Police Surveillance Techniques and Your Human Rights
By Aziz Rahman, Solicitor and Jonathan Lennon, Barrister

Techniques
There is a dazzling array of weapons available to the law enforcement authorities from simple well known techniques such as use of informants/undercover officers to the even simpler viewing of CCTV camera footage. There are also more covert devices such as the probe or the ‘bug’. As long ago as 1995 there were said to be 1300 police bugging operations. Some bugs these days are ‘commandable’; i.e. they can be turned on or off – this makes it easier to persuade the authorities, and the Courts, that the risk of invasion to a suspect’s privacy is reduced as a bug can be turned off during an obvious personal, as opposed to criminal, interlude.

In addition to listening devices there is also the traditional simple following of suspects – or nowadays the fixing of a global positioning tracking device on the underside of a suspect’s car. The issues however always remain the same – the citizen’s right to privacy over the legitimate fight against crime. Now, in the modern age, the National Criminal Intelligence Service has warned that the internet can be used as a means of communicating between criminals and the increase in the use of encryption (locking/coding of e.mails) has in turn led to anti-encryption measures by the State.

There is also the simple use of telephone and postal mail intercepts. The fact is that the State is everywhere, they can find you, they can listen to you – they may even have a bug in your cell right now – they can hear you and track you down by your use of your mobile phone (phone base station triangulation) and they can see where you have been from your credit card records and your welfare benefit claims and so on. Where does it all end – can your privacy be violated with at a whim – can your private words to your friend or you wife be used against you in a public court-room?

Regulation of Investigatory Powers Act 2000
Since the Human Rights Act 1998 came in to force each one of us has certain rights guaranteed, for example the right to a fair trial – this is guaranteed under Article 6 of the European Convention. But you also have a right to privacy, this is guaranteed under Article 8. The State can only infringe this right – e.g. by listening to your conversations, following you etc, if it is for a reason proscribed in Article 8(2), e.g. “for the prevention of disorder or crime” and then only if the interference is ‘proportionate’ and “in accordance with the law”. This last part (lawfulness) has landed the UK in trouble in Strasbourg especially in the 1980s and 1990s. The Government was forced to introduce legislation in an attempt to comply with the Convention. The latest legislation is the Regulation of Investigatory Powers Act 2000 (RIPA). Under RIPA the different types of surveillance are labelled and given a set Code of Practice which regulates the practice of applying for authorisation, the duration of the operation, the nature of the interference etc. The powers RIPA regulates are the interception of communications (bugging etc); acquisition of telecommunications data (getting your phone billing records); surveillance and access to encrypted data. Surveillance is in turn sub-divided into 3 types; first of all there is Directed Surveillance. This is typically the authorisation for a subject to be watched and followed – it requires no trespass onto property. Then there is Intrusive Surveillance; this will involve the placing of bugs in cars etc and any interference with property. Then there is the use of Covert Human Intelligence Sources – i.e. informants and undercover officers.

For each type of surveillance it must be shown to be ‘necessary’, and that the invasion of privacy necessary will be the minimum possible. If properly authorised the fruits of this type of surveillance may become admissible in a criminal trial.

However, telephone interception material is not used in evidence. The material is used for intelligence purposes making it difficult for a Defendant to challenge why it was he was a subject, as under s17 of RIPA there is a prohibition on asking questions at trial about the use of telephone intercepts. There are exceptions under s18 and recently the House of Lords has made some in-roads into this culture of secrecy about intercepts – AG’s Reference No. 5 of 2002 [2004] UKHL 43.

The State can and does breach its subjects’ right to privacy – the point is what can you do about it if you are brought to trial on the back of that breach? It must be remembered that even if you do successfully argue a breach of Article 8 that does not mean that the trial will be stopped as a breach of Article 6 – that point is often mis-understood. If there has been a breach then it may be more likely that the particular evidence in question may be excluded – what is required for that to be a possibility is a thorough understanding of the Codes of Practice to RIPA and the issues of proportionality etc which flow from human rights law so that a challenge can be mounted, if possible, to the ‘lawfulness’ of the interference, as required under Article 8(2).

Jonathan Lennon is a Barrister specialising in criminal defence and Prison Law at 23 Essex Street Chambers in London. He is co-editor of the Prison Law Reports.

Aziz Rahman is a Solicitor-Advocate and Partner at Rahman Ravelli Solicitors specialising in human rights, large scale conspiracy allegations and serious crime.

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