19Retrospective authority

19 Retrospective authority (1) This section applies if a participant in an authorised operation engages in unlawful conduct (other than unlawful conduct that is controlled conduct) in the course of the operation. (2) The principal law enforcement officer for the operation may, within 24 hours after the participant engages in that conduct, apply to the chief officer of the law enforcement agency for retrospective authority for the conduct. (3) The chief officer may require the principal law enforcement officer to provide any additional information concerning the relevant conduct that is necessary for the chief officer to properly consider the application. (4) After considering an application under subsection (2), and any additional information provided under subsection (3), the chief officer: (a) may grant retrospective authority in accordance with the application; or (5) The chief officer must not grant retrospective authority for conduct unless the chief officer is satisfied: (a) that, when the relevant conduct occurred, the participant who engaged in the conduct believed on reasonable grounds that one or more of the following circumstances existed: (i) there was a substantial risk to the success of the authorised operation; (ii) 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; (iii) criminal activity other than the criminal activity in respect of which the authorised operation was being conducted had occurred, or was likely to occur, and there was a substantial risk that evidence relating to that criminal

Police (Special Investigative and Other Powers) Act 2015 17 activity would be lost; (iv) relevant improper conduct other than the relevant improper conduct in respect of which the authorised operation was being conducted had occurred, or was likely to occur, and there was a substantial risk that evidence relating to that relevant improper conduct would be lost; and (b) the participant believed on reasonable grounds that the participant could not avoid that risk otherwise than by engaging in the relevant conduct; and (c) that, at all times prior to the circumstance arising, the participant had been acting in good faith and in accordance with any relevant code of conduct; and (d) that the participant had not foreseen, and could not reasonably be expected to have foreseen, that the circumstance would arise; and (e) that, had it been possible to foresee that the circumstance would arise, authority for the relevant conduct would have been sought; and (f) it was not reasonably possible in the circumstances for the participant to seek a variation of the authority for the operation to authorise the relevant conduct. (6) Subsection (4)(a) does not allow retrospective authority to be granted with respect to conduct giving rise to any of the following: (a) the offence of murder; (b) any other offence for which the common law defence of duress would not be available.