INTERCEPTION OF COMMUNICATIONS Flashcards
What is the interception of communication about ?
- this is about surveillance and the right to privacy ie listening to calls , opening targeted letters and emails etc
explain briefly the history of state surveillance
- Agents of the state may invade privacy with the aim of promoting internal security or preventing or detecting crime. These are, understandably, legitimate aims. The question that must be answered is whether the safeguards against unreasonable or arbitrary intrusion are fit for purpose.
Which right is affected by surveillance ?
- article 8 right to a private life
What did the interception of communications act 1985 do ?
This made the use of phone and mail intercepts subject to certain controls. Introduced partly as a direct result of the ruling in the ECtHR in Malone v UK
What is the significance of Malone v UK
- Malone’s argument was rejected; as was the argument based on Art. 8
- This led to the UK government passing the Interception of Communications Act 1985. This was replaced by Part 1 Regulation of Investigatory Powers Act 2000, which was amended by the Investigatory Powers Act 2016.
Explain the relevance of bugging devices
- Surveillance techniques are an important way for the police and security services to maintain law and order and to protect national security
- However Supreme Court of Canada stating ‘one can scarcely imagine a state activity more dangerous to individual privacy than electronic surveillance’ - Duarte
- Khan (Sultan) has showed how the police are being questioned about there use of survaillance. this case held that although there has been an invasion of privacy they were acting lawfully
What was the case that suggested that the police had acted lawfully bugging the D’s device ?
- Khan( sutton)
What is the relevance of the police act 1997
- This act provided statutory basis for current practices relating to bugging devices
- this is a broad piece of legislation that expected to be of substantial value in the prevention and de
What is the definition of a serious crime
- Crimes of violence
- Crimes involving financial gain
- Crimes involving many people in pursuit of a common purpose (organised crimes/gangs).
If the crime is one for which a person of 21 or over with no previous convictions could reasonably be expected to receive a prison
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Explain the sections under the police act 1997
- S93(5) – Authorisation for a warrant may be issued by the Chief Officer of Police,
- S95(1) - The authorisation will be given in writing, except in an emergency, where it may be given orally. A written authorisation will last for three months, and an oral one for 72 hours.
- S96 – An independent commissioner appointed under S91(1) must be notified of the authorisations as soon as they are made, but this does not prevent the police acting on the authorisation.
- S97 – requires in certain circumstances for commissioners to give prior approval to the authorisation. This is needed where the property is believed to be a dwelling, a bedroom in a hotel, or office premises.
Explain the Regulation of Investigatory Powers Act 2000 (RIPA 2000)
This is where all forms of surveillance are brought under it
- S1- It is an offence to intentionally and Without lawful authority intercept communications by a postal service or telecommunications system – also includes voicemail (R v Edmondson (2013))
- S3- An interception is lawful if done with consent.
- S5- An interception is lawful if done with a warrant.
-S5(16)overns authorisation.
Home Secretary has the power to issue warrants.
-S6- specifies the people who can submit an application for a warrant.necessary’ for certain specified purposes set out in s5(3) and if the conduct authorised by the warrant is proportional
-S5(3)- ives the following specified purposes:
A) In the interests of national security;
B) Preventing or detecting serious crime;
C) Safeguarding the economic wellbeing of the UK;
D) Giving effect to an international mutual assistance agreement in circumstances equivalent to those falling within B.
Explain the other sections of the regulation of investigatory powers act 2000
- s81(3- defines serious crime as one who has attained the age of 21 and has no previous conviction but could reasonably be expected to be sentenced to imprisonment for 3 years or more. or That the conduct involves the use of violence, results in substantial gain or is conduct by a large number of persons in pursuit of a common purpose.
- s8- deals with contents of the warrant, these must specify the target and contain information about addresses.
- s9- deals with the duration of the warrant. Initial period is 3 months from issue but it may be renewed an unlimited number of times,
- s65- the only route of complaint for those dissatisfied with the system is to a tribunal.
- s65 -he only route of complaint for those dissatisfied with the system is to a tribunal.
- s67- tribunal is to operate on the principles of ‘judicial review’, therefore focusing more on procedure than on substance.
What is meant by covert surveillance ?
- This is regulated by s26-48HRA
- s48 defines surveillance as Monitoring, observing, or listening to persons, their movements, their conversations, or their other activities or communications
Recording anything monitored, observed or listened to in the course of the surveillance
Surveillance by or with the assistance of a surveillance device.
What are the three types of behaviour covered by sections 26 of the RIPA under surveillance
- Section 26 gives three types of behaviour covered by the Act:
1. Directed surveillance
2. Intrusive surveillance
3. Conduct and use of covert human intelligence sources - Section 26: Intrusive surveillance – occurs when a device or an individual is present on residential premises or in a vehicle, it is not intrusive unless the device consistently provides information and detail
- Section 26(2): Covert but not intrusive surveillance is directed surveillance if ‘it is undertaken for the purpose of a specific investigation and in order to obtain private information about a person’.
- Section 26(8): Defines what is meant by a covert human intelligence source. such as a source will establish or maintain a relationship with a person for the covert purpose of using the relationship to obtain access to information, or provide access to another
What is the significance of the cases R V STAGG and R V Hall ?
- R v Hall- this was where d suspected of killing his wife which resulted in undercover police acting as a love interest while gathering intelligence about what happened to D’s wife. HELD that the evidence was inadmissible in court because the undercover officer was a police officer and d should have been cautioned etc
- R v Stagg- An undercover police officer was given the task of extracting a confession from D, but despite her best efforts, D never confessed. Held D was awarded 706k compensation Brennan said the police operation had involved ‘manipulation and deception of a highly reprehensible kind’
