Commentary on provisions of Act Section 1: Authorisation of criminal conduct
Section 1(1) and (2) amend section 26 of RIPA to introduce a new category of conduct to which Part II applies: criminal conduct in the course of, or otherwise in connection with, the conduct of covert human intelligence sources.
	Section 1(3) inserts a new subsection (8A) into section 26. New subsection (8A) provides a definition of what is meant by "criminal conduct in the course of, or otherwise in connection with, the conduct of a covert human intelligence source".
	Section 1(4) amends section 29 of RIPA, inserting new subsection (6ZA). New subsection (6ZA) provides that a section 29 authorisation can no longer be used to authorise any criminal conduct. The effect of the Act is to require that an authorisation under new section 29B must instead be used to authorise criminal conduct. Section 1(5) inserts new section 29B into RIPA. Section 29B provides a power for a "criminal conduct authorisation" to be granted. Section 29B has several components.
	Subsection (1) provides designated persons with the power to grant criminal conduct authorisations.
	Subsection (2) provides a definition of a "criminal conduct authorisation".
	Subsection (3) requires that a section 29 authorisation for the use and conduct of a CHIS must either already be in place before a criminal conduct authorisation is granted, or must be granted at the same time as the criminal conduct authorisation. The reason for that is that it is a bolt-on provision for criminal conduct and is reliant on the fact that other requirements and safeguards that are already set out in section 29 of RIPA will apply to authorisations granted under new section 29B.
	Subsection (4) sets out the test that must be satisfied before a criminal conduct authorisation may be granted: it must be necessary for one or more of the three specified grounds in subsection (5); it must be proportionate; and must satisfy any requirements imposed by an order made by the Secretary of State. It is possible for a public authority to take a precautionary approach and grant a criminal conduct authorisation in circumstances in which the public authority is uncertain whether the conduct to be authorised would amount to a criminal offence. However, the criminal conduct authorisation will only have effect to the extent that the authorised conduct would constitute crime.
	A designated person may not grant a criminal conduct authorisation unless he or she believes that the authorisation is necessary on one of the grounds listed in subsection (5).
	Subsections (6) and (7) set out further considerations for the person granting the authorisation to take into account when deciding whether an authorisation is necessary and proportionate, where they are relevant. This includes the requirements of the Human Rights Act 1998.
	Subsection (8) specifies the nature and limits for the grant of a criminal conduct authorisation. The authorisation must specify or describe the conduct being authorised. The criminal conduct that may be authorised is not limited to criminal conduct by a CHIS: a criminal conduct authorisation may authorise conduct by someone else "in relation to" a CHIS, namely those within a public authority that are involved in or affected by the authorisation.
	The conduct that is authorised must relate to a CHIS who is specified or described in the authorisation. The conduct being authorised must also relate to an investigation or operation and that investigation or operation must be specified or described in the authorisation.
	If a criminal conduct authorisation is granted by a person, and the authorisation does not meet the requirements of new section 29B, the authorisation has no effect in relation to any criminal conduct.
	Subsection (9) provides that a criminal conduct authorisation granted to a CHIS under section 29B ceases to have effect at the same time as the section 29 authorisation that relates to that CHIS ceases to have effect.
	Subsection (10) confers on the Secretary of State a power to make secondary legislation. This may be used to either prohibit the authorisation of specified conduct, or to impose additional requirements that must be satisfied for the authorisation of specified criminal conduct.
	It is possible for a section 29B criminal conduct authorisation to relate to more than one CHIS (in the same way that it is possible for a section 29 use and conduct authorisation to relate to more than one CHIS). Where a section 29B criminal conduct authorisation relates to more than one CHIS, each individual CHIS would need to be specified or described in the authorisation, and the authorisation would need to relate to a particular investigation or operation. The section 29B authorisation could only be granted at the same time as, or after, a related section 29 authorisation had been granted in relation to the CHIS concerned.
	It is possible that one criminal conduct authorisation may relate to multiple section 29 authorisations. Where a section 29 use authorisation ceases to have effect, the criminal conduct authorisation will cease to have effect in as much as it relates to that section 29 authorisation (and the CHIS to whom that section 29 authorisation relates) but will continue to have effect so far as it relates to any other section 29 authorisation(s) that have effect.
	Where there is a section 29 CHIS authorisation in place that itself relates to multiple CHIS, a single criminal conduct authorisation could similarly cover all of those CHIS, provided that the circumstances are such that the CHIS are connected by a single operation or investigation.