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Nick Taylor[*]
and Clive Walker[**]
THIS IS A WORKING DRAFT WHICH
MUST NOT BE COPIED OR QUOTED WITHOUT PERMISSION
ABSTRACT
As surveillance equipment has developed in terms of sophistication and availability,
it becomes increasingly divorced from public (and legal) understanding and, therefore,
scrutiny. The aim of this paper is to affirm and apply the appropriate principles
required for governance. Consideration is given to the nature of, and reasons
for, these developments, as well as attempts at regulation to date. These mainly
take the form of the Interception of Communications Act 1985 and Home Office Guidelines
to the police issued in 1984. The short-comings of each are illustrated by recent
judicial cases which, above all, debase the value of privacy and exult the needs
of national security and crime control. The calls for reform are plotted, together
with their rejection, but it is noted that the intended expansion of the security
services into the field of crime detection may produce inconsistency and confusion
if not change.
In June 1995 the two killers of Hampshire accountant Grant Price were
convicted and sentenced to life imprisonment at Winchester Crown Court.[1] Matthew Pearce and Darren Jones had
selected their victim at random with the object of robbery in mind. However,
after abducting Mr Price in front of his own nine year old son and obtaining
money by using his cash card, their fantasies took over. Mr Price was driven,
bound and gagged, to a remote shingle spit where he was stabbed and died around
twenty four hours later. The conviction of the two rested in part on evidence
obtained by the use of an electronic listening device in a police `bugging'
operation. It is a case which emphasises the valuable if not vital use of such
equipment to the modern police force in detecting serious crime. Indeed, throughout
the history of policing in Britain, the response to social disorder and rising
crime rates has been to adopt the most modern equipment and techniques available.[2]
As Foucault has graphically described,[3] surveillance[4] has been an integral part of the raison d'être
of state institutions for centuries; it is by no means a new official discourse
invented by the recent Royal Commission on Criminal Justice[5]
or the Criminal Justice and Public Order Act 1994.[6]
Power through knowledge over unreliable and suspect populations has long been
an attribute of such policing functions as spying, interrogation, forensic testing,
searching and record-keeping. However, as the technology of surveillance becomes
increasingly sophisticated, it becomes increasingly divorced from public (and
legal) understanding and, therefore, control and scrutiny. As the Price murder
case shows, there may be compelling reasons for the use of technological surveillance
techniques by the police, but equally there are compelling concerns about potential
abuse of such equipment which demand a principled legal framework. The aim of
this paper is to affirm and apply the appropriate principles required for governance.
Background
In 1972, the Younger Committee[7] listed
a whole range of technical surveillance devices then in operation. It considered
that the threat posed to privacy by the use and abuse of such devices demanded
legal regulation. There have been tremendous advances made in the development
of such equipment since the 1972 Report but without the equivalent development
in the law. Bugging equipment is powerful, concealable, cheap, available, and
simple to operate. Under modern policing conditions its appeal is obvious.[8] Two of the major sources of police evidence
have traditionally been interviews with both the suspects and victims to a crime.
However, in recent years, the growth of organised crime,[9] especially drug related, has increased the number
of crimes without direct victims as such, or victims who are unwilling to testify.
Furthermore, the Police and Criminal Evidence Act 1984 ("PACE") provided comprehensive
limits on, or at least more effective oversight of, the interrogation of suspects
to a crime, failure to observe such limits often rendering the evidence inadmissible.
Perhaps such restraints are more perceived than real, as evidence shows that interrogation
remains a popular and successful tactic.[10]
Nevertheless, one natural result of such perceived restraint is to look towards
other forms of evidence gathering which may prove more fruitful. Increasingly,
the police have turned towards more proactive targeting and surveillance[11] or have resorted to various forms of undercover
tactics either involving "sting" operations or the use of agents. Examples have
included the elaborate establishment of a bogus second-hand goods shop in order
to entice thieves and receivers (in R v Christou[12]) or putting temptation in the way of ne'er-do-wells
by leaving valuable goods on show in the back of a van with its doors left ajar
(Williams v DPP).[13] Sometimes, the police
themselves[14] have even posed as the friends
and confidants of their suspects, as in the cases in 1994[15]
of Keith Hall[16] and of Colin Stagg.17 In
both cases evidence gathered in the undercover operations was excluded under section
78 of PACE. In Keith Hall's case, a purported confession obtained by a young police
woman ostensibly playing the role of his girlfriend, had, according to the judge,
"driven a coach and horses"[18] through the protections offered by PACE, and
was consequently excluded. In the highly publicised case of Stagg, an undercover
policewoman struck up a correspondence with Stagg and invited him to send her
sexual fantasies. The plan succeeded insofar as the fantasies Stagg produced allegedly
showed he shared a rare sexual deviancy with the killer of Rachel Nickell. Mr
Justice Ognall refused to admit such evidence, calling the investigation, "a misconceived
and deceptive operation".[19] The evidence was excluded under s.78 of PACE
in that "it would have such an adverse effect on the fairness of the proceedings".
Following Smurthwaite and Gill,20 wherein the defendants
were recorded in conversation with undercover officers posing as contract killers,
the Court of Appeal provided a non-exhaustive list of factors which the judge
may take into account when faced with undercover evidence.[21] The common theme was very much in favour of
the passive approach as opposed to the proactive one. The force of Ognall J's
castigation of the methods use in Stagg very much supports this direction. It
is one under which passive police bugging operations are likely to find favour
and to flourish.
With an apparent green light from the courts, coupled with their simple operation,
it is no surprise that electronic listening devices are increasingly prevalent.
However, as the Supreme Court of Canada has observed, "one can scarcely imagine
a state activity more dangerous to individual privacy than electronic surveillance".[22]
This is particularly pertinent in England and Wales which does not have a general
right to privacy.[23]
It is accepted that privacy is protected indirectly in English law in a wide
variety of circumstances such as through an action for breach of confidence.[24] Yet this piecemeal protection of privacy has
had little effect on the use of surveillance equipment. The case of Sheen
v Clegg[25] provides a rare example of
damages awarded for trespass arising out of a bugging incident. Though the trespass
to the plaintiff's property was compensated, there was little that could be
done regarding the information already gleaned from the microphone placed above
the plaintiff's marital bed! Furthermore, such an action based on real property
rights is increasingly pointless in the light of technological advances which
enable conversations to be intercepted without the need to enter onto any premises.
It was stated in Entick v Carrington that "the eye cannot by the laws
of England be guilty of trespass".[26] "Nor can the ear", added Megarry V.C. in Malone
(no.2).27 If modern surveillance techniques are to be justified,
legal standards should be imposed and observed which at least reflect the prevailing
Liberal paradigms. In this way, this paper adopts henceforth a form of immanent
critique which seeks to call to account state policing agencies according to
the principles which they self-consciously and expressly espouse for themselves.
Principles[28]
In the first place the power to use covert surveillance equipment must be
given a clear and precise basis in law - in the language of the European Convention
on Human Rights, it should as a basic requirement be "prescribed by law". It is
therefore not acceptable that various surveillance techniques may be employed
merely because they are not unlawful. The law must be sufficiently clear to give
both those citizens potentially subject to them and the official agency seeking
to employ them an adequate indication as to the circumstances in which they may
take place. A democracy must tolerate the need to use such equipment in certain
circumstances, but the circumstances must be exceptional and highly controlled.
Having established firm grounds for use of aural surveillance equipment, "it would
be contrary to the rule of law for the legal discretion granted to the executive
to be expressed in terms of an unfettered power: the law [has] to indicate the
scope of any such discretion ... to give the individual adequate protection against
arbitrary interference".[29] Furthermore, in accordance with the rule of
law, effective scrutiny and accountability after the event must ensure that only
those targets objectively defined are subject to surveillance, and that any data
collected as a result is only used and stored for a specific purpose and duration.
Should unauthorised interceptions take place, the subject must be adequately compensated
and the intercepted material only admitted in evidence at the discretion of the
judge. There also has to be an element of proportionality in the law. There must
be a balance between the seriousness of the crime for which its use is permitted
and the potential damage to human rights. Further still, once it is accepted that
covert technical surveillance may be carried out in a particular case, the method
adopted should be the minimal obtrusive means necessary to obtain the relevant
information. In sum, these are far from radical guiding principles, but current
regulations fall well short.
Existing Regulations
Until 1985 there was no statutory framework regulating the use of electronic
surveillance techniques in the United Kingdom.[30] Attention was specifically drawn to this fact
by the well documented case of Malone (no.2). Megarry V.C. recognised that
the interception of Malone's telephone calls was neither a civil wrong nor a crime,
though as such it was "not a subject on which it [was] possible to feel any pride
in English law".[31] Nevertheless, the same interception was held
to be in breach of Article 8 of the European Convention of Human Rights - the
right to respect for private and family life, home, and correspondence. The use
of interception was not justifiable because it was "not in accordance with the
law". In this way, no specific domestic law authorised the practice, therefore
there were inadequate legal standards to provide safeguards against abuse, and
in most situations there was no legal remedy. Largely in response to this decision,
the Government introduced the Interception of Communications Act 1985.[32]
Through the 1985 Act the Government sought to provide a statutory framework
for legitimate interception. Regrettably the Act went no further than the Malone
judgement demanded and, as such, regulates merely telephone interceptions and
the metering of telephone calls.[33] During its passage through Parliament, the
Act was criticised as "setting out to regulate canal traffic in the age of the
high speed train and the motorway".[34] To
govern the use of telephone interceptions whilst ignoring other forms of aural
electronic surveillance is indefensible. Assuming that different methods of
communication have equal attractiveness (and perhaps interchangeability) to
the criminal fraternity, legal regulation which concentrates upon telephone
tapping alone makes the use of unregulated techniques very attractive indeed.
Arguably, however, telecommunications media are not all equal; it would be rational
to assume that unregulated devices may intercept conversations deemed by the
participants as too important and sensitive even for the telephone.
Even though it is the regulated and therefore relatively unattractive sector,
telephone tapping under the 1985 Act has increased considerably since figures
began to be released ten years ago, as the following table demonstrates:[35]
Table not available
It should be noted that while the number of warrants actually in force at
any one time has increased modestly (from 234 at the end of 1985 to 336 at the
end of 1994), this masks a much steeper proportionate rise in the rate of issuance
per annum (from 462 in 1985 to 961 in 1994). One wonders how much more
spectacular the increase in the usage of unregulated bugging devices has been,
given that they can circumvent much of the bureaucratic complication which is
entailed by "playing by the book" under the 1985 Act.
The Interception of Communications Act 1985 therefore has no effect on the
use of most electronic eavesdropping techniques,[36] including even those within its purview. Neither
does it provide a framework on which to build wider legislation. Whilst a legal
basis for interception has been formulated (albeit rather loosely drafted),
it is questionable whether clear limits and remedies have been formulated. Under
the 1985 Act authorisation for telephone tapping involves the granting of a
ministerial warrant in accordance with statutory criteria.[37]
Following the German case of Klass,38 it would appear that
judicial supervision is not necessary to satisfy the Convention, though it is
desirable. However, for criminal investigations as opposed to security cases,
an element of judicial supervision should be provided, as recommended by the
Royal Commission on Criminal Procedure in 1981.[39]
The judiciary have the necessary expertise to scrutinise police suspicions and
provide an element of objectivity and independence.[40]
Another shortcoming is that, without the requirement to notify a person that
they have been the subject of surveillance, the ability to complain to the relevant
Tribunal [41] is severely restricted. A complaint
to the Tribunal, in the unlikely circumstances that an interception has been
discovered, may result in an order that the warrant be quashed and the intercepted
material destroyed, but it has no jurisdiction over unauthorised telephone taps
which are said to be matters for the police (who may ironically also represent
the prime suspects).[42] The adequacy of the
whole process is annually reviewed by a Commissioner who reports to Parliament,[43]
though the nature of such reports does not suggest comprehensive scrutiny.[44] Ultimately it is unsatisfactory, certainly
in the field of criminal investigation, to exclude the ordinary courts wholly
from the review process.
Whilst the Interception of Communications Act 1985 answered the immediate
criticisms enunciated in Malone (no.2) and therefore was upheld by the
European Commission in Christie v UK as in conformity with the Convention,[45]
it provides neither regulation for electronic interception beyond the telephone
nor an adequate basis for further legislation legislation. Nevertheless, the
Interception of Communications Act does provide a legislative framework absent
from all other forms of police aural surveillance. The current use of aural
surveillance equipment is governed merely by Home Office Guidelines.[46] These Guidelines do recognise the sensitivity
in using such equipment especially in private places such as private dwellings
and hotel bedrooms. Consequently, an authorising officer (a Chief Constable
in such a case, or an Inspector if no recordings are made) must satisfy himself
of a number of criteria, including: the investigation must concern serious crime,
normal methods of investigation must have been tried and failed or be unlikely
to succeed if tried, there must be good reason to think that the use of such
equipment would be likely to lead to an arrest and conviction, and use of the
equipment must be operationally feasible. An element of proportionality is also
evident in that the authorising officer must weigh the seriousness of the offence
against the degree of intrusion necessary. The use of such equipment is restricted
to one month though it may be renewed if the criteria can still be satisfied.
A central record of the use of aural surveillance devices is kept for two years.
In many respects these criteria are appropriate in limiting the use of the
equipment and are, in fact, similar to the Secretary of State's old rules of
practice for intercepting mail and telephone conversations disclosed in the
Birkett Report.[47] Crucially, however, the
Guidelines lack the legal basis demanded by the European Convention in the analogous
case of Malone (no.2); they are not "in accordance with the law" and
undoubtedly fall foul of Article 8. Furthermore, internal police approval cannot
provide the necessary public accountability; Home Office Guidelines bind no-one
and hence, regardless of their content, they cannot provide the necessary reassurance.[48].
To be "necessary in a democratic society" as Article 8 further demands, Klass
would suggest that an element of independent supervision of the system is required.
This need not be judicial (it was a Minister of State in Klass), but
arguably it should be so in the context of a criminal investigation.
In light of existing regulations, how then have the courts sought to deal
with electronic aural surveillance which falls outside the certainty of the
1985 Act? As seen earlier in the case of Smurthwaite and Gill, the courts
do appear willling to accept evidence gathered by passive means such as surreptitious
surveillance. This willingness has extended to the use of bugging devices, at
least where the police were acting on their "home" territory or where one of
the parties to the conversation to be bugged was a willing confederate of the
police. Examples of the former include the cases of R v Ali,49
where the police planted a secret microphone in an interview room, and R
v Bailey,[50] where a police cell was bugged.
The involvement of one of the parties to the projected incriminating conversation
with the suspect was the ploy adopted in R v Jelen,51 but
such a trick by an alleged rape victim late in the investigation fell foul of
section 78 of PACE in R v H.52
Despite the occasional rejection of evidence, the tactic of secret surveillance
has on the whole produced dividends for investigators, and this success has
perhaps spurred them on to adopt even bolder tactics. The recent case of R
v Khan[53] emphasises the emergent, somewhat
cavalier approach. In July 1992, the appellant, Khan, was travelling on the
same flight from Pakistan as Farooq Newab who was found to be in possession
of heroin. Newab admitted knowing Khan but did not implicate him in the offence.
No drugs were found in Khan's possession, and he was released without charge
after denying any offence and declining to answer many of the questions put
to him.
In January 1993 Khan visited the house of a man named Bashforth in Sheffield.
Some time previously, the police had established reason to believe Bashforth
was dealing heavily in heroin and were consequently granted authority by the
Chief Constable of South Yorkshire to install an aural surveillance device on
the exterior of the house. Neither Khan nor Bashforth were aware of its presence.
It had not been foreseen that Khan would visit the house, but, by means of the
surveillance device, recordings were made of Khan in which he made it clear
that he was involved in the importation of the drug. He was subsequently arrested
in February 1993.
Khan was convicted largely on the basis of evidence gathered by the aural
surveillance device. Arguements were advanced on Khan's behalf that such evidence
was inadmissible. Firstly, the installation of the listening device involved
trespass upon, and damage to, private property. Secondly, no statute or established
law governed the installation or use of such devices by the police and as such
the ordinary citizen had no means of knowing what the legal position was when
such an invasion of privacy occurred. Citizens should be aware of the circumstances
and conditions in which the police operate such equipment. Reliance was placed
on Malone (no.2) to strengthen this point on which the European Court
had stated that "... the law must be sufficiently clear in its terms to give
citizens an adequate indication as to the circumstances in which and the conditions
on which public authorities are empowered to resort to this secret and potentially
dangerous interference".[54] Thirdly, it was suggested that the product
of covert surveillance had previously only been used for the prevention and
detection of crime and not to secure a conviction by admitting it in evidence.
To depart from previous practice now would be somewhat anomalous. In addition
it was argued that, by analogy with Malone (no.2), this set of facts
represented a clear breach of Article 8.
The Court of Appeal, however, supported the trial judge and dismissed the
appeal. The Court recognised that it was an established rule of English law
that the predominant test of admissibility is relevance and therefore relevant
evidence, even if illegally obtained, is admissible. This had been plainly accepted
by the House of Lords in Sang.55 Though it is important to
uphold rights of privacy, there is a stronger public interest factor in this
case in detecting serious crime by means of up to date technical devices. Similarly,
suggestions that the evidence be excluded under section 78 of PACE were rejected.
Section 78 allows the judge a discretion to exclude if "it would have such an
adverse effect on the fairness of the proceedings that the court ought not to
admit it". Reference was made to Smurthwaite and Gill that "fairness
of the proceedings involves a consideration not only of fairness to the accused
but also ... fairness to the public".[56] Fairness would be seemingly achieved by admitting
evidence obtained by passive means of technological surveillance concerning
a serious crime.
Regarding the potential breach of Article 8, the Court of Appeal re-iterated
that as yet the Convention was not part of the law of the United Kingdom and
as such was only of persuasive assistance.[57]
Equally easily dismissed were the arguments concerning the anomaly of using
the product of interceptions as evidence in court. The views expressed by Lord
Mustill in Preston[58] that intercept
material should never be so employed were directed specifically at telephone
interceptions and the interpretation of the Interception of Communications Act
1985.[59] Other forms of surveillance governed
by the Home Office Guidelines were not so restricted.
In summary, Khan is a prime example not only of the limits of judicial
understanding in relation to aural surveillance but of the insignificant value
given by the courts to the needs of privacy. It confirms the dangerous trend
set by Sir John Donaldson in the Attorney-General v Guardian Newspapers (No.2),60
in which he appeared to show the utmost indulgence towards the bugging and burglary
operations of the Security Service alleged by Peter Wright:
"...there is a need for some discretion and common sense. Let us suppose that
the service has information which suggests that a spy may be operating from
particular premises. It needs to have confirmation....A secret search of the
premises is the obvious answer. Is it really 'wrongdoing'?
...Even in the context of the work of the Security Service...there must be
stringent limits to what breaches of the law can be considered excusable....But
covert invasions of privacy, which I think is what Mr. Wright means by 'burglary',
may in some circumstances be a different matter."
Before entirely dismissing the appeal in Khan, however, the Court stated
that, "it is, in our view, at least worthy of consideration as to the circumstances
in which bugging a private home by the police can be justified should be the
subject of statutory control".[61] This point was taken up by another member of
the judicial bretheren, Lord Justice Stuart Smith, here acting in his capacity
as Commissioner under the Security Service Act 1989.[62] The Commissioner was concerned about the implications
of the judgment for the likelihood of observance of the requirement to obtain
a warrant under section 3 of the 1989 Act (or the Intelligence Services Act
1994). On raising the matter with the Home Secretary, he apparently "received
an assurance from the police that they would not seek to use their powers under
the 1984 Guidelines, in counter-terrorism cases. In such cases it would be necessary,
if interference with property were to be involved, for application to be made
to the Secretary of State under the Acts of 1989 and 1994."[63]
The result is a compromise which is full of holes. For matters (such as terrorism,
espionage and subversion) within the Security Service Act 1989 and Intelligence
Services Act 1994, there is no more than a bare promise that police Special
Branch officers concerned in such matters will play the game. If only a small
proportion of Peter Wright's version of reality in Spycatcher[64] is in fact true, then one must doubt whether
an English spy's word is his or her bond. Furthermore, the 1989 and 1994 do
not (yet) cover the vast range of criminality falling outside of these exotic
fields of investigation, so that ordinary police detectives retain a large degree
of discretion. As far as they are concerned, the Guidelines which do apply to
them (those issued in 1984) only come into play in respect of bugs where the
only reasonably foreseeable result is to overhear telephone conversations, such
as planting a bug actually on a telephone receiver or in a telephone booth.[65]
Perhaps for these reasons, the far from naive Commissioner expressed the conclusion
that "it is not in my view entirely satisfactory that this matter should depend
on such an assurance."[66] Like the Court of
Appeal, he thought that statutory controls were the real answer.
Though it is alarming to see privacy given such scant protection, the use
of surreptitious surveillance in Khan is perhaps understandable involving,
as it did, a "serious crime" with international ramifications. In the case of
Govell[67] however, it is rather more
difficult to accept the credulity of the judiciary since no serious or imminent
threat to life or property was ever apparently established before them. In February
1992, Michael Govell and his wife rightly believed they were the subject of
police surveillance at their Leeds home. He discovered that a hole had been
drilled in the living room wall of his home which would have enabled someone
to listen from next door or to attach some kind of device. On returning home
on one occasion, his wife apparently thought she had disturbed a burglar who
had then left.
In June 1992 Mr Govell's solicitors wrote to the Police Complaints Authority
outlining the damage caused to the house by the device and the inconvenience
suffered by the Govell's who had not been charged with any offence. The officer
appointed to investigate the complaint established that the police had reasonable
cause to suspect Mr Govell's involvement in serious crime, proper authority
had been sought and given for the installation and use of the device, and all
damage to the house had been made good. The investigating officer's report was
then sent to the DPP for advice. In March 1993 the DPP replied with the advice
that the evidence did not justify criminal proceedings. On the basis of this
advice, the Assistant Chief Constable wrote to the PCA with his opinion that
no disciplinary charges should follow. The PCA agreed with that opinion.
Mr Govell had no redress whatsoever for the blatant and gross invasion of
his privacy. An application for judicial review of the handling of the complaint
and the rejection of police wrongdoing was granted in October 1993 but was swiftly
dismissed. The Divisional Court gave scant regard to Mr Govell's complaint but
instead offered a simple acceptance that compliance with the Home Office Guidelines
on the use of surveillance equipment satisfied the `lawful excuse' precluding
the establishment of criminal damage by the police officers.[68]
Such meek acceptance of the use of surreptitious aural equipment coupled with
the admissibility in evidence of intercept material has certainly increased
its attractiveness and further eroded individual liberties. If individual rights
are to be respected then legislation must follow.
Prospects for Reform
In 1957 the Birkett Committee[69] published
the administrative guidelines then in operation for the regulation of intercepting
communications. Since that time there have been a number of documents advocating
reform, all of which have been ignored. In 1972 the Younger Committee[70]
recommended a strengthening of the law in relation to the use of surreptitious
surveillance equipment. The 1981 Law Commission Report on Breach of Confidence[71] recommended criminal prohibitions against obtaining
information by improper use of such equipment. In the same year the Royal Commission
on Criminal Procedure[72] reported that they
had found no evidence that existing practices were inadequate but recommended
statutory regulation in order to bring precision and clarity to the rules. In
recent years whilst there has been a growing recognition of the value of individual
privacy, this has mainly been connected with intrusions by the media rather than
the police, though the outcome has been much the same. So, whilst the 1990 Calcutt
Committee[73] proposed a criminal offence of obtaining personal
information on private property by the use of suveillance device, it was restricted
to the press and not policing activities. Equally, the 1993 Heritage Select Committee
Report on Privacy[74] concentrated on the media. Emphatically the
1995 Government Response[75] rejected legislative
action directed against surveillance devices even in this field.
What seems to be sadly lacking in all these recent discussion papers is a
firm commitment to legislation directed specifically at police powers. In outline,
it should contain some of the following featrures. Basically, the use by the
police of technological surveillance equipment should only be used in response
to "serious crime". The definition of serious crime contained in the Interception
Communications Act 1985 is woefully inadequate, covering, for example, "conduct
by a large number of persons in pursuit of a common purpose". This basis for
the use of surveillance equipment would be too wide, so an anology with the
definition of "serious arrestable offence" in PACE s.116 would be more acceptable[76].
Upon satisfaction of this criterion a judge could then issue a warrant to authorise
use of the equipment[77]. Although Klass
suggested that a ministerial warrant procedure would conform with the requirements
of the ECHR, it is submitted that for ordinary criminal investigations an element
of judicial authorisation is required. The judiciary are in a better position
than a Government Minister to play the role of objective scrutineer of police
suspicions. The criteria for issuing such warrants should involve strict time
limits and include elements of necessity and proportionality.
If such legislative regulation is to have any real impact, there must be the
availability of post-surveillance review. Upon completion of an investigation,
the surveillance target should be informed that s/he has been targeted and that
the courts could award compensation had the equipment been used improperly.
A further point to consider in the light of recent cases, however, is what should
be the procedure in relation to evidence unlawfully obtained by means of a covert
surveillance device?[78] R v Khan emphasised
that relevance is the key to admissibility in court, and the European Court
in Schenk v Switzerland[79] held that evidence from illegal telephone interceptions
may be admitted in evidence without necesarily violating Article 6, the right
to a fair trial. What incentive is there to follow the current procedure if
"illegal" means of interception produce the same result? Mandatory exclusion[80]
of such evidence might ensure greater adherence to lawful methods of covert
surveillance but might also be viewed as too beneficial to the guilty. The judge's
discretion to exclude evidence under section 78 of PACE appears to be the most
obvious solution. It will only have worthwhile effect, however, if the judiciary
are prepared to give real substance to the concept of individual privacy, which
would require a considerable change of tack.
The Government's blatant disregard for concerns about privacy in recent legislation[81]
does not offer encouragement to the foregoing plans. Although the clamour for
the general recognition of privacy has now been firmly dismissed in official
discourse,[82] there is no excuse not to address specific
problems relevant to privacy on a more fragmentary basis. The failure to move
towards reform at that level is more disturbing, as it would not entail concessions
on matters of difficult principle, such as the acceptability of a bill of rights
or the respective weighted values of free speech and privacy. Why then is the
more modest project of the legislative regulation of bugs not actioned? One
might suppose that the police are discretely lobbying behind the scenes to block
any moves which would restrain their operative discretion and freedom in connection
with such techniques. However, such evidence as is available suggests otherwise,
and it appears that Chief Constables have accepted that bugs should be brought
under legal control.[83] One must therefore turn towards more sinister
and perhaps fanciful explanations. One rather conspiratorial theory might be
that the Government wishes to avoid legislation which regulates interceptions
through its concern not to upset the "special relationship" with the United
States whose largest spy centre in Europe is located at Menwith Hill in North
Yorkshire[84]. Recent claims by Max Madden
MP suggest that the base is already used by both the British and US Governments
to avoid the Interception of Communications Act 1985.[85]
If this is the point behind the resistance to regulation, then tricky times
lie ahead. It was announced in the Queen's Speech on the opening of the 1995-96
Parliamentary session that the functions of the Security Service are to be extended
to organised and serious crimes. The details are far from finalised, but one
consequence will be that the powers to interfere with property under section
3 of the Security Service Act 1989 (as it will be amended) will then be directly
applicable. One would suppose that with the Commissioner breathing down their
necks, the spies will have to abide by the rules and seek formal permission
for bugging which falls within section 3 in that the planting of the bug involves
a trespass (as in Khan and Govell). Yet, the time for rejoicing
has not really arrived. The Government was more motivated by concerns to extend
the activities of a secretive and largely unaccountable organisation (and one
which seems to have an effective lobbying apparatus which responded effectively
to threatened cuts in the wake of the end of the Cold War) rather than by concerns
to nuture individual privacy. Furthermore, there will still be huge gaps in
regulation. The bugging actions of the Security Service will not be affected
if there is no direct interference with property within section 3. An even more
bizarre effect will be that spies will become more closely regulated than police
officers who investigate serious and organised crimes, a total reversal of the
situation which had prevailed for centuries. Such confusion and pragmaticism
is, of course, the way of the British constitution - it might work, but it is
hardly to be applauded or copied.
(c) Nick Taylor and Clive Walker, 24 November 1995
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