Law, morality and the authorisation of covert police surveillance

Management of covert investigations is a complex and multifaceted arena that engages the rights of individuals, the legitimate expectations of the wider community, and criminal justice practitioner judgments about lawfulness and legitimacy. This article examines two legal regimes (Australia and the United Kingdom) within which police surveillance may lawfully be conducted and considers the making of moral judgments in relation to prior authorisation as a mechanism of management and governance. It is argued that for police surveillance to be legitimate, it must be morally justifiable as well as legally justifiable. Prior authorisation is a mechanism that seems to have been devised primarily to ensure the lawfulness of police surveillance. It is a mechanism through which moral justification can also be ensured, but the operation of the current mechanisms considered here is each, in different ways, morally problematic. The vulnerability exists that any given use of police surveillance may be lawful but unethical, and therefore devoid of legitimacy, to the moral detriment of the community and the criminal justice system.