Criminal Investigation (Covert Powers) Act 2012

This section applies to local controlled operations but not to cross‑border controlled operations.

If a participant in an authorised operation engages in unlawful conduct (other than controlled conduct) in the course of the operation, the principal law enforcement officer for the operation may, within 24 hours (or any longer period that the authorising officer may, in exceptional circumstances, allow) after the participant engages in that conduct, apply to the authorising officer for retrospective authority for the conduct.

An application under this section may be made in such manner as the authorising officer permits.

The authorising officer may require the principal law enforcement officer to furnish such additional information concerning the relevant conduct as is necessary for the authorising officer’s proper consideration of the application.

After considering an application under subsection (2), and any additional information furnished under subsection (4), the authorising officer —

may grant retrospective authority in accordance with the application; or

may refuse the application.

Retrospective authority must not be granted unless the authorising officer is satisfied —

that the participant who engaged in the conduct believed on reasonable grounds —

that there was a substantial risk to the success of the authorised operation; or

that there was a substantial risk to the health or safety of a participant in the operation, or any other person, as a direct result of the conduct of the authorised operation; or

that criminal activity other than the criminal activity in respect of which the authorised operation is being conducted had occurred, or was likely to occur, and that there was a substantial risk that evidence relating to that criminal activity would be lost,

that, at all times prior to those circumstances arising, the participant had been acting in good faith; and

that the participant had not foreseen, and could not reasonably be expected to have foreseen, that those circumstances would arise; and

that, had it been possible to foresee that those circumstances would arise, authority for the relevant conduct would have been sought; and

that it was not reasonably possible in those circumstances for the participant to seek a variation of the authority for the operation to authorise the relevant conduct.

Subsection (6) does not allow retrospective authority to be granted with respect to any conduct that —

seriously endangered the health or safety of any person; or

caused the death of, or serious injury to, any person; or

involved the commission of a sexual offence against any person; or

resulted in unlawful loss of or serious damage to property (other than illicit goods).

The authorising officer’s power to grant a retrospective authority under this section cannot be delegated to any other person.