The Regulation of Investigatory Powers (Covert Human Intelligence Sources: Matters Subject to Legal Privilege) Order2010

JurisdictionUK Non-devolved
CitationSI 2010/123

2010 No. 123

Investigatory Powers

The Regulation of Investigatory Powers (Covert Human Intelligence Sources: Matters Subject to Legal Privilege) Order 2010

Made 22th January 2010

Laid before Parliament 26th January 2010

Coming into force 18th February 2010

The Secretary of State, in exercise of the powers conferred by sections 29(2)(c) and (7)(b) and 43(8) of the Regulation of Investigatory Powers Act 20001, makes the following Order:

1 GENERAL

PART 1

GENERAL

S-1 Citation and commencement

Citation and commencement

1. This Order may be cited as the Regulation of Investigatory Powers (Covert Human Intelligence Sources: Matters Subject to Legal Privilege) Order 2010 and shall come into force on 18th February 2010.

S-2 Interpretation

Interpretation

2.—(1) In this Order—

the 2000 Act” means the Regulation of Investigatory Powers Act 2000;

“matters subject to legal privilege” means (subject to paragraph (2)) matters to which section 98(2), (3) or (4) of the Police Act 19972applies;

“private information” has the meaning given in section 26(10) of the 2000 Act; and

“source” means covert human intelligence source.

(2) For the purposes of this Order—

(a)

(a) communications and items are not matters subject to legal privilege when they are in the possession of a person who is not entitled to possession of them, and

(b)

(b) communications and items held, or oral communications made, with the intention of furthering a criminal purpose are not matters subject to legal privilege.

2 CONDUCT TO WHICH THIS ORDER APPLIES

PART 2

CONDUCT TO WHICH THIS ORDER APPLIES

S-3 Matters subject to legal privilege

Matters subject to legal privilege

3.—(1) This Order applies where any conduct that is, or is to be, authorised in an authorisation under section 29 of the 2000 Act consists in any activities involving conduct of a source, or the use of a source, to—

(a)

(a) obtain matters subject to legal privilege,

(b)

(b) provide access to any matters subject to legal privilege to another person, or

(c)

(c) disclose matters subject to legal privilege.

(2) Subject to paragraph (3), an authorisation for conduct to which this Order applies shall not be granted or renewed unless it satisfies the requirements imposed by Part 3.

(3) Where a single authorisation under section 29 of the 2000 Act authorises conduct to which this Order applies and other conduct falling within Part II of that Act, the requirements imposed by Part 3 of this Order shall only apply in relation to those parts of the combined authorisation which authorise conduct falling within paragraph (1).

3 APPROVAL BY ORDINARY SURVEILLANCE COMMISSIONER OR SECRETARY OF STATE

PART 3

APPROVAL BY ORDINARY SURVEILLANCE COMMISSIONER OR SECRETARY OF STATE

S-4 Approving officer

Approving officer

4.—(1) Where the person designated for the purposes of section 29 of the 2000 Act is—

(a)

(a) a member of any of the intelligence services,

(b)

(b) an official of the Ministry of Defence,

(c)

(c) an individual holding an office, rank or position in Her Majesty’s Prison Service or the Northern Ireland Prison Service, or

(d)

(d) a member of Her Majesty’s forces,

the approving officer for the purposes of this Part shall be the Secretary of State.

(2) In any other case, the approving officer shall be an ordinary Surveillance Commissioner.

S-5 Notification

Notification

5.—(1) Before a person grants or renews an authorisation for conduct to which this Order applies, that person shall, in accordance with arrangements made by the relevant approving officer, give notice to the approving officer.

(2) A notice under this article—

(a)

(a) shall be given in writing to the relevant approving officer,

(b)

(b) shall state that the approval of an approving officer is required by article 6 before the authorisation is granted or renewed, and

(c)

(c) shall include the matters specified in paragraph (3) or, as the case may be, paragraph (4).

(3) Where a person gives notice under paragraph (1) seeking approval to grant an authorisation, the notice to the approving officer shall, in addition to the statement required by article 5(2)(b), specify—

(a)

(a) the grounds on which the person giving the notice believes the matters specified in article 6(4) and section 29(2)(b) and (c) of the 2000 Act;

(b)

(b) the conduct falling within article 3(1) that is, or is to be, authorised by the authorisation;

(c)

(c) the identity, where known, of—

(i) the professional legal adviser and his client or any person representing his client, or

(ii) the professional legal adviser or his client or any such representative and any other person,

to whom the activities of the source relate;

(d)

(d) the matters subject to legal privilege (to the extent known) to which the conduct that is to be authorised by the authorisation relate; and

(e)

(e) whether the conduct to be authorised by the authorisation is likely to result in the obtaining of private information about any person who is not specifically identified in the notice for the purposes of the investigation or operation.

(4) Where a person gives notice under paragraph (1) seeking approval to renew an authorisation, the notice to the approving officer shall, in addition to the statement required by article 5(2)(b), specify—

(a)

(a) whether the authorisation is being renewed for the first time, or, where it has been previously renewed, each occasion on which it has been renewed;

(b)

(b) the matters required by paragraph (3), as they apply at the time of the notice seeking approval to renew;

(c)

(c) every respect (if any) in which the information contained in the previous notice under this article has changed;

(d)

(d) the reason why it is considered necessary to renew the authorisation;

(e)

(e) the content and value to the investigation or operation of the matters subject to legal privilege obtained from the conduct or the use of the source in the period since the grant of the authorisation;

(f)

(f) the results of any reviews of the matters mentioned in section 43(7) of the 2000 Act; and

(g)

(g) the period for which the authorisation is considered likely to continue to be necessary.

(5) Any notice that is required by this article to be given in writing may be given, instead, by being transmitted by electronic means.

S-6 Approval required for grant or renewal of authorisations

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