specific third parties when such tactics are
deployed? (Chapter 11)
• What are the risks to the subject of the investigation? (Chapter 11)
• Will such methods breach Article 8(1)? (1.7.1)
• Is there justification for doing so provided by Article 8(2)? (1.7.4)
• How is the legality test met? (1.7.3)
• How is the legitimacy test met? (1.7.4)
• How is the necessity test met? (1.7.5)
• How is the proportionality test met? (1.7.5)
• Are the arguments justifying the application to use covert investigation based on reliable
information/intelligence, or has the applicant adopted a ‘tick- the-box’ approach
to completing the application without giving full consideration to the facts of the case
and the issues arising?
• Have the arguments justifying the granting of authorization to use covert investigation
been fully articulated, or has the authorizing offi cer merely paid lip service to the
pro forma authorization template via which authority is granted?
• How are the methods by which the evidence/intelligence will be obtained to be
protected at trial?

Planning covert investigation actions

Remember to include the PLAN for covert investigation tactics in all investigation
policy-book entries relating to covert investigation considerations and
decisions.

P PROPORTIONALITY
Why is it proportionate to obtain the intended product of this surveillance
in the manner proposed? (1.7.5)

L LEGITIMACY
What is the legitimate purpose of the proposed action: the prevention of
disorder or crime; the interests of national security; the interests of public
safety; the interests of the economic well-being of the country; the protection
of health or morals; the protection of the rights and freedoms of
others? (1.7.4)

A AUTHORITY TO UNDERTAKE PROPOSED ACTION
What is the lawful foundation and authority for the proposed action? From
whom must authorization be sought? (1.7.3)

N NECESSITY OF PROPOSED ACTION
Why is the proposed action necessary? (1.7.5)

About the authors: Clive Harfield is Associate Professor of Law at the University of Wollongong, NSW. He previously served with the National Crime Squad and as a Detective Inspector and BCU Intelligence and Covert Operations Manager for Warwickshire Police. Karen Harfield is a Senior Executive with the Australian Crime Commission who previously served with HM Inspector of Constabulary and as Head of Intelligence for Warwickshire Police. Clive and Karen Harfield are also co-authors of 'Intelligence', another Blackstone's Practical Policing title.

To purchase a copy of  'Covert Investigation 2nd edition' click here