HOUSE
OF COMMONS STANDING COMMITTEE STAGE
March 2000
1.1 Part
II provides the framework for authorising three forms of covert surveillance:
·
‘directed
surveillance’
·
‘intrusive
surveillance’
·
the use and
conduct of ‘covert human intelligence sources’ (informers, agents and
undercover officers)
1.2
‘Directed surveillance’
and the use of ‘covert human intelligence sources’ require the lesser control
of self-authorisation from a designated person within the agency undertaking
the action;[1] whereas,
‘intrusive surveillance’ requires approval from a High Court judge acting as a
Commissioner before it can take effect.
1.3
On a general
point, the Explanatory Memorandum makes it clear that Part II (in common with
other parts of the Bill) do not impose a requirement on public authorities to
seek or obtain an authorisation for surveillance. Unlike Part I where there is
a criminal offence and a (limited) civil tort of unlawful interception, Part II
creates no such penalties, other than the action may be unlawful under section
6 of the Human Rights Act 1998 if it is not so authorised. JUSTICE believes that this is an insufficient safeguard in an area of
activity where the risk of abuse is high but the likelihood of it being
uncovered is very low. The Bill should
impose a duty to obtain an authorisation for surveillance under Part II, with
appropriate criminal and civil penalties for failing to do so.
2.1
Directed
surveillance’ is covert surveillance of individuals during a specific but non-intrusive investigation’ (our
emphasis). Surveillance is covert where it is carried out in such a way to
ensure that those targeted are unaware that it is taking place (cl.25(8)). ‘Surveillance’ is defined as including any
monitoring, observing and listening to persons, their movements, conversations
or other activities or communications. It also includes any recording of such
activity and surveillance by or with assistance of a device (cl.45(2).
2.2
On the basis of these definitions, it is
difficult to see what activities fall within
‘directed surveillance’, bearing in mind the important distinction that
such conduct has to remain non-intrusive
(cl.25(2)). It may be argued that monitoring a targeted person’s activities in
a public place with the assistance of a video camera is non-intrusive and
therefore ‘directed surveillance’. In practice, the surveillance activities are
likely to be more complicated. The question of intrusion by surveillance (and
the consequent triggering of Art 8 rights) depends on a number of factors: its
duration, location, intensity, frequency and the use of a technical
device. The longer surveillance
continues, the more private the place where the person is observed, the greater
the intensity or frequency of the surveillance activities, and the more options
offered by the use of technical devices, the greater the chance that it will
amount to intrusive surveillance.
2.3
For example, it
is well-established in ECHR cases that an intrusion into a person’s privacy
extends beyond the intimacy of the home. For example, in Niemietz v Germany the
ECtHR held that a person is entitled to a degree of privacy in professional and
business relationships at the workplace. In doing so, it made it clear
that ‘respect for private life must also comprise to a certain degree the
right to establish and develop relationships with other human beings.’ In
the same way, the US Supreme Court held as long ago as 1967 that privacy rights
‘protect people, not places’.
2.4
JUSTICE believes that all covert surveillance
(as defined in the Bill) has the potential for intrusion which is why it has to
be regulated for compliance with Art 8 ECHR. Therefore, the distinction drawn
in the Bill between conduct which is ‘not intrusive’ (i.e. ‘directed
surveillance’) and that which is intrusive (i.e. ‘intrusive surveillance’) is
artificial and open to challenge. And,
as we detail below, it also creates some particular anomalies. However, we accept (not least for practical purposes) that the Bill
needs to draw a distinction between activities that are less intrusive and
those that have the potential to be highly intrusive.
2.5
One possibility
is to draw this distinction in terms of the location of the surveillance. For
example, the Data Protection Commissioner has recommended that, in any event,
the definition of ‘intrusive surveillance’ should be widened to include any
premises or location where the individual has a legitimate expectation of
privacy. The Irish Law Reform Commission made a similar recommendation in a
recent report on privacy and surveillance.
And this is also reflected in the laws of other countries: for example,
the Canadian Criminal Code requires judicial authorisation of video
surveillance when the person targeted might reasonably have an expectation of
privacy. Examples of such places – a doctor’s surgery, an MP’s private office,
a restaurant and a public place – would need to be fully illustrated in a code
of practice.
3.2
For example, under cl.25(5) a surveillance
device used from outside residential premises or a private vehicle that does
not consistently provide the same quality and detail ‘as might be expected’
from a device actually present on the premises is not to be considered as
intrusive. Thus using a remote listening device located away from a house or a
long lens photographic equipment will fall within either ‘directed’ or
‘intrusive surveillance’, depending on its recording qualities.
3.3
JUSTICE believes
that if the intention is to observe, listen to or capture images of a person in
residential premises (or anywhere where there is an expectation of privacy)
through the use of a technical device, it must be assumed that the action is
likely to be intrusive, irrespective of the quality of material actually
obtained. As the Data Protection Commissioner has said, the fact that a picture
from a long lens camera might not be quite as clear as from a camera placed in
the room does not necessarily make the infringement of privacy any less.[2] And, from a practical standpoint, how is the
quality of the information to be anticipated in advance, so as to know which
procedures to follow? Following the
wrong procedures risks the conduct being unlawful and the material inadmissible
as evidence. The exemption in clause
25(5) should be deleted from the Bill.
3.4
Another example
is the way in which the Bill deals with interceptions of a communication where
one party to the communication consents to the intercept. As explained at
paras. 3.6 – 3.10 in our human rights audit of Part I of the Bill, this
practice is known as ‘participant monitoring’ and is particularly relevant in
cases where undercover police or informers are used to extract evidence from
suspects. Under the Interception of
Communications Act 1985 such a practice was exempt from the warrant
procedures and safeguards.
3.5
Under this Bill,
such conduct is again to be exempt from the Part I controls and the controls
required by ‘intrusive surveillance’ in Part II (Cl.25(4)(b) and 45(4)).
Although not expressly mentioned in the Bill itself, the Explanatory Memorandum
says that it is intended that such conduct will come within the lesser controls
of ‘directed surveillance’ (see para.178) – that is, it will be treated as
surveillance conduct which is covert but not intrusive.
3.6
JUSTICE believes that this represents a clear
breach of the requirements of Art 8 ECHR. The conduct remains highly intrusive
of the privacy rights of the non-consenting party who is being targeted. Under
Art 8, this person is entitled to the same level of safeguards as any other
person whose private communication is being intercepted by a state agency.
3.7
As we said in
our Part I briefing, in the recent case of Lambert v France (1999), the
ECtHR considered a judgment of the French Court of Cassation which had denied
legal remedy to a person whose telephone calls had been intercepted on a
friend’s line. It held that, as a matter of principle, Art 8 protects people,
not telephone lines. This is in line with the reasoning in the leading Canadian
case of R v Duarte (1990) when the Supreme Court held that a
‘participant monitoring’ exemption directly contradicted the principle that it
is the person whose privacy is being infringed who should be afforded
safeguards. The exemptions in clauses 25(4)(b) and 45(4) should be deleted
from the Bill.
3.8
Interference
with Art 8 privacy rights is only lawful if it is undertaken on the grounds falling within Art 8(2) (see Annex
I). It is unclear therefore why under cl. 27(3)(f) ‘directed surveillance’ may
be authorised for the purpose of assessment and collection of a tax, duty, levy
etc. Either the collection of tax is a legitimate purpose that falls within one
of the other grounds under cl.27 or it is not an aim that may be pursued under
Art 8. This is the same for cl.28(3)(f)
in relation to the use of covert human intelligence sources. Clauses 27(3)(f) and 28(3)(f) should be
deleted from the Bill.
3.9
Many of the
detailed controls - particularly in Part II of the Bill - are to be set out in
orders and codes of practice. As mentioned in our briefing on Part I, this
poses problems in assuming that the Bill will operate in a way that is human
rights compliant. For example, under cl.27(3)(g) the Secretary of State has
apparently unfettered power to add to the permissible grounds on which
‘directed surveillance’ may be authorised. This is the same for the use of
covert human intelligence sources under cl.28(3)(g). Similarly, the Home
Secretary has an unfettered power to add to the list of agencies who may
authorise ‘directed surveillance’ or the use of covert human intelligence
sources under cl. 29(4)(h). JUSTICE
believes that the Home Secretary should be asked to justify the inclusion of
these wide provisions. In particular, he should be asked to specify the nature
of any other ‘purpose’ that could be included in the future and likewise
identify which agencies might be added. In the absence of a satisfactory
justification that ensures compliance with Art 8, the clauses should be deleted
from the Bill.
3.10
Similarly, the
Home Secretary should be asked to identify the ‘designated persons’ who are to
authorise ‘directed surveillance’ and the use of covert human intelligence
sources.
Intrusive surveillance
4.1
Intrusive
surveillance’ is defined as covert surveillance in relation to anything taking
place on residential premises or a private vehicle. It may be carried out either
by a person or device inside residential premises or a private vehicle or by a
device placed outside. This is intended to cover the gaps in Part III of the
Police Act 1997 which only applies to devices whose installation involves
trespass to property, criminal damage or interference with wireless telegraphy.
It means that stand-off devices such as long-distance microphones and
laser-beam equipment fall outside the controls of Part III. However, it needs to be clarified whether
another loop hole in Part III which allows the police to place a bug with the
consent of the owner of property still remains. This means, for example, that
police and prison cells may be bugged without having to go through any of the
statutory controls for authorisation.[3]
4.2
JUSTICE believes
it would be preferable to repeal Part III of the Police Act 1997 Act and
provide for a single, comprehensive regime for all forms of intrusive
surveillance within this Bill. Instead, a complex regime has been created which
allows a single authorisation to cover both an application under this Bill and
under Part III of the Police Act, although the different provisions of each are
still to apply (cl.31(5)). Further, the authorisation procedure differs
according to the agency making the application: the police[4]
and customs are to apply to a Commissioner in the same way as under Part III of
the Police Act; the intelligence services, Ministry of Defence and Armed Forces
must apply to the Secretary of State. An application made by the intelligence
services may be combined with an application for a warrant under the
Intelligence Services Act 1994.
4.3
A major point about ‘intrusive surveillance’ is
that it is too narrowly defined in the Bill. It fails to acknowledge that the
ECtHR has made it clear that Art 8 privacy rights can be engaged outside
residential premises and private vehicles (see para. 2.3 above). As the Data Protection Commissioner has
recommended, the definition in cl.25(3) needs to be widened to include any
premises or location where the individual has a legitimate expectation of
privacy.
4.4
In relation to
the authorisation procedures involving the Surveillance Commissioner, JUSTICE
has the following comments:
·
In an age of new
technology, we question whether it is necessary to treat
urgent applications differently (cl.33(3)(b)) thereby allowing the
conduct to go ahead without prior approval of the Commissioner. As this is also
provided for in Part III of the Police Act, the Home Office should be asked to
provide details of how often it has been relied upon since that Act came into
force. The experience in other countries such as Australia is that authorising
judges are able to respond quickly and there is no evidence o suggest that a
requirement for prior approval in all cases has an adverse effect on police
operations.
·
The Commissioner should have the power to
attach specific conditions to a warrant. These may be restrictions or limitations on who, how, when, where or
what kind of surveillance may be undertaken. This is common practice in other
countries. The annual figures published under the Canadian Criminal Code show
that conditions are attached in the majority of authorisations for electronic
surveillance: in 1998 the figure was 98%.
·
Strict rules covering legal or otherwise privileged
material should be included on the face of the legislation and not left to a
code of practice. This is the
approach taken under sections 98 -100 of Part III of the Police Act and should
therefore be followed in this Bill. The ECtHR in Kopp v Switzerland
(1999) said that the law must make it clear how professional legal privilege
was to be protected in practice.
·
The Commissioner
should be required, for example, to
quash an authorisation if s/he is satisfied at any time that there are no
reasonable grounds on which it should continue. Under cl. 35 the Commissioner
has a discretion whether to do so in relation to this and other matters. The word 'may’ in sub-clauses (2), (3),
(4) and (5) should be replaced by ‘shall’.
·
Before any
renewal of an authorisation, the Commissioner should be satisfied that a review
has been carried out on the surveillance already undertaken and take account of
its results. This is a requirement for the renewal of a cover human
intelligence source authorisation under cl.41(6) and should apply to all forms
of surveillance under Part II.
4.5
In relation to
the authorisation procedures involving the Secretary of State, JUSTICE has the
following comments:
·
As the Security
Service (MI5) has the power to carry out investigative policing activities
under its new remit of being tasked to investigate serious crime, there are
strong arguments that these powers should be exercised under the same
procedures as apply to the police.
Otherwise there are obvious dangers in two agencies having different
powers and operating to different procedures when tackling the same threat of
serious crime.
·
The Secretary of
State has an unfettered power to extend the ‘public authorities’ who may carry
out ‘intrusive surveillance’ under cl.39(1)(d). For the same reasons mentioned above, the Home Secretary should be
asked to justify this provision and identify the authorities that may be
included in the future.
·
Again, there are
no strict rules covering legal and other privileged material (see above)
·
A warrant for
‘intrusive surveillance’ granted to the intelligence services has a duration of
six months (cl.42(4) as compared to three months for police and other law
enforcement authorisations (cl.41(3)(c). The
Home Secretary should be asked to justify this difference.
4.6
The wide powers given to the Secretary of State
in cl.44 to modify the provisions of Part II are unacceptable. In particular, the power to order that
‘intrusive surveillance’ activities be treated as ‘directed surveillance’ and
vice versa runs the serious risk of the
Secretary of State being able to legally ‘allocate’ surveillance conduct in a
way that is incompatible with human rights. It also violates the principle
under Art 8 that any interference ‘prescribed by law’ must be clear and
accessible and certain in its scope as to the circumstances in which an
interference may be authorised. This is in recognition of the very real dangers
inherent in covert surveillance activities.
JUSTICE believes that cl.44 should either be deleted or, alternatively,
severely restricted in what it permits.
4.7
JUSTICE
particularly welcomes the provisions placing the use and conduct of informers
and undercover officers under statutory control. This need for operational
control over such persons has recently been endorsed by the ECtHR in the Teixeira
de Castro v Portugal case in relation to a ‘buy and bust’ undercover drugs
operation.
4.8
However, we also appreciate the difficulties
in providing a statutory framework that has to cover a wide range of
activities. At one end, an informer may be a person who merely gives
information to the police; at the other extreme, he or she may be actively
engaged in the commission of an offence. And in terms of undercover policing,
there are fine gradations between involvement, incitement and entrapment.
However, the role played by the informer or undercover officer will determine
the degree of intrusion and therefore the level of safeguards required.
4.9
JUSTICE
believes that in order to comply with the requirements of Art 8 ECHR the Bill
needs to draw a distinction between different categories of informers and
undercover police work. Currently under cl.25(7) of the Bill, a cover human
intelligence source is defined in relatively benign terms: essentially it is a
person (informer or police officer) who maintains a covert relationship with a
suspected criminal in order to obtain and pass-on information. It does not
specifically recognise the conduct of participating informers who are persons
‘engaged in a course of action which, without authority, could lead or could
have led to his/her arrest and prosecution’[5]
or undercover officers who actively set up a ‘buy and bust’ or ‘sting’
operation.
4.10
In the recent
case of Kopp v Switzerland (1998), the ECtHR severely criticised the
practice of internal, executive authorisation, without supervision by an
independent judge, in relation to surveillance activities. It is therefore
questionable whether self-authorisation within an agency would be considered a
sufficient safeguard in relation to the activities of participating informers
and undercover officers in serious crime cases.[6]
It could also be argued that the case of Teixeira de Castro v
Portugal places additional weight on the need for independent authorisation
and supervision in undercover operations if the exercise is not to breach ECHR
rights. JUSTICE believes that it may
therefore be necessary to draw a distinction whereby the use of participating
informers and undercover officers in serious crime cases be made subject to
prior authorisation by a judge. This
should apply equally to informers run by the police and agents run by the
intelligence services, for example.
4.11
In any event, as
the Bill is presently drafted, it creates certain anomalies in relation to activities
that are similarly intrusive. For instance, under cl.45(3)(a) an informer who
is ‘wired-up’ to record a conversation in a suspect’s home is only to be
subject to the lesser, self-authorisation procedures governing covert human
intelligence sources. However, if the recording had been obtained by placing a
bug on or outside the suspect’s home, prior approval from a Commissioner would
have been required under either Part III of the Police Act 1997 or under Part
II of this Bill. JUSTICE believes that the authorisation procedures should properly
reflect the nature of the operation and its intrusiveness and, as far as
possible, be consistent in relation to activities of a similar intrusive
nature.
4.12
The duration of
an authorisation to use a covert human intelligence source is twelve months,
with a similar period for renewal (cl.41(3)(b). JUSTICE believes that this is
too long, especially in the case of participating informers and undercover
operations.
[1] The agencies are the police, NCIS, NCS, any of the intelligence services, the Ministry of Defence, any of the armed forces, Customs and Excise. These may be added to by order of the Secretary of State.
[2] Response of the Data Protection Commissioner to the Government’s Regulation of Investigatory Powers Bill, March 2000.
[3] This is discussed in detail at p.18 in the JUSTICE report: Under
Surveillance
[4] Now to include the British Transport Police
[5] ACPO Code of Practice, 1999.