Electronic Surveillance in Intelligence Services

Overview

It will be argued that the increased use of electronic surveillance is unlikely to lead to the demise of human intelligence sources, this assignment will show that the two will work together and that regulation will ensure that that they will both enhance each other. It will be suggested that these two types of surveillance will continue to work alongside each other, which each being more useful in differing circumstances and therefore electronic surveillance will not replace the need for human intelligence.

Main Body

In recent years a combination of developing technology, concern about confession evidence and the changing nature of, especially, financial and drug-related crime has led the police and other law enforcement agencies to adopt increasingly sophisticated and intrusive, methods of investigation. Much of this has been largely hidden from public view and unregulated. Incorporation of the European Convention on Human Rights by the Human Rights Act 1998 will mean that privacy can only lawfully be interfered with if it is necessary to do so, and if it is carried out in accordance with law. The common law approach that the police can do what they want as long it is not prohibited by law is no longer acceptable. The Government introduced legislation or risk exclusion of evidence and challenge in both domestic courts and the European Court of Human Rights (ECHR). The result is the Regulation of Investigatory Powers Bill, covering the interception of communications, the power to demand communications data and decryption of unintelligible material, the use of covert operations and surveillance, and establishing a tribunal to deal with complaints. The scope of the warrant procedure is significantly expanded by the Bill since it will now include interceptions of private telecommunications systems, and will clearly cover the interception of mobile telephones, e-mails, and other computer communications.

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Under s. 26(3) of the RIPA ‘intrusive’ surveillance occurs when a surveillance device is used or an individual is actually present on residential premises, or in a private vehicle, or it is carried out by such a device in relation to such premises or vehicle without being present on the premises or vehicle. ‘Residential’ is defined in s. 48(1) of the RIPA as premises used as living accommodation, while ‘premises’ includes movable structures and land. The definition excludes common areas of residential premises and clearly does not cover office premises (s. 48(7)(b)). Thus, covert surveillance of office premises falls within the term ‘directed’, rather than intrusive, surveillance. Section 26(3), read with s. 48(7), offers only a partial definition since it would cover all forms of covert surveillance taking place in relation to residential premises. Some forms of such surveillance can be treated as directed surveillance, as indicated below, and it is in relation to residential premises that an area of uncertainty is created as to the category into which surveillance falls.

Under s. 32(3) of the RIPA authorisation of intrusive surveillance is on the grounds of ‘the interests of national security, for the purpose of preventing or detecting serious crime or of preventing disorder, in the interests of the economic well-being of the UK’. Proportionality requirements are introduced under s. 32(2): the authorising person must be satisfied that the action to be taken is proportionate to what is hoped to be achieved by carrying it out. Authorisations for such surveillance are granted by the Home Secretary under s. 41 or, for police or customs officers, by senior authorising officers, who are the highest ranking police officers. There is provision for the grant of authorisations in a case of urgency by persons of equally high rank, other than the senior authorising officer. (Christie v United Kingdom 78-A DRE Com HR 119) Under s. 36, the authorisation will not take effect until it has been approved, except where it is urgent and the grounds for urgency are set out in the notice, in which case the authorisation will take effect from the time of its grant. Under s. 38 senior authorising officers can appeal to the Chief Surveillance Commissioner against decisions of ordinary Surveillance Commissioners. The Commissioners have responsibility for the destruction of material obtained by surveillance, under s. 37, but there is no requirement that material no longer needed for proceedings and no longer subject to an authorisation must be destroyed.

The provisions for authorisations under ss 33, 34, 35 and 36 mirror those under the Police Act 1997, Part III in that, under s. 35, notice must be given to a ‘Surveillance Commissioner’ and, under s. 36, the authorisation will not take effect until it has been approved, except where it is urgent and the grounds for urgency are set out in the notice, in which case the authorisation will take effect from the time of its grant. Under s. 38 senior authorising officers can appeal to the Chief Surveillance Commissioner against decisions of ordinary Surveillance Commissioners. The Commissioners have responsibility for the destruction of material obtained by surveillance, under s. 37, but there is no requirement that material no longer needed for proceedings and no longer subject to an authorisation must be destroyed. Under s. 43 authorisations can be granted or renewed urgently orally by senior authorising officers or in writing by persons authorised to act on their behalf in urgent cases. If, under s. 43(3)(a), an authorisation is granted or renewed by a person entitled to act only in urgent cases, or was renewed by such a person or orally, it ceases to take effect after 72 hours. Section 42 provides special rules for the intelligence services which overlap with those of s. 5 of the Intelligence Services Act 1994. Under s. 42 the security and intelligence services can undertake intrusive surveillance on grant of a warrant. The grounds are under s. 32(3). As far as intrusive surveillance is concerned, the function of the services in support of the prevention or detection of serious crime is excluded where the application is by a member of GCHQ or the SIS. Under s. 44(3) a warrant authorising intrusive surveillance issued by a senior official, and not renewed under the hand of the Secretary of State, ‘shall cease to have effect at the end of the second working day’ after its issue. In the case of other warrants that point will be at the end of a period of six months from the day of issue or renewal.

As is obvious from the most cursory examination of RIPA, the distinction between intrusive and directed procedures will be significant in all cases of covert activity because the level of authorisation required and the triggering conditions differ substantially. In the case of the police cell it is crucial, yet RIPA fails to provide an explicit classification of the cell in these terms. It is particularly disappointing that Parliament failed to pre-empt challenges to such an apparently widespread police practice by providing a definitive answer to this problem. It seems bizarre that in interpreting such a recent statute expressly designed to regulate covert activity the matter turns on peripheral matters of definition. The confusion on this point in RIPA cannot be underestimated: the Court of Appeal in Mason called for urgent clarification of whether the police cell is now governed by ‘intrusive’ or ‘directed’ surveillance under RIPA. Although the new Code of Practice issued under s. 71 of RIPA now suggests that cell bugging is ‘intrusive’ surveillance, this is such an important issue for the suspect and apparently such a commonplace police technique that it is submitted that it ought to be dealt with on the face of the statute. The use of human beings to provide information is a valuable resource for the protection of the public and the maintenance of law and order. In order that local authorities and law enforcement agencies are able to discharge their responsibilities, use is made of ‘undercover’ officers and informants. These are referred to as ‘covert human intelligence sources’ or ‘sources’ and the area of work of undercover officers and informants to whom this procedure applies will be referred to as ‘source work.’

In 1999 the Association of Chief Police Officers (ACPO) and HM Customs and Excise published a set of Codes of Practice on Standards in Covert Law Enforcement Techniques. The Codes have no legal basis but are recognised by the police, HM Customs and Excise and the Government as providing authoritative guidelines, and these replace previous guidance issued by the Home Office. (See (www.homeoffice.gov.uk/ripa/ripact.htm).) As the accompanying ‘Declaration on ethical standards and covert investigative techniques’ states, the working practices set out in the Codes ‘seek to achieve a balance between the requirement to work within a defined framework for the safeguarding of civil liberties and the maintenance of a robust approach to the tackling of crime and criminality’. In its reduced form the substance of this statement is a desire to ensure that covert techniques are fair and effective. (Murfield: 2001)

Section 3 of this Code, ‘Surveillance in or into Public Places’, is of relevance to the type of operation considered here. This section is applicable ‘to the planned deployment of covert surveillance resources against the public at large, in order to meet a particular law enforcement need, or against specified individuals in public places where no interference with property is intended’. The Code goes on to provide that: Before giving authorisations for surveillance into public places where no unlawful interference with property is proposed, the authorising officer must be satisfied that … the proposed surveillance is a reasonable means of achieving the desired result.

Manna from heaven operations provide an opportunity to manipulate a combination of circumstances which may lead to an offence being committed. According to the widely accepted ‘routine activity’ theory, offending is determined by the convergence in space and time of three factors: (i) a likely offender, (ii) a suitable target and (iii) the absence of a capable guardian. In the light of this obvious concerns arise over the planning of this type of operation as the police have varying degrees of control over all three factors. By choosing the location of the operation they have some influence over who may be exposed to the temptation offered, also over the presence of a capable guardian, and they have absolute control over the ‘target’, i.e. the type and value of the property used.

The 1997 and 2000 Acts require the Chief Surveillance Commissioner to keep under review (with the assistance of the Surveillance Commissioners and Assistant Surveillance Commissioners) the performance of functions under Part III of the 1997 Act and Part II of the 2000 Act by the police (including the Royal Navy Regulating Branch, the Royal Military Police and the Royal Air Force Police and the Ministry of Defence Police and the British Transport Police), NCIS, the NCS, HMCE and of the 2000 Act the other public authorities listed in Schedule 1 and in Northern Ireland officials of the Ministry of Defence and HM Forces. The Intelligence Services Commissioner’s remit is to provide independent oversight of the use of the powers contained within Part II of the 2000 Act and the 1994 Act by the Security Service, Secret Intelligence Service, GCHQ and the Ministry of Defence and HM Forces (excluding the Royal Navy Regulating Branch, the Royal Military Police and the Royal Air Force Police, and in Northern Ireland officials of the Ministry of Defence.

It is important to consider the effect that the human rights has on both electronic surveillance and human surveillance and its conflict with the RIPA. The substantive rights of Schedule 1 to the HRA may be said to fall into two groups. The first, which includes Article 6, covers a number of fundamental rights; they include the right to liberty under Article 5, the right to a fair hearing under Article 6(1); the presumption of innocence under Article 6(2); minimum rights applicable to everyone charged with a criminal offence under Article 6(3), including the rights to ‘legal assistance of his own choosing’ and to ‘examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him’. Articles 8-11 and Protocols 1 and 6 may be said to cover a more developed conception of human rights; the rights provided include the right to respect for privacy under Article 8, and rights to the freedoms of expression, association and assembly under Articles 10 and 11. Articles 8-11 indicate a structured approach to state interference with the guarantees. To be justified, such interference must be prescribed by law, have a legitimate aim, be necessary in a democratic society and be applied in a non-discriminatory fashion (Article 14). (Uglow: 1995) The European Court of Human Rights main concern has been with the ‘necessary in a democratic society’ requirement; the notion of ‘prescribed by law’ has been focused upon to some extent but usually with the result that it has been found to be satisfied. (See Malone v UK (1985) 7 EHRR 14) The ‘legitimate aim’ requirement will normally be readily satisfied; as Harris, O’Boyle and Warbrick point out, the grounds for interference (under paragraph 2 of Articles 8-11) are so wide that ‘the state can usually make a plausible case that it did have a good reason for interfering with the right’. (Harris et al, 1995 at p290)

As has been demonstrated the use of electronic surveillance is complicated and heavily regulated. However it is useful and can work alongside covert human intelligent. It is worthy of considering some of the technicalities of the two forms of surveillance. There are some difficulties with electronics such as that it may not work and it can fail. However this can also be a problem with human covert surveillance in so far as the operations can fail, and the potential defendant can fail to be present, therefore there are equal difficulties with both of these methods of surveillance.

Covert Human Surveillance will still require corroboration and can prove to be unreliable. The other difficulty that is raised in relation to covert human surveillance is its interaction with the human rights act. In the case of R v Lawrence, Hope, Stapleton, Stapleton, Bravard and May (3 August 2002, CA) this was considered. This was a case of VAT fraud, involving a loss of £ 11 million. Evidence had been obtained by a covert surveillance device or “probe” which had been authorised under Pt III of the Police Act 1997. The appellants submitted before the Court of Appeal that the probe was a breach of Art 8 of the European Convention on Human Rights and that the provisions in the Police Act concerning intrusive surveillance were incompatible with the Convention. Dismissing the appeal, the court held that the probe did not breach Art 8. Covert surveillance was compatible with the Convention where it was authorised by law; such authority was provided by the Police Act. The surveillance was necessary in a democratic society for the prevention of disorder or crime. It was also proportionate. Article 8(2) was therefore complied with. The Police Act 1997 has been overtaken by Pt II of RIPA, which introduces regulatory procedures for various forms of surveillance which, until now, have had no basis in statute. RIPA provides for more stringent scrutiny than the Police Act. However, as with the Police Act and Art 8, Pt II of RIPA provides for no restriction on the use of evidence so obtained. Rather, RIPA is concerned with the various forms of surveillance described in s 26. Once authorised under s 27, the s 26 surveillance will be lawful in relation to that authorisation. Sections 28, 29 and 32 require that the covert surveillance be necessary and proportionate.

Therefore in conclusion it is argued that the increased use of electronic surveillance is unlikely to lead to the demise of human intelligence sources, this assignment that the two work well together and that they are both heavily regulated. Regulation will ensure that the two will work together and that they will both enhance each other. It is suggested that these two types of surveillance will continue to work alongside each other, which each being more useful in differing circumstances

Bibliography

Cases

Christie v United Kingdom 78-A DRE Com HR 119

Malone v UK (1985) 7 EHRR 14

R v Lawrence, Hope, Stapleton, Stapleton, Bravard and May (3 August 2002, CA)

Legislation

Intelligence Services Act 1994

Police Act 1997

Regulation of Investigatory Powers 2000

Regulation of Investigatory Powers (Covert Surveillance: Code Of Practice) Order 2002 (SI 2002 NO. 1933)

Journal Articles

S. Uglow, ‘Covert Surveillance And The Echr’ [1999] Crim Lr 287.

D. J. Harris, M. O’boyle and C. Warbrick, Law Of The European Convention On Human Rights (1995) At 290

P. Mirfield, ‘Regulation Of Investigatory Powers Act 2000 (2): The Evidence Provisions’ [2001] Crim Lr 91

Books

Feldman, Civil Liberties and Human Rights in England and Wales (2nd edn, 2002);

S H Bailey, D J Harris & D C Ormerod, Civil Liberties, Cases and Materials (5th edn, 2001);

N Whitty, T Murphy & S Livingstone, Civil Liberties Law: The Human Rights Act Era;