Covert human intelligence sources (CHIS)

Covert human intelligence sources (CHIS) applies to information obtained by a person who establishes or maintains a personal or other relationship with a person for the covert purpose of using it to obtain or provide access to any information. This type of surveillance covers use of informants and undercover officers. Again, CHIS may be authorised by a range of designated persons, depending on the public authority carrying out the surveillance. The grounds are identical to those for directed surveillance and the designated person must consider the use of CHIS proportionate. CHIS authorisations are subject to one additional requirement: there must be arrangements in place to ensure that: the source is subject to day-to-day responsibility by an appropriate officer; there is general oversight by another appropriate officer; there is an officer responsible for maintaining a record of the use made of the source; and there are restrictions on access to the records that disclose the identity of the source. The CHIS authorisation process is covered by Codes of Practice issued by the Home Office: the Code of Practice on Covert Surveillance and the Code of Practice on Covert Human Intelligence Sources.

Where CHIS use surveillance devices when acting undercover - that is, wires or hidden cameras, these devices are not considered ‘intrusive’ unless they are to be left on residential premises after the informant or undercover officer has left. Accordingly, authorisation for use of such devices where carried by a CHIS is not subject to the more stringent controls that should normally apply to this type of intrusive surveillance.

It remains to be seen whether the distinctions drawn between these different types of surveillance, and the different applicable safeguards, provide sufficient respect for private life. There may be occasions where surveillance falls into the category of directed surveillance - because, for example the device used is not put onto residential premises and produces less clear results, but it is equally as intrusive as surveillance which might have been carried out by using devices placed in the residential premises themselves. ‘Residential premises’ is also a far more limited category than the broad definition of ‘home’ in the ECHR. In terms of the adequacy of the safeguards, while the publication of procedures such as the CHIS Codes of Practice may satisfy one of the requirements under Article 8 that such surveillance be in accordance with law, it remains to be seen whether the application of the procedures to particular cases will always meet the requirements of the Convention rights and be justified. For example, if the police carry out surveillance without prior authorisation on the grounds that it was urgent or because they have obtained the consent of a landowner but not the occupant - for example a hotel owner but not the room occupant - then it is possible that this will be an unacceptable interference for the purposes of Article 8.

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