Surveillance Evidence. This paper will attempt to assess the current law and its merits and conclude with some effective reform recommendations to how the law might be improved in this area

by aoneill (student)

Generally it is accepted that the evidence obtained from the interception of telephone calls is inadmissible as evidence in criminal proceedings in the UK. There are however, a few exceptions to this rule and this paper is going to assess in which circumstances it is admissible. There is an overwhelming amount of controversy over this issue as many believe the use of intercept material as evidence would be more beneficial to our legal system and the conviction rates in our country. However it is also widely recognised that ‘the tasks of recognising and regulating the impetus towards state surveillance in the information age is extremely challenging,’ particularly in relation to the vast amount of technological advances made over the past decade, it has proved difficult to keep up to date with change. This paper will attempt to assess the current law and its merits and conclude with some effective reform recommendations to how the law might be improved in this area, i.e., how RIPA (Regulation of Investigatory Powers Act 2000) may be improved.

Background on Interception of Communications

In order to understand the current legal position in regards to the interception of telephone calls and the admissibility of intercept material as evidence in UK courts, it is important to recognise how the UK got to the position it is currently in. Prior to 1985, there was no requirement to follow a particular legal procedure when authorising the tapping of telephones or the intercepting of mail. The tapping of telephone was neither a civil wrong, nor a criminal offence; “The conditions for issuing warrants for interception of postal or telephonic communications were laid down in administrative rules which had no legal force.” It was then the decision of the European Court of Human Rights in the infamous case of Malone v UK which triggered the introduction of the Interception of Communications Act 1985. During this case the Vice-Chancellor observed the ECHR decision in Klass v FRG and recognised that telephone tapping was “a subject crying out for legislation.” The court held that the UK did not meet the requirement of being ‘in accordance with the law’ under Article 8 of the ECHR and this case subsequently brought in the first piece of statutory footing for interception of communications in the UK.

This seen the introduction of Interception of Communications Act 1985 (IOCA), however it was found that the scope of the Act was inadequate, as it only covered public telephone communications. There were no provisions for private communications, which was highlighted by the case of R v Effik were the evidence was admissible on basis ‘that a cordless telephone did not form part of the public telecommunications system’ and therefore wasn’t covered by IOCA. It was then the 1997 case of Halford v UK which brought about change in the law. A Government Consultation paper in June 1997 put forward a proposal for ‘a single framework which deals with all interception of communications in the UK, regardless of the means of communications, how it is licensed or at which point on the route of communications it is intercepted.’ This then saw the introduction of the Regulation of Investigatory Powers Act 2000, brought into force in the advent of the Human Rights Act 1998.

One of the fundamental reasons for the enactment of RIPA was so that the UK could be seen to be in line with the European Convention of Human Rights (particularly Articles 6 & 8) and the Human Rights Act 1998. This is often seen as a negative thing from critics, the UK wasn’t proactively trying to regulate interception of communications, but the ECHR pushed them into doing so, in order to be ‘in accordance with the law.’ The enactment of both IOCA and RIPA was; “a measure in which the minimum action possible was grudgingly taken to comply with the letter of rulings under international agreements.”

Assessing the Current Legal Position on Admissibility

Currently, the interception of communications is regulated by the Regulation of Investigatory Powers Act 2000 (RIPA), with consideration also being made to the Human Rights Act 1998, Articles 6 & 8 of the European Convention of Human Rights and The Data Protection Act 1998.

The Regulation of Investigatory Powers Act or RIPA ‘provides regulation of, for example, the interception of communications, the use of covert surveillance and decryption of documents, including the disclosure of an encryption key in order to have access to protected material. Authority must be obtained for carrying out of any of this; and the granting of any authorisation under the Act must take into account ‘necessity’ and ‘proportionality’. Any surveillance which is performed other than under this Act, or without some other statutory authority, is unlawful.’ In other words, for interception of communication to be seen to be ‘in accordance with the law’ it must be both ‘necessary’ and ‘proportionate.’ This is often measured by the Secretary of the State, who authorises warrants for specified intelligence and law enforcement agencies to intercept communications. A warrant is often given; ‘in the interests of national security, for the purpose of preventing or detecting serious crime, for the purpose of safeguarding the economic well-being of the United Kingdom.’ There is criticism that this method does not offer sufficient protection against abuse and in Klass v Germany the ECHR stated; “in a field where abuse is potentially so easy in individual cases and could have such harmful consequences for democratic society as a whole, it is in principle desirable to entrust supervisory control to a judge.” Instead of complete responsibility laid onto one person, in which case the pressure would be expediential, Liberty argued that judicial authorisation would guarantee more consideration for each request for interception warrants and would be a reform for RIPA worth considering.For example, in 2004 the Home Secretary issued 1,849 warrants and the report published by JUSTICE explains how this is higher than the number of judicial intercept warrants issued for the whole of the United States.

Although it is said that the interception of communications or the use of evidence from this would subsequently affect our personal privacy which is protected by Article 8 of the ECHR, this does not mean that interception or the use of material from interception of communications should not be used at all, Liberty stated ‘the right to privacy is not absolute’.

This is a preview of the whole essay

It is sections 17 and 18 of RIPA which specifically relate to the use of intercepted telecommunications evidence in court proceedings. These sections of RIPA state that the use of intercepted evidence is not allowed, however when we look at case law there are several circumstances where evidence has been admissible, these are often a result of the incoherency and illogical nature of the provisions set out by RIPA. For example, in section 17 (4) its states: “In this section “intercepted communication” means any communication intercepted in the course of its transmission by means of a postal service or telecommunication system.” The words in the ‘course of transmission are significant. In R v Hardy the court held the evidence of a tape was admissible in court and not a breach of articles 6 or 8, as it was not seen to be an interception of communications ‘in the course of transmission’. The courts came to a similar outcome in R v E.These are examples of were even though the law is set out in RIPA, it is not completely in accordance with this.

In regards to the words ‘in the course of transmission’ it’s beneficial to mention the case of R v McDonald also, in this case the court held that using an earpiece to record a conversation, was not classed as an interception, bizarrely this was based on the 22 millisecond delay in transmission from the earplug to the phone. This is where the lack of clarity of the provisions of RIPA was beneficial to the prosecution. Similarly in R v Allsopp and Others, the court held it was not an interception as only one side of a conversation was picked up, another loophole in the law. As previously mentioned, the case of R v Effik highlighted the idea of private lines and the lack of legislation to allow interception of private lines, this is now not the case as in places of business or institution, those with authority can intercept phone calls made within their lines.

Ormerod and Mc Kay recognise the incoherency of RIPA in another, basic aspect in that “there is something inherently incoherent and illogical in a scheme which seeks to authorise an activity (ss.1-9), recognises that that activity must lead to material which will be relevant at trial (s.18), and yet seeks to suppress that material and even the fact of its existence (s.17).” There is a significant conflict of interests here, it is difficult to understand why provisions would be set in place for the interception of communications to be allowed, with the knowledge that information would be gathered from this interception and yet it is inadmissible in court. The logic behind this principle is puzzling.

It is also said that only material intercepted under a UK interception warrant is affected by this bar. It does not apply for example to material intercepted in a foreign country under that country’s law; to a telephone conversation recorded with the consent of one of the participants; or to a telephone conversation recorded by a hidden microphone not connected to the telephone. In all of these cases the material may be adduced as evidence, and is subject to the same disclosure rules as any other relevant material. So material which has been intercepted from another country on a person in the UK is admissible in court however, if someone in the UK intercepts communications from another person in the UK, it is inadmissible under RIPA, the conflicting nature of RIPA makes it impossible to follow, it seems to be used to benefit the prosecution more so than being ‘in accordance with the law.’

Sections 15 to 18 of RIPA address the scope of the issue around the use of evidence from intercepted communication. Another illogical aspect of RIPA is the conflict of provisions within the Act. In section 15 (3) of RIPA there is a requirement that all copies of intercept material and related communications are to be destroyed as soon as they are no longer required to be retained for any of the authorised purposes. This may cause substantial difficulties in trying to use evidence for a significant purpose in court proceedings, as it may have to be destroyed before the case even makes it to court. And under s19 of RIPA failure to comply with the requirements of s.15 or with the restrictions on handling intercept material in relation to copying, disclosing and destroying may constitute a criminal offence. These provisions under RIPA are highly illogical and puzzling, and the conflicting natures of these provisions were reflected in the unsatisfactory decision in Preston v UK in regards to the destruction of interception evidence.

It is understandable in cases where there is a need to maintain secrecy of interception evidence however these cases should be limited to secret services cases and not be used in criminal proceedings were the defendant is heavily reliant on the evidence itself. There are issues with conflict of Article 6; Right to a Fair Trial when it comes to disclosure of intercept evidence in court proceedings, however, the Justice report highlights a more significant point, in that only the UK and Hong Kong maintains a ban on such evidence being used. It states; “the UK is the only country in the common law world that prohibits completely the use of intercepted communications as evidence in criminal proceedings.” So it is not impossible for the UK to be on par with the rest of the world on lifting the ban of intercept evidence.

It has been suggested that lifting the ban on intercept evidence might damage the relationships between police and intelligence agencies, however LIBERTY condemns these suggestions and believes “removing the bar would remove some of the inter-agency tensions that have been created by the current legal position which must frequently frustrate the desires of the police and the CPS to prosecute suspected terrorist and criminals.”

In 2006 the Government explained that it is “committed to find, if possible, a legal model that would provide the necessary safeguards to allow intercept to be used as evidence” and yet no developments have been made since. This paper has assessed some of the provisions set out by RIPA in relation to the use of intercept evidence in UK legal proceedings and have found RIPA to fall short in many aspects. The current law states that under s.17 intercept evidence is inadmissible in legal proceedings however the gaps in the law in RIPA provide several opportunities for evidence to be taken into consideration. Future recommendations on RIPA have been advanced by many, for example, recommendations set forth in the 2008 Chilcot review and the 2003 Newton Committee also concluded that lifting the ban would be “one way of making it possible to prosecute in more cases.” In Butterfield J.'s acknowledgement, in his Review of Customs and Excise policies following the London Bond cases, that “the provisions of the Act in relation to the obtaining and use of intercept material are not universally understood.” This is certainly the case, in that the provisions set out by RIPA are incoherent, illogical and at times contradicting of each other. It lacks clarity and transparency; in that the public would not be able to comprehend how courts reached the decisions they did in previous intercept cases. RIPA is not all negative, Kennedy v United Kingdom highlighted the enormous steps the Government has taken to get to RIPA, although the enactment was of a direct result from the pressure of Strasbourg. The developments in UK law in this area have been substantial, but “there are loop-holes that still need to be addressed- communications interception is still far from being ‘in accordance with the law’ as required by Article 8 of the Human Rights Act 1998.”

Bibliography

Journal Articles:

Barnum, D., 'Warrantless Electronic Surveillance in National Security Cases: Lessons from America.' [2006] EHRLR 514-540

Esen, R. (2012) ‘Intercepting Communications In Accordance with the Law’. Journal of Criminal Law, Vol.76, pp.164-178

European Human Rights Law Review, (2010), Case Comment, Kennedy v United Kingdom (26839/05): interception of communications- Regulation of Investigatory Powers Act 2000

Ferguson, G & Wadham, J (2003) ‘Privacy and Surveillance: a review of the Regulation of the Investigatory Powers Act 2000’, European Human Rights Law Review

Gillespie, A, ‘Regulation of internet surveillance,’ (2009), European Human Rights Law Review

Horne, Alexander, ‘the Use of Intercept Evidence in Terrorism Cases’, Home Affairs Section, 24th November 2011, House of Commons Library

Liberty, ‘Relaxing the Ban on the Admissibility of Intercept Evidence’, February 2007

Ormerod, D & Mc Kay, S (2004) ‘Telephone Intercepts and their Admissibility’ Criminal Law Review, pp. 15. (westlaw.uk)

O’Floinn, M & Ormerod, D, ‘Social Networking sites, RIPA and criminal investigations,’ (2011) Criminal Law Review

Review of criminal investigations and prosecutions conducted by HM Customs and Excise by the Hon Mr Justice Butterfield (2003)

Russell J. & Davidson, B, ‘Liberty’s Response to the Joint Committee on Human Rights: “Relaxing the Ban on the Admissibility of Intercept Evidence”,’ February 200

Privy Council Review of Intercept as Evidence, Report to the Prime Minister and the Home Secretary, 30 January 2008, Cm 7324

Privy Counsellor Review Committee: ‘Anti-terrorism, Crime and Security Act Review: Report”, 18th December 2003,

Taylor, N, ‘Legal Privilege: Regulation of Investigatory Powers Act 2000- impact on common law and statutory rights of legal privilege,’(2009) Criminal Law Review

Y. Akdeniz, ‘Regulation of Investigatory Powers Act 2000: Part 1: BigBrother.gov.uk: State Surveillance in the Age of Information and Rights’ [2001] Crim LR 73 at 78

Books:

Fenwick, Helen- civil liberties & human rights/ Helen Fenwick- 4th ed- Abingdon; New York: Routledge- Cavendish, 2007- pp. 1032-1052

Harfield Clive- Covert Investigation/ Clive Harfield and Karen Harfield- 3rd ed. – Oxford: Oxford University Press, 2012. Pp.69-127

Lyon, David, 1948- Surveillance society: monitoring everyday life/ David Lyon- Buckingham: Open University Press, 2001- Issues in Society, chapter 6

Cases:

Klass v UK (1979-80) 2 EHRR 214
Malone v Commissioner of Police of the Metropolis (1979) 2 All ER 620
Malone v UK (1985) 7 EHRR
R v Effik (1995) 3 All ER 458
R v Rasool (1997) 1 WLR 1092
Halford v United Kingdom (20605/92) [1997] I.R.L.R. 471 (ECHR)
Attorney General's Reference (No.5 of 2002), Re [2003] EWCA Crim 1632; [2003] 1 W.L.R. 2902 (CA(Crim Div))
R. v Hammond [2002] EWCA Crim 1243 (CA (Crim Div))
R. v Hardy (Brian) [2002] EWCA Crim 3012; [2003] 1 Cr. App. R. 30 (CA (Crim Div))
Halford v UK (1997) 24 EHRR 523.
R v Mc Donald (2002)
Kennedy v UK (2011)
Kruslin v France (1990)

(“the refusal to allow the intercept product to be used as evidence for the prosecution can hardly favour crime control in its pure sense of maximising convictions”) Liberty’s Response to the Joint Committee on Human Rights: “Relaxing the Ban on the Admissibility of Intercept Evidence”, February 2007, Jago Russell and Barbara Davidson

Akdeniz, Y, ‘Regulation of Investigatory Powers Act 2000: Part 1: BigBrother.gov.uk: state surveillance in the age of information and rights’, Criminal Law Review, 2001

Fenwick, H, ‘Civil Liberties and Human Rights,’ 4th edition, Routledge-Cavendish, 2002

(1984) 7 EHRR 14

(1979-80) 2 EHRR 214

6 Sir Robert McGarry B.C.E. in Malone v Metropolitan Police Commissioner (No.2)[1979] 2 All ER 620

(1995) 1 AC 309.

Rita Esen,‘Intercepting Communications ‘In Accordance with the Law’,’ 76 J Crim. L. 164 2012

See also, R v Ahmed, (1995) Crim LR 246.

(1997) 24 EHRR 523.

Interception of Communications in the United Kingdom: consultation paper, Cmnd4638, June 1999, 16

The Times, Editorial, 6 March 1985- In ‘Intercepting Communications ‘In Accordance with the law’, Rita Esen, 76 J. Crim. L. 164 2012

Hoffman, D. & Rowe, J. ‘Human Rights in the UK: An Introduction to the Human Rights Act 1998’, 2nd ed. Pg 239.

Privy Council Review of Intercept as Evidence, Report to the Prime Minister and the Home Secretary, 30 January 2008, Cm 7324 () (accessed 26/11/2012)

Klass v Germany[1978] ECHR 4

Klass v Germany[1978] ECHR 4, para 56. See also Rotaru v Romania, App No. 28341/95, Judgement of 4 May 2000, GC

Former Home Secretary Rt. Hon. David Blunkett MP, stated: “My whole world was collapsing around me. I was under the most horrendous pressure. I was barely sleeping, and yet I was being asked to sign government warrants in the middle of the night. My physical and emotional health had cracked”, ()

(“The Home Secretary would understandably be afraid of the public response were it to emerge, after a terrorist attack or serious crime, that’s s/he has refused to grant an interception warrant. This may well mean that intercept warrants are issued when, in fact, they represent a disproportionate interference with privacy.”) Jago Russell & Barbara Davidson, ‘Liberty’s Response to the Joint Committee on Human Rights: “Relaxing the Ban on the Admissibility of Intercept Evidence”,’ February 2007

JUSTICE, Intercept Evidence: Lifting the Ban, October 2006, para 3

Article 8 of ECHR states: ‘1.Everyone has the right to respect for his private and family life, his home and his correspondence.2.There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in 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’ (http://www.yourrights.org.uk/yourrights/the-human-rights-act/the-convention-rights/article-8-right-to-respect-for-private-and-family-life.html)

Jago Russell & Barbara Davidson, ‘Liberty’s Response to the Joint Committee on Human Rights: “Relaxing the Ban on the Admissibility of Intercept Evidence”,’ February 2007, pg 7

Section 17 of RIPA prohibits evidence, questions, assertions or disclosures for the purposes of, or in connection with, any legal proceedings that might suggest that unlawful interception of post or telecommunications has occurred or that an interception warrant has been issued.

[2002] EWCA Crim 3012, [2003] Crim LR 394.

[2004] EWCA Crim 1243, [2004] 1 WLR 3279.

(2002)- Similarly in R v Hammond, Mc Intosh and Gray (2002) and R v Hardy and Hardy (2003), it is strange that the courts take the view that such conduct is not an interception at all, if this is the case then why are the provisions of RIPA in place, if the court has the power to over-ride these principles anyway.

(2005) EWCA Crim 703, (2005) 149 SJLB 388 (“mere eavesdropping of a conversation between one person at one end of a mobile telephone or two people face to face cannot constitute a communication in the course of transmission” at [44] )

(1995) 1 AC 309.

Omerod, D & McKay, S (2004) 'Telephone Intercepts and their Admissibility' Criminal Law Review

Liberty v United Kingdom, 48 EHRR 1.

s.15 of RIPA it states that it is “necessary to ensure that a person conducting a criminal prosecution has the information he needs to determine what is required of him by his duty to secure the fairness of the prosecution”, in contrast to this, the Interception of Communications Code of Practice contemplates the retention of material up to the point of criminal proceedings being “rare”

Also see Natunen v Finland (application no. 21022/04)

Olmstead v. United States

Liberty’s Response to the Joint Committee on Human Rights: “Relaxing the Ban on the Admissibility of Intercept Evidence”, February 2007, Jago Russell and Barbara Davidson, pg. 6 (CF Telegraph, ‘Lift phone tap ban in terror trails, says new Met Chief,’ 6th February 2005

The Government Reply to the Twenty-Forth Report from the Joint Committee on Human Rights’, September 2006- Liberty’s Response to the Joint Committee on Human Rights: “Relaxing the Ban on the Admissibility of Intercept Evidence”, February 2007, Jago Russell and Barbara Davidson, pg. 3

“17.—(1) Subject to section 18, no evidence shall be adduced, question asked, assertion or disclosure made or other thing done in, for the purposes of or in connection with any legal proceedings which (in any manner)— (a) discloses, in circumstances from which its origin in anything falling within subsection (2) may be inferred, any of the contents of an intercepted communication or any related communications data; or (b) tends (apart from any such disclosure) to suggest that anything falling within subsection (2) has or may have occurred or be going to occur.” Regulation of Investigatory Powers Act, 2000, s.17

Privy Council Review of Intercept as Evidence, Report to the Prime Minister and the Home Secretary, 30 January 2008, Cm 7324 () (accessed 26/11/2012)

Privy Counsellor Review Committee: ‘Anti-terrorism, Crime and Security Act Review: Report”, 18th December 2003, para 208

See Malone v UK (1984) 7 E.H.R.R. 14, Halford v UK (1997) 24 E.H.R.R. 523 and Khan v UK (2001) 31 E.H.R.R. 45. Review of criminal investigations and prosecutions conducted by HM Customs and Excise by the Hon Mr Justice Butterfield (2003), Ch.12, paras 116-117.

26839/05 [2010] ECHR 682 (18 May 2010)

‘Intercepting Communications ‘In Accordance with the law’, Rita Esen, 76 J. Crim. L. 164 2012