Essays

Richard Thomas the Information Commissioner in 2004 suggested that the creeping jurisdiction of the state was undermining our liberty. Does the current law in the United Kingdom protect the rights of the citizen whilst facilitating proportionate police practices to collect evidence and intelligence in their efforts to combat law-breaking?
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In this paper we will discuss the current law and legal framework as it applies to the UK. I will use the Regulation of Investigatory Powers Act 2000 (RIPA) as a case study of how investigating authorities collect evidence and issues that may flow from this. I will examine Human Rights implications and the balance which the state should strive to achieve, considering whether the state tacitly accepts that agents can flout the law to collect evidence by covert methodologies.

David Lyon, commenting on Ellul’s work, highlights how the mighty cultures of Babylon and Nineveh, which had highly closed societies, protected extensively by walls and machines, nevertheless fell to their enemies over time. The latter half of the 20th century onwards witnessed the UK and other nations commence amassing considerable evidence and intelligence gathering capacity using covert methods, capacity accelerated following the major terrorist atrocities in New York, Madrid and London.

In 2004, then Information Commissioner, Richard Thomas, warned of the creeping jurisdiction of the state which was undermining our liberty and turning Britain into a surveillance society . The United Kingdom has a long history of tolerating questionable practices as is highlighted in R v Leathem , where Crompton J stated;

‘[I]t matters not how you get it, if you steal it even, it would be admissible in evidence’

Covert investigations are both preventative and investigative in nature and have the benefit of providing evidence, which is often incontrovertible . The proliferation of this type of evidentiary collection is driving us inexorably towards a society more reflective of Focault’s “panopticon”, epitomizing the perfected discipline of constant surveillance. In the UK we have had a mixed history of combating the excesses of the State, dating as far back as 1765 when in Entick v Carrington , the courts found State necessity to be unacceptable unless backed by a statutory authority to act in that particular manner.

During the last decades of the 20th century, the UK found itself increasingly in conflict with the ECrtHR in respect of its failures to legislate on the collection of evidence and intelligence secured covertly , where there was an over reliance on Home Office Circulars and Guidance, which was found not to meet the protocols of the ECHR .

The piecemeal approach in respect of the governance of police action regarding covertly amassed evidence was particularly problematic . The rights protected in the ECHR are not considered to be overly burdensome and the state should be able to remain within these boundaries .

Evidential collection within this sphere will often engage Art 8 ECHR, “Right to respect for private and family life”;

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

Etizoni suggests, societies should seek to craft a balance between social responsibilities, liberty and the common good , a conflicting equilibrium in the needs of society and individual rights which are all of significant importance. However, as Nick Taylor suggests;

“Those rights are not unlimited: we live in communities of individuals who also have rights”

The UK was placed under considerable pressure following Klass v Germany which established the need for domestic legislation to gather evidence through covert methods. Further pressure followed in the wake of Malone v UK , R v Effick and Halford v UK, the final catalyst being, the Human Rights Act 1998 (HRA 1998), which entrenched ECHR protocols quite firmly within the reach of British courts. RIPA emerged concomitantly as a mechanism to ensure proportionate conduct by the State’s agents in combating crime and collecting evidence covertly. The HRA 1998 also places obligations on public authorities not to act incompatibly with a convention right .

RIPA applies to all Public Authorities, though not all are legislated to conduct evidence gathering activities by way of covert methodology. RIPA places a framework of necessary activities that will permit this, which covers; prevention of crime or disorder, national security, economic wellbeing of the UK, protecting public health, public safety and assessing public levies. Intrusive activities are more limited including, prevention of serious crime or disorder, national security, and economic wellbeing of the UK. The use of the CHIS is as with Directed Surveillance but additionally may include for a purpose specified by order of the Secretary of State.

Commentators suggest RIPA is overly focused on and built around property protection.

“There is a considerable amount of evidence pointing to a link between property and privacy ”

Livingstone et al further critique this as undesirable. This view was echoed in Paton v Poole BC , where the surveillance activities of the a local education authority when collecting evidence that a parents application for a school were false resulted in an investigation focused more on the locations than the actual ends of collecting evidence of a breach of criteria - a matter adversely commented on in the findings of the IPT .

RIPA arguably meets the State’s obligations for a legislative framework to facilitate interference with Art 8 ECHR rights, rather than advancing a structured evidence gathering framework for covertly obtained evidence. We see this complex proposition in Patton v Pool BC where the public authority acted unlawfully with apparent immunity from consequence in collecting evidence to deal with Ms Patton. In their RIPA application, they referred to the families criminality yet failed to reflect on their own recklessness in failing to comply with RIPA. Helen Fenwick , suggests that agents could be prosecuted for burglary when they engage in improperly authorised action . However in the only published case to date by the IPT we see no sanction imposed arising from the unlawful conduct of council employees. This culture of secrecy which pervades in the UK and has been described as the “Real British Disease” .

It is important when legislating in respect of covertly obtained evidence to ensure protections in respect of the evidence so obtained, and balancing

When legislating it is essential to have positive protections for covertly obtained evidence, whilst ensuring we protect the rights of society. An important aspect of Strasbourg decisions flows from the “safeguards” principle, the standards reflected on in Weber and Savaria v Germany , which are arguably missing in RIPA. Ferguson and Wadham critique evidence gathered in a covert manner as follows;

“Areas of questionable Convention compliance were indentified prior to the enactment of RIPA, and subsequent experience of the Act has done little to assuage these concerns”

There concerns raised in 2003 resonate no less today with the necessity of the Regulation of Investigatory Powers Order 2010 (RIPO) following in the wake of two Northern Ireland cases, R v Sandhu , Re McE , with hastily enacted legislation introduced again to plug gaps, Neuberbger LJ commenting ;

“The government has been knowingly sanctioning illegal surveillance for more than a year ”

The “Establishment” view distinguishes Helen Fenwicks earlier views, John Grieve ;

“it is as much a neglect of duty not to use every lawful endeavor, not to be legally audacious in seeking every investigative tool to bring offenders to justice.”

This view has been developed recently, Gillen J looking at the issue of evidence secured covertly in relation to solicitors suggested;

“no legal regime unless it is entirely inflexible and restrictive can avoid entirely the possibility of abuse of power by agents of the state ”

A key aspect of intercept of communications intelligence is that can’t be used as evidence, and in fact can’t even be referred to in proceedings , re-emphasising the essentially secret culture that surrounds this area of enforcement. Examining this, Chillcot’s Privy Council Review on Intercept as Evidence opened its recommendations advancing the argument that intercept intelligence as evidence should be introduced . This has not been taken forward, entrenching the secrecy culture surrounding covertly obtained evidence.

The courts have been less interested in how evidence is obtained and more focused on what has been obtained as we observed in Leathem earlier in the paper. The courts have iterated that they are not there to supervise and discipline the police and prosecuting authorities in how they obtain evidence. The Police and Criminal Evidence Act 1984 (PACE 1984), introduced provisions to specifically curb the use of evidence secured in an unfair manner;

“the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it”

The post PACE 1984 position has however not significantly changed with covertly obtained evidence being described as one of the most effective weapons in the hands of prosecution . In R v Khan , the police obtained evidence during a surveillance that a suspect had imported drugs into the UK, during the process they had committed Criminal Damage and had no legal authority in respect of the operation, Lord Nelson however observed as follows;

“it would be a strange reflection on our law if a man who has admitted his participation in the illegal importation of heroin should have his conviction set aside on the grounds that he had his privacy invaded”

But the courts have set limits as have been observed in the ECrtHR in the even murkier sphere of Agent Provocateur, with active involvement of the state to create an offence and then use this evidence as being beyond acceptable limits where police officers have been deemed to actualy incite the crime . We further note that the court placing limits in a series of cases which were stayed following the police bugging of an exercise yard and recording suspects post charge in discussion with their legal representative . This can be distinguished from the later Sandhu case above, where the solicitor involved was the actual subject of the evidence gathering process of serious criminal misconduct.

The leading case in respect of exclusion may be viewed in the Attorney Generals Reference following R v Loosley where a suspect who was supplying cigarettes to undercover police officers, was incited to supply Heroin, and which he initially hesitated to do. He subsequently did and was charged. An application to exclude evidence under S78 PACE was rejected at trial. The police officer had presented himself as a willing purchaser. The court appears to have rightly rejected the exclusion of the evidence, but has stayed proceedings because the police incited the crime. This is consistent with the ECrtHR jurisprudence, in Texeira de Castro V Portugal . Evidence will not be excluded in respect of behaviour, but the case may be stayed where found to be an abuse of the process and justice.

The UK domestic position on evidence can in many ways be sumarised in the words of Jeremy Bentham,

‘Evidence is the basis of justice: to exclude evidence is to exclude justice’

The position in the UK appears on the face of it, in respect of Loosley, to be as stated in Leathem 150 years ago, however we see the growth of jurisprudence and doctrine that will use the power of the court to stay trials where there has been an abuse of state activity which is consistent with the that advanced centuries ago with Entrick V Carrington. The position is a systemic view where the integrity of evidence as a concept is maintained, but a natural justice to see that wrong is not done, permeates from the bench’s of the court.

It is arguable whether the misbehavior of the State and its representatives is properly sanctioned by the court, in that evidence may still flow, but it can be equally argued that the power to curb abuse through the staying of prosecutions where abuse of process is detected is clearly evident and is acted upon by the courts. 

Bibliography

Books
• PONTING Clive Secrecy in Britain, (Basil Blackwell, 1990)
• RAAB, The Assault on Liberty, (Fourth Estate, 2009)
• LUSTGARTEN & LEIGH, Surveillance & Privacy: Values and Principles (Clarendon Press1994)
• LYON, David Resisting Surveillance (Surveillance Reader, Open University, 2000)
• HARFIELD C and HARFIELD K, Covert Investigation (2nd edition, OUP, Oxford 2008)
• LYONS, Theorizing Surveillance (William Publishing, 2006)
• FOSTER, Steve Human Rights and Civil Liberties, (2nd Edn Pearson Longman, 2008)
• LIVINGSTONE, WHITTY & MURPHY Civil Liberties Law: Human Rights Act Era, (Butterworths, 2001)
• FENWICK H, Civil Liberties and Human Rights (4th edition, Routledge-Cavendish, Oxon 2007)
• ETIZONI, A, The limits of Privacy, (Basic Books, 1999)
• BENTHAM, J, A Rational of Judicial Evidence, (Hunt and Clark, 1827)

Journal Articles

• TAYLOR, Policing, privacy and proportionality, (Special Edition on Privacy, European Human Rights Review, 2003)
• Case Comment, Kennedy V United Kingdom (23839/05):interception of communications – Regulation of Investigatory Powers Act 2000 (European Human Rights Law Review, 2010) 5
• TAYLOR N, “State Surveillance and the right to Privacy”, (2002, Surveillance and Society)
• FERGUSON & WADHAM, Privacy and Surveillance: a review of the Regulation of Investigatory Powers Act 2000, (Special Edition on Privacy, European Human Rights Review, 2003)
• Case Comment, Covert surveillance: lack of safeguards – Articles 6(1), 8 & 13 (European Human Rights Law Review, 2007)

Parliamentary Report

• Privy Council Review of Intercept Evidence, 30th January 2008