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Covert Surveillance Defencefront line defending

Front line defending in cases involving covert policing tactics

The Human Rights Act 1998 incorporates the European Convention of Human Rights into our domestic law. The police, the CPS, Customs, the Courts are all 'public bodies' and as such it is unlawful for them to act in a way which is incompatible with a citizen's human rights (s6 HRA 1998). Thus all our clients have human rights issues at stake.

  • our clients' right to a fair trial (Article 6)
  • the right to privacy (Article 8 and
  • the right to liberty (Article 5), are the three most relevant examples

These issues often rise to the surface in the larger cases that we handle. That has never been truer than it is now with the recent introduction of the Criminal Procedure Rules and large tracts of the Criminal Justice Act 2003 (from 4th April 2005). The Act has introduced the possibility of a second trial after acquittal in some serious cases; amendments to the disclosure regime, wholesale changes to the law on hearsay and the use of character evidence and radical overhauls to sentencing, release and recall. The Rules place heavy demands on both sides to identify all the issues early on and start working towards a trial date immediately. For this firm, with our resources and our experience in human rights and higher court litigation, this early identification of issues is not a problem. The key is pro-active defence preparation at all stages - not just a last minute rush immediately before trial.

For lawyers in this field it is a paradox that the years since the introduction of the Human Rights Act 1998 have seen Parliament passing more and more Draconian powers to the Courts, e.g. the new confiscation and civil recovery regimes under the Proceeds of Crime Act and the increased use of extended and life sentences.

We have risen to the challenges as they have come along and are constantly tackling new and novel areas of law and testing them against the 1998 Act. In a recent supergrass case that we were involved in the Court ordered the disclosure of the transcripts of the informant's telephone calls from prison. The case against our client (first on the indictment) was eventually withdrawn before the jury were sworn.

Tackling Covert Policing Evidence
The firm has developed a particular expertise in this area. Since the enactment of the Human Rights Act 1998 the State has had to place on a statutory footing all methods of police surveillance - this is a requirement of Article 8 of the Convention (right to privacy). The statue is called the Regulation of Investigatory Powers Act 2000. At Rahman Ravelli RIPA, the Codes of Practice under RIPA, the Police Act 1997 and other material relating to covert policing is part of our every day staple diet.

The Act itself provides for 3 different types of surveillance;

Directed surveillance
This is the traditional type of surveillance - the trailing of a suspect by a number of observation officers.

Intrusive Surveillance
This involves interference with property, e.g. placing a bug or tracking device in a car.

The Covert Human Intelligence Source
This is an informant - this may be an undercover police officer or may be a criminal in league with the police. See Informant Evidence - strategy and tactics.

Is the Surveillance Lawful?
All such surveillance must be authorised and each type must be justified. In our view, given the demands that the Human Rights Act places on the State and its agents it is important, in almost all cases, for the Crown to demonstrate that the surveillance was lawful.

In many cases the Crown can easily meet that challenge. In others they may wish to conceal important material from the defence. We have been involved in cases where a police officer has taken on an undercover role (notably in large-scale car-ringing allegations and a conspiracy to murder where the officer was pretending to be a 'hit-man'). In those sorts of cases the issue of entrapment may arise.

Abuse of Process and Public interest Immunity
Careful disclosure of the defence case may produce enough ammunition to launch an abuse of process application. It is cases like this where disclosure and Public Interest Immunity (PII) will often be a battleground for the parties. This is one area that causes defendants a great deal of concern and it is our speciality. In the field of disclosure and PII applications our experience is unparalleled, our leading case of R v H established the law in this area in the House of Lords in February 2004.

When faced with covert surveillance material there may be much in the way of observations or transcripts and telephone records which the Crown have not revealed because it does not support their case. Such material may however assist the defence case and it is now vital that a carefully prepared Defence Statement is drafted at an early stage setting out any reasons for fuller disclosure - as long as the material is not deemed sensitive or irrelevant the defence will get sight of the material. There are certain tactful and strategic actions which the Defence should take.

At Rahman Ravelli, our starting point when faced with applications for PII from the Crown is to demand why?. We will often ask to make representations to the court in advance of any private hearing the Crown may be granted with the judge to discuss what to disclose to the defence. This puts all on notice that the practice and principals established in the R v H case must be followed to the letter. Where appropriate we will argue for disclosure, or at least partial disclosure of the material the Crown wish to keep secret - these hearings can be vital to the defence and success may turn on the preparation of the defence case at the early stages.

The principles that underly all our case work preparation, plus our particular expertise in this field, mean that we can assemble for our clients the best possible team to tackle the issues arising from an arrest following a covert surveillance operation. (see Pro-active Defending)

Foreign Intercepts
Whilst it is ostensibly illegal to use intercept evidence in the UK (see the prohibition in RIPA), what is the position when law enforcement agencies try to use foreign intercepted material say from Holland or Spain?

» Read more

Drugs Trafficking Offences
The above issues typically arise in cases involving the large scale distribution, importation and /or supply of controlled drugs. Our experience of successfully defending cases of this type is unparalleled.

Inextricably linked to Drugs Trafficking cases are confiscation and assets forfeiture proceedings. See Assets Forfeiture.

Customs Cases
The issues will often arise in cases dealing with contraband cigarettes, alcohol and other products. See Serious Fraud and Corporate Defence also.

The issues also typically arise in the following cases:
Serious Robberies, Terrorism, etc.

Terrorism
Since the turn of the millennium, anti-terror legislation in the United Kingdom has been the subject of much controversy due to its wide scope and seeming incompatibility with sections of the European Convention on Human Rights (ECHR). To understand fully why such legislation has been passed by the Government, it is important to understand how and why the current law has developed. We have an in-depth knowledge and success history in defending terrorist cases.

» Read more

Download a Guide To The New Terrorism Legislation

For further advice:

Contact our Human Rights department.

Or speak to one of our specialists.

 

Covert Surveillance Defence Articles

  • 20/09/2012 Rahman Ravelli Highlighted in the Legal 500
    YORKSHIRE-BASED fraud and business crime solicitors Rahman Ravelli have again been highlighted in the world's most ...
  • 04/01/2012 Telephone Evidence by Aziz Rahman, Solicitor and Jonathan Lennon, Barrister
    Why is 'phone evidence' so prolific in prosecutions these days? It is a simple recognition that the explosion in t...
  • 01/12/2011 Foreign Intercepts by Aziz Rahman, Solicitor and Jonathan Lennon, Barrister
    It is well known that material gathered from intercepted phone calls cannot be evidence in a criminal trial in this...
  • 02/08/2011 Entrapment by Jonathan Lennon and Aziz Rahman
    Some readers of this article will know all about test-purchase operations where under-cover officers will ask suspe...
  • 02/05/2011 Guide to the New Terrorism Legislation - Rahman Ravelli Solicitors by Aziz Rahman, Solicitor
    Background to the Law Since the year 2000, anti-terror legislation in the United Kingdom has been the subject of mu...
  • 03/11/2010 Regulation of Investigatory Powers Act 2000 by Aziz Rahman, Solicitor and Jonathan Lennon, Barrister
    Last year it was reported in the press that the tax inspectors of H.M. Revenue and Customs are to be given new powe...
  • 04/09/2008 Challenging Surveillance Evidence by Aziz Rahman, Solicitor and Jonathan Lennon, Barrister
    A local authority recently admitted to spying on a family regarding a fraudulent school application. Many readers w...
  • 02/08/2008 Abuse of Process by Aziz Rahman, Solicitor and Jonathan Lennon, Barrister
    This short phrase 'abuse of process' will be well known to many of our readers. In this article we set out to expla...
  • 01/03/2008 Stop Bugging Us! by Aziz Rahman, Solicitor and Jonathan Lennon, Barrister
    The bugging of conversations between lawyers & their clients in prison The recent news that Sadiq Khan MP was b...
  • 04/06/2006 Police Surveillance Techniques and Your Human Rights by Aziz Rahman, Solicitor and Jonathan Lennon, Barrister
    It is a fact of life that the British way of policing is now heavily dependent on technology and intelligence. The ...
  • 02/05/2006 Informant Evidence by Aziz Rahman, Solicitor and Jonathan Lennon, Barrister
    What is an informer? A pedestrian who calls 999 after witnessing a crime is an 'informant' in that he or she is inf...
  • 04/03/2005 Secret Hearings by Aziz Rahman, Solicitor and Jonathan Lennon, Barrister
    The Criminal Procedure and Investigations Act 1996 Act introduced the current two-stage approach for disclosure. Fi...
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Rahman Ravelli Solicitors Yorkshire
Roma House,
59 Pellon Lane,
Halifax,
West Yorkshire,
HX1 5BE,
DX 16001 HX1,
United Kingdom.
Phone: +44-(0)1422 346666. Fax: +44 (0)1422 430526
Rapid Response Team 24 Hour Emergency Contact: 0800 5593500.

enquiries@rahmanravelli.co.uk

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Rahman Ravelli Solicitors London
1 Fetter Lane,
London,
Greater London,
EC4A 1BR,
United Kingdom.
Phone: +44-(0)203 4405 515. Rapid Response Team 24 Hour Emergency Contact: 0800 5593500.

enquiries@rahmanravelli.co.uk

» full contact details