Not Under The Radar 7 April 2014 5 years ago Despite its often secretive nature, the issue of covert surveillance always seems to be the subject of attention. This recently led the Scottish government to reassess the role in society of such surveillance. Rahman Ravelli has just published an informative guide to people’s rights when it comes to surveillance. Here, we look at some aspects of the guide. We are all under surveillance. Only some of us may not know it. The issue of surveillance has been a sensitive one for decades, with the need for privacy and civil rights being balanced uneasily alongside the authorities’ wish to prevent, or at least detect and prosecute, crime. In the UK, there are an estimated four million CCTV systems in operation; making it hard for even the most publicity-shy member of society to avoid being caught on camera. This year, the Scottish government has been seeking views on a revised Code of Practice made under the Regulation of Investigatory Powers (Scotland) Act 2000 (RIP(S)A). This code deals specifically with covert surveillance. It has been drafted to reflect changes both to minor issues – such as the name changes of some organisations in the original Act – and major factors, such as the amalgamation of Scotland’s eight police forces and the Scottish Crime and Drug Enforcement Agency. RIP(S)A gave designated public authorities a regulatory framework within which they could lawfully carry out covert surveillance. The latest Code of Practice is an attempt to reflect the changes we have just mentioned. But it is also part of an ongoing effort to make sure any such surveillance does not infringe on individual’s human rights, specifically under Article 8 of the European Convention on Human Rights (ECHR); the right to privacy. The Regulation of Investigatory Powers Act 2000 – like its Scottish equivalent RIP(S)A – grants police powers regarding the use of informants, covert surveillance, undercover officers and material that demands expertise regarding disclosure and public interest immunity (PII). In many large cases, the use of “bugs’’ is commonplace, whether they be traditional listening devices, tracking gadgets or sophisticated software to locate a person via their mobile phone or eavesdrop on their computers. There is also, of course, the good, old-fashioned practice of following someone. For many years, surveillance was an area that went largely untouched by the law. There was the 1985 Interception of Communications Act, a 1984 Home Office guidance document on police operations and then the 1997 Police Act; which finally put covert surveillance on a proper statutory basis. RIPA was a more comprehensive Act and yet both it and the Police Act have to be complied with when placing a bug – RIPA as regards gaining authority to use the bug and the Police Act for gaining authority to enter premises to place the bug. RIPA is the Act that divides covert surveillance into the categories of directed surveillance, intrusive surveillance and covert human intelligence sources. All three need some form of official authorisation. Directed surveillance involves the tailing and filming of someone, intrusive surveillance involves surveillance in a person’s property – and requires the authority of a Chief Constable or the Home Secretary – and covert human intelligence sources (CHIS) involves a person (maybe an undercover officer or an informant) establishing a relationship with a suspect to obtain information. RIPA also provides the legal framework for phone and postal intercepts; neither of which are currently admissible in evidence. Clients are often understandably keen to know what material obtained by covert surveillance can be used as evidence. Human rights and public interest immunity arguments can be used when it comes to seeking to prevent such material being used in court. Each type of surveillance has its own Code of Practice, which has to be observed. The surveillance has to be properly authorised under Article 8 (2) of the ECHR; which states that there should be no interference on a person’s right to privacy unless this has to be compromised due to “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.’’ But a breach of Article 8 does not mean the material is automatically excluded as evidence. For this reason, a defence team could use Article 6 of ECHR – that using such material would breach a client’s right to a fair trial – as a much more forceful weapon than Article 8. Alternatively, challenging the prosecution to justify the length of time the surveillance was carried out and questioning whether such surveillance infringed upon a person’s right to legal professional privilege may be more viable routes of attack. Similarly, the use of undercover officers and the issue of whether they overstepped the mark is not only a major issue in the news at the moment – it also offers a defence team the opportunity to claim abuse of process following appropriate investigation. The use of CHIS is an area where prosecutors can be under most pressure, with questions often needed to be asked about an informant’s exact relationship with the police and their reason for taking part in an undercover operation. In such cases, the issue of entrapment can be raised as well as challenges to the motivation and integrity of such informants. By pushing for full disclosure of all available materials, a defence team can highlight areas where police may have failed to follow up a related line of enquiry, disclose relevant material to the defence or pay the disclosure schedule proper attention. Any defence team is looking to make the Crown prove the lawfulness of their actions and then – if the Crown fails to do this – investigate whether the proper remedy is endeavouring to have the evidence excluded. Both the use of covert surveillance techniques and the range of techniques can only increase in the future. This poses greater challenges to defence teams, who have to be fully aware of the full range of tactics available to them. Defence in covert surveillance cases has to evolve at least as quickly as the law and the technology that enables the authorities to carry it out with such ease.