Author: Nicola Sharp
23 October 2015
8 min read
There was a period of time after the Human Rights Act 1998 (“HRA”) came into force when there was a rash of challenges to the admissibility of covertly obtained evidence. There has since been more of a settled period as the law has bedded in. We, however, believe there is still plenty of room for pro-active defenders to challenge covert surveillance material in appropriate cases. As surveillance gradually becomes an almost everyday reality for us, so we needed to be ever more vigilant and demand that the Courts protect us from misuse of these powers.
Regulation of Investigatory Powers Act 2000
Since the HRA came into 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 guaranteed 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 with Strasbourg, especially in the 1980s and 1990s. The UK Government was forced to introduce legislation in an attempt to comply with the Convention which the UK had signed up to and is now enshrined in our law by the Human Rights Act. The Government knew it had to introduce legislation in order to make surveillance ‘in accordance with the law’ before the Human Rights Act came into effect in October 2000. The result was the Regulation of Investigatory Powers Act 2000 (RIPA). Under RIPA the different types of surveillance are labelled as either 'directed', 'intrusive' or 'covert human intelligence source (CHIS)'.
For each type of surveillance, the intrusion must be shown to be 'necessary', and that the invasion of privacy necessary will be the minimum possible – i.e. 'proportionate'. If properly authorised the fruits of this type of surveillance may become admissible in a criminal trial. The exception to this is telephone intercept material which generally cannot be used in evidence - the material is used for intelligence purposes only, as under s17 of RIPA there is a prohibition on even asking questions at trial about the use of telephone intercepts.
The Home Office has produced two Codes of Practice – the Covert Surveillance and Property Interference COP (i.e. for directed and intrusive surveillance) and the Covert Human Intelligence Sources COP (both December 2014). These set out the detailed procedural rules that must be followed to have each type of surveillance properly authorised.
Types of Surveillance Authorities
Directed Surveillance: this is covert but not intrusive. It is likely to reveal private information about a person. This is the most basic type of surveillance under the Act, in reality, it is 'tailing' someone, following them, photographing and videoing them. It requires only internal authorisation by a designated person (s28(3) of the Act) who believes that it is necessary and is proportionate to the aim sought to be achieved. Thus if it is a police force that is the authorising agency then a Superintendent will authorise in most cases; per RIPA (Directed Surveillance and CHIS) Order 2010/521, Schd 1.
Intrusive Surveillance: this is defined as covert surveillance carried out in relation to anything taking place on residential premises or in any private vehicle. Such surveillance must be authorised by an Officer of at least Superintendent rank. However, according to the Code of Practice, para 6.11, a police authorisation will not take effect until it has been approved by a Surveillance Commissioner (except in urgent cases) – the Commissioners are retired Judges appointed to the Office of Surveillance Commissioners. Surveillance Commissioners are independent overseers of the operation of the Act there to attempt to protect our society becoming a nation of suspects rather than citizens. The grounds required for the authorisation of intrusive surveillance are narrower than for directed surveillance.
Covert Human Intelligence Source: this is defined as a person who establishes or maintains a personal relationship with a person for the covert purpose of using the relationship with a person or covertly disclosing information obtained by the use of such a relationship or as a consequence of such a relationship. This clearly includes under-cover officers. The authorisations may be made by a limited list of senior persons and the grounds are identical to those for directed surveillance. There has been a recent change in the law of authorising a CHIS; RIPA (CHIS: Relevant Sources) Order 2013 (came into force 1/1/14). A 'relevant source' is a police officer and these new rules deal with long-term deployment of sources. Some undercover officers have to be in place for a very protracted period of time – e.g. for 'legend building'. These rules impose a tighter review process. It is these long term undercover officers that have caused so much embarrassment for the police in recent times given the callous behaviour of some of the officers concerned towards their 'targets' and the complete lack of respect for individuals and their privacy; see eg. the; e.g. 29 convictions quashed in environmental protesters Drax coal case.
Intercepts: Intercept warrants are authorised under s1 of RIPA. Under the Code of Practice, only a very small number of very senior officials are authorised to make applications for an intercept warrant. The warrants must be personally authorised by the Home Secretary, even if the urgent procedure is followed; see para 2.2 of Code of Practice. The level of intrusion is regarded as very high and so only the most serious cases attract this type of authorised intrusion. However, the material cannot be used in evidence.
What clients want to know from us is 'can covertly obtained material be excluded'? The answer, in principle, is 'yes'. Of course, it all depends on the circumstances of the case and proper challenges are more and more difficult to raise now that the authorities are completely used to RIPA and how it works. What should, first of all, be considered is the reason for the application for covert surveillance in the first place, and then consider whether there is any force in an argument that the material should be excluded. This will inevitably involve human rights arguments and, very likely, Public Interest Immunity applications too.
Article 8: As mentioned above it is important for the police to ensure that the intrusion is properly authorised and the proper procedures in the Codes of Practice have been adhered to. If not then it is arguable that the surveillance is not “in accordance with law” as required under Article 8(2) of the European Convention. If not properly authorised the intrusion will have been a breach to the right of privacy and thereby unlawful. This opens up the case for arguing that evidence should be excluded or even, if there is bad faith on the part of the officers, for the prosecution to be stopped as an abuse of process, see R v Grant  EWCA Crim 1089.
It used to be a fairly straightforward task of asking the prosecution for copies of the written RIPA applications and authorisations which would then be sent to the defence team with the highly sensitive information blacked out – then at least the defence could start to consider whether the operation was 'proportionate' or not and prepare for a possible exclusion argument. However, following the cases of R v G.S. and Ors  EWCA 887, unrep. 22/4/05, it will now be more difficult for the defence to demand the applications and authorisation forms. The Court of Appeal has made it clear that the Act provides all the relevant lawfulness safeguards and if there is a challenge all the Crown have to do is produce the relevant authorisations to the Judge only for his inspection. In any event, the case-law and modern police practice is helping to ensure that those lawfulness challenges will only be successful in a very limited number of cases, see e.g.; R v Button  EWCA Crim 516, 4/3/05.
Even if a certain police operation was found to be unlawful and violated the suspect's Article 8 rights, the next question is; 'so what?' What must be remembered is that a breach of Article 8 does not mean that the material must be excluded as a fair trial could take place under Article 6. It all depends on the circumstances but the case law tends to be leaning towards a requirement of bad faith before an Article 8 violation will have an impact on a criminal trial. Where, for example, police officers have deliberately placed someone in a police cell in order to record the comments made by the cell-mate then that may lead to a violation that is sufficient for the Court to intervene; see R v Allan  Crim LR 716 or if communications between a lawyer and a prison are monitored, per R v Grant  2 Cr. App. R 28, CA. But, in R v Plunkett  1 WLR 3121 the police bugged a police van transporting two suspects to the police station for interviews. Each gave no comment interviews at the police station on legal advice. But incriminating remarks were made in private discussions between the suspects in the police van. The Court of Appeal held that this was not a violation of the Code of Practice and the evidence was therefore admissible. This was based at least partly on the fact that the surveillance was not in the prison cell – i.e. a place where suspects slept - which could be regarded as 'residential' and therefore 'intrusive surveillance' requiring a higher grade of authorisation. The police van did not fall into that category.
The Grant case was expressly disapproved by the Privy Council in Curtis Warren v Att. General for Jersey  2 ALL ER 513, PC. In that case, the police had placed an audio probe in the defendants hire car which would be driven through a number of overseas European countries. The police knew that permission from those countries had been refused for the use of such devices but went ahead anyway. The consequent abuse of process application failed, a decision upheld on appeal. However, that case was an abuse of process case, rather than an exclusion of evidence case. There is still scope to argue for exclusion of unlawfully obtained evidence because the right to a fair trial under Article 6 imports a certain standard on the behaviour of the State including police, prosecutors and Courts.
RIPA has been with us for some time now. There are some 43 categories of public authority able to watch over us in some way or other under RIPA. Unarguably the Courts have given the police and the prosecution much leeway in the authorisation process but still we can rely on the authorities to go to excess from time to time and breach the rules in such a fundamental way that people can literally get off a murder charge; see R v Sutherland & Ors (2002) Jan 29, Nottingham Crown Court - when the police recorded conversations between suspects and their legal advisors.
Edward Snowden, the ex-US National Security Agency analyst, currently in Russia, revealed mass electronic surveillance on a staggering scale in programmes called PRISM and TEMPORA – these are American programmes run by the US National Security Agency. The charity Liberty (and others) challenged the Government about the legality of these programmes in the Investigatory Powers Tribunal. The Tribunal ruled in February 2015 that the British intelligence services had acted unlawfully in accessing millions of people’s personal communications collected by the NSA in the period before December 2014, because the rules governing the UK’s access to the NSA programmes were then secret – until revealed by Snowden. In June this year Amnesty won another battle at the IPT when it ruled against blanket surveillance finding that GCHQ had unlawfully intercepted and accessed the private communications of Amnesty.
State surveillance of individuals is on the rise and pro-active defenders should be doing all they can to probe and test the lawfulness of surveillance evidence in covert surveillance cases.
Jonathan Lennon is a Barrister specialising in serious and complex criminal defence cases. He is based at 33 Chancery Lane Chambers in London. He has extensive experience in all aspects of financial and serious crime and the Proceeds of Crime Act 2002. He is ranked by both Legal 500 Chambers & Ptnrs & is recognised in C&P’s specialist POCA and Financial Crime sections; 'he is phenomenal and his work rate is astonishing' (2015).
Aziz Rahman is a Solicitor- Advocate and Partner at the leading Criminal Defence firm Rahman Ravelli Solicitors, specialising in Human Rights, Financial Crime and Large Scale Conspiracies/Serious crime. Rahman Ravelli are members of the Specialist Fraud Panel and have been ranked by Legal 500 as an 'exceptional' firm with Aziz Rahman being described as 'top class’'. The firm is also ranked in Chambers & Partners. Rahman Ravelli are a Top Tier and Band 1 firm.
Nicola is known for her fraud, civil recovery, arbitration and business crime expertise, her experience of leading the largest financial disputes and multinational investigations and her skills in devising preventative measures and conducting internal investigations for corporates.