Surveillance and privacy—where the boundaries blur

The Regulation of Investigatory Powers Act 2000 (RIPA 2000) is a unique piece of law, which placed surveillance activities in English law for the first time. It came into force simultaneously with the Human Rights Act 1998 and that was no coincidence. The purpose of RIPA 2000 was to ensure that the UK complied with Art 8(2) (the right to private and family life) of the European Convention on Human Rights (the Convention) in relation to the gathering of covert material and its subsequent provision in evidence.

One of the most controversial aspects of RIPA 2000 is about to come to an end. Section 17 of the Act provides that no evidence shall be adduced and no disclosure made which “tends to suggest” that surveillance may have occurred, ie that there was an interception. The section presently prohibits the use of intercept evidence where certain sensitive facts would be revealed by, or could be inferred from, the use of such intercept evidence, ie telephone tapping. Despite the European Court of Human Rights approving this position (Jasper v UK) the restriction is about to be lifted as a result of the recommendations of a Privy Council review, chaired by Sir John Chilcot. Effectively, RIPA, s 17 will be replaced with a regime which allows the use of telephone intercept evidence in court in the UK.

LONG OVERDUE
That the reform is long overdue is clear. The UK is one of the only countries in Europe that did not provide for the interception of this potentially vital evidence in trials, but the surprising feature of the Chilcot recommendations is that the answer to what many in government felt was an intractable problem, had always been present in the criminal arsenal of procedures —public interest immunity.

It is depressing that there should have been so much angst and debate over this serious problem when, in the end, Chilcot sensibly advised that intercepted material originating from the intelligence agencies shall not be disclosed beyond cleared judges, prosecutors, or special advocates. Assessments will be made as to whether disclosure puts intelligence capabilities and techniques at risk and if so, no disclosure will be ordered.

Why did it take so long to reach this conclusion? Law enforcement agencies place heavy reliance upon surveillance evidence. The Home Office website states that in 2003, such material produced seizure of 26 tons of illicit drugs, 1,680 arrests (although tellingly they do not reveal how many developed into convictions) and the detection of £390m of financial crime.

Little wonder then, that it is not only our telephone conversations that may be subject to intercept or covert recording. Furthermore, do not expect Art 8 to come riding to the rescue—a perusal of R v SL and others will disabuse you of that. As a matter of law, even though the evidence may have been obtained unlawfully under RIPA 2000 that does in itself render it unfairly admissible at trial with reference to the Police and Evidence Act 1984, s 78. Under English law, the admissibility of evidence in a criminal trial does not depend upon whether or not it has been obtained by lawful means and because in an intrusive surveillance case, the defendant will rarely be able to manage an argument of procedural unfairness based simply upon a breach of Art 8, as a matter of practice, the Convention and s 78 are of no practical use in respect of the potential exclusion of surveillance evidence illegally obtained in breach of a defendant’s right to privacy provided for in Art 8.

LIMITED CURRENCY
As a tool to protect privacy within a civil context, Art 8 provides proportionate and developing protection to an individual’s quality of life. The definition of private life is fluid and a person’s reasonable expectation of privacy may not be determinative but it is certainly significant. Private life can also be violated in a public area, if a person properly expects a degree of privacy (See Campbell v MGN).

But in a criminal context, Art 8 is of limited currency and as the boundaries of RIPA 2000 come tumbling down and the inability of s 78 to wipe out unlawfully obtained evidence continues, Art 8 has little role to play in the criminal arena, leaving the protection of privacy in a criminal trial particularly vulnerable, which seems all the more ironic as the government rushes through legislation to provide for witness anonymity.