Covert intrusive surveillance

Simon McKay, of McKay Law Solicitors and Advocates, examines disclosure of intrusive surveillance authorisations.
In the case of GS and Others v R [2005] the Court of Appeal considered the extent to which evidence of approvals for authorisations could be put before the Court when the admissibility of covert intrusive surveillance was in issue.
The appellants were charged with serious drug offences. The prosecution wanted to admit evidence obtained from covert surveillance devices of conversations between the appellants. The use and deployment of the devices had been authorised under Part II of the Regulation of Investigatory Powers Act 2000 (RIPA). The defence objected and applied to exclude the evidence and/or stay the indictment on the grounds that it was an abuse of process. The trial judge made two rulings: (1) the approvals from the surveillance commissioners were sufficient to legitimise the admissibility of the evidence (subject to a review by the prosecution of the material and any further disclosure that may be required); and (2) in making an application under section 78 PACE, the defence is not entitled to see the authorisations or any of the underlying material placed before the surveillance commissioners for the purposes of obtaining their approvals.
The Court of Appeal set out the legislative matrix relating to authorisations and the oversight mechanisms. In summary the court noted:
1.Greater protection existed in relation to intrusive surveillance.
2.By section 27(1), RIPA 2000, all surveillance carried out under Part II is “lawful for all purposes” providing (a) it is authorised under the Act, and (b) undertaken in accordance with the authorisation.
3.Section 32(1)-(4) empowers the Home Secretary and chief constables to grant authorisations for the carrying out of intrusive surveillance.
4.They may only do so if it meets one of the grounds set out in the Act, typically, in the present context, the prevention and detection of serious crime; and
5.If it is proportionate to what is sought to be achieved by carrying it out.
6.This requires consideration to be given whether the information could be reasonably obtained by other, less intrusive, means.
Sections 35 and 36 set out the requirements in relation to the surveillance commissioners and the granting and carrying out of intrusive surveillance authorisations. Commissioners must be notified of the authorisation being granted, they must be provided with information and will subject the authorisation to scrutiny and approval. A commissioner can refuse or quash an authorisation, although where they do, this may be the subject of an appeal to the Chief Surveillance Commissioner. Thereafter, no further appeal lies against the decision and the decision can not be questioned in any court (this is the effect of the application of section 91(10) of the Police Act 1997 in relation to corresponding property interference and the 2000 Act).  
The court also set out the provisions relating to the investigatory powers tribunal.
In ruling in the way he did, the trial judge recorded that “the law has erected a number of significant thresholds to be surmounted by authorities before they may employ the 2000 Act as a means of intrusion on an individual’s private life”. It was noted that none of the provisions of Part II, RIPA, touch on the admissibility of the material obtained only the lawfulness of the conduct of the officers or organisation concerned (see R v Harmes and Crane [2006] for example). Admissibility was a question for the trial judge having regard to “the effect of the behaviour of the police on the fairness of the proceedings that is important, rather than the illegality of their conduct”.
In GS the defence asked for disclosure of the material placed before the surveillance commissioners when the police sought approval or renewal of their authorisations as well as the applications and the approvals themselves. They submitted that without such disclosure they could not formulate the applicatio