Interception of Communications Flashcards
What can interception be described as?
The act of making the content of Communication available to a person who is neither the sender nor the intended recipient of that communication
When are state agencies permitted to invade our privacy via interception?
For legitimate aims of protecting national security and preventing and detecting crime as Article 8 (the right to respect for family and private life) is a qualified right
However, it is crucial that there are safeguards in place to protect against unreasonable or arbitrary intrusion, particularly that of proper authorisation
What type of right is Article 8?
Qualified right and therefore can be removed for legitimate reasons states in Article 8 (2)
What positive and negative obligations does Article 8 contain?
-The state is under a positive obligation to act in a manner which protects an individual’s right to privacy and family life
-The state is under a negative obligation to not interfere with privacy rights
Prior to 1885 what requirements where there to follow a legal procedure?
No requirements when authorising the tapping of telephones and the interception of mail.
Instead conditions were laid down in administrative rules not legislation
=this violated the longstanding principle set in Entick v Carrington “executive power may not be exercised save where there is legal basis for it” also supported by the Rule of Law- no punishment without the law
What was the longstanding principle established in Entick v Carrington?
“executive power may not be exercised save where there is a legal basis for it”
Pre any actual legislation when would interception be authorised (3 part test)?
1)To assist in a criminal investigation (in serious crimes)
2)Where normal methods had been tried and failed
3)There was good reason for believing that evidence gained would lead to a conviction
(all 3 required = safeguard, however arguably vague)
When were legislative rules eventually introduced in regards to the tapping of telephones and interception of mail?
1985
under the Interception of Communications Act 1985 partly as a response to the ECtHR ruling in Malone v Uk
=subject to stricter controls
what happened in Malone v UK?
D on trial for receiving stolen goods, evidence was obtained via phone tapping. The interception had been authorised by the home secretary under “administrative guidelines”. D argued that his article 8 right had been breached as the interception was not in accordance with the law ( as there is no law) and thus a violation. ECtHR recommended the introduction of legislation
What was the Interception of Communications Act 1985 repealed by?
Regulation of the Investigatory Powers Act 2000 and the current rules governing these intercepts are now contained within the Investigatory Powers Act 2016
What was introduced under the Investigatory Powers Act 2016?
Introduced some new powers and restated some existing ones to allow certain agencies to carry out targeted interception
What does the IPA 2016 permit the snooping of?
“Equipment interference”
“Bulk personal datasets”
“Bulk warrants”
What did the IPA 2016 create?
Investigatory Powers Commissioner’s Office (safeguard since 2016) to oversee the use of powers and updated the role of the Investigatory Powers Tribunal which provides a right of redress for anyone who believes they have been a victim of unlawful action by a body undertaking surveillance
What do Intelligence and Law Enforcement Agencies now require to access certain information?
A warrant
Must be requested and approved by the secretary of state, a judicial commissioner must also authorise this before it can be activated (acts as a double lock). This ensures that all Investigatory Powers Act warrants issued are necessary and proportionate
What is within S.3 IPA 2016?
Makes it an offence to intentionally and without lawful authority intercept communications by mail or telephone
=Triable either way offence max 2 years in Crown Court
Prosecution requires approval from the DPP (Safeguard)
What does S.18 IPA 2016 allow?
Lists who can apply for a warrant
Permits the following “intercepting authorities” to apply for a warrant including head of intelligence service and chief constables of the Police (Short list of People=safeguard)
What does S.19 IPA 2016 allow?
Secretary of State can issue warrants if necessary and proportionate in relation to the grounds in S.20 IPA 2016
What is in S.20 IPA 2016?
Grounds on which to issue a warrant
-Interest of national security
-preventing or detecting crime
-interest of the economic wellbeing of the Uk
What is S.23 IPA 2016?
The warrant is subject to the approval from judicial commissioner= “double lock” and safeguard, however not necessary in emergencies where notice will be given after (s.24)= dilutes the safeguard
What is S.32 and S.33 of the IPA 2016?
Warrants last for 6 months and can be renewed an unlimited number of times for 30 days= safeguard
What is the Police Act 1997 about?
Planting of Bugging devices inside properties
What case led to the introduction of the Police Act 1997?
Khan
A bugging device had been installed in the outside of a house which Khan had been visiting. Khan was suspected of being involved with the importation of drugs which the tape recording confirmed. D argued that recording was inadmissible as the police had no statutory authority and therefore breached D’s article 8. Court of appeal agreed with trespass however court said such issues outweighed by the fact the police largely stuck to administrative guide lines. HL recommended legislation= led to Police Act 1997
What is S.92 Police Act 1997?
Absolute immunity for police
=gives absolute immunity against any criminal or civil action where the conduct authorised under the act
What is S.93 (2) Police Act 1997?
Basis for authorising the planting of surveillance devices
-allows police to enter and plant surveillance devices without a usual warrant
this many be issued if the authorising officer believes:
(a) that it is necessary … for the purpose of preventing or detecting serious crime and
(b) that the taking of the action is proportionate to what the action seeks to achieve
=(essential means that action can be permitted if the chief constable subjectively believes it to be of substantial value in the prevention and detection of serious crime and the objective cannot reasonably be achieved by other means
True or False there are no exceptions to the Police Act 1997?
True
anyone can be made subject to this law
what is S.93 (4) Police Act 1997?
Definition of “serious crime”
serious crime includes:
-the use of violence or those involving substantial financial gain or those involving many people in the pursuit of a common purpose and the crime is one for which a person over the age of 21 (with no previous convictions) could reasonably be expected to be sentenced to 3 or more years in prison
What is S.95 Police Act 1997?
Duration of Authorisation
=must be given in writing, except in emergencies where it may be given verbally
written= last for 3 moths
verbal= 72 hours
Where authorisation is due to expire, the authorising officer may, in writing, renew authorisation for 3 months where necessary and there is no limit to the number of renewals
What is within S.96 of Police Act 1997?
The IPCO must be notified of any authorisations as soon as they are made so they may be scrutinised
What is within S.97 Police Act 1997?
Prior approval by the IPCO
In some situations prior approval must be given (safeguard):
-where the property is believed to be a dwelling, a bedroom in a hotel or office premises
-where the action authorised is likely to result in any person acquiring knowledge of confidential personal information, confidential journalist materials or matters subject to legal privilege
What is the Regulation of Investigatory Powers Act 2000 regarding?
Covert Surveillance
=legal basis for actions not covered by the Police Act 1997 and was later updated by the Covert Human intelligence Sources (Criminal Conduct) Act 2011
What 3 types of behaviour are covered by the Regulation Investigatory Powers Act 2000?
1)Direct Surveillance
2)Covert Human Intelligence source
3)Intrusive Surveillance
what is Direct surveillance (RIPA 2000)?
premeditated surveillance conducted for the purposes of a particular operation which is likely to result in obtaining private information about the person
-its is covert but not intrusive and takes place in public
What is Covert Human Intelligence source (RIPA 2000)?
A person will establish or maintain a relationship with a person for the covert purpose of using the relationship to obtain access to information
What is Intrusive Surveillance (RIPA 2000)?
Eavesdropping devices are present on residential premises or on vehicle. Can be carried out by several bodies, but are all subject to the approval by a judicial commissioner of the IPCO
What is S.28 (RIPA 2000)?
Authorisation of Directed Surveillance
-authorised by Superintendent of the police or secretary of state if it is proportionate and necessary:
a)interest of national security
b) purpose of preventing or detecting crime or preventing disorder
c) Interest of the economic wellbeing of the Uk
d)Interest of public safety
e)protecting public health
f) purpose of collecting tax
g) for any other purpose if ordered by the secretary of state =broad
(this power is available to police, senior members of Serious Organised Crime agency and other relevant organisations
-Does not require approval from a judicial commissioner, authority lasts for 3 months and can be renewed for a further 3 months =power
What does S.29 (RIPA 2000) do?
Gives authorisation of covert human surveillance based on the same seven grounds above
-Also self-authorised which lasts for 12 months and can be renewed for a further 12 months if it is still necessary and proportionate
What does S.32 (RIPA 2000) allow for?
Authorisation of intrusive surveillance in writing by chief constable or the secretary of state where proportionate and necessary to the grounds:
a)Interest of national security
b)Purpose of preventing and detecting serious crime
c)interest of the economic well-being of the UK
-Notice must be given to the investigatory powers commissioner and authorisation will not take place into it has been approved, authority lasts for 3 months and can be renewed for a further 3 months if it is still necessary and proportionate
When is authorisation for overt interception necessary?
When devices are being used in a pre-planned manner as part of a specific investigation or operation RIPA 2000 authorisation must be obtained
What is the law regarding the admissibility of interception evidence ?
Interception of Communications Act 1985 first put a bar on using intercepted material in legal proceedings on statutory footing
Today- S.56 Investigatory Powers Act 2016 makes material obtained via interception inadmissible
In April 2021, the Hl concluded that it is not incompatible with Article 6 (right toa fair trial) and thus no declaration of incompatibility was issued
What was stated in the Attorney General’s guidelines for prosecution in 2022 regarding the inadmissibility of intercepted evidence?
“interception of communications…… should remain secret and not be disclosed because of the use of technique in particular cases were to be confirmed, the value of the technique would be diminished”
What did the Interception as Evidence government report 2014 state?
It is justifiable that certain types of inadmissible evidence cannot be used as evidence but instead such interception can be used to build an evidential case of admissible evidence
What is the IPCO?
Investigatory Power Commissioner’s Office
What does the IPCO do?
Supervise all procedures under the IPA 2016, Police Act 1997 and RIPA 2000
=provide independent oversight over the use of investigatory powers by intelligence agencies (with around 600 public authorities and public institutions having investigatory powers)
-Headed by the Investigatory Powers Commissioner with around 15 other judicial commissioners and around 50 other staff
State some positives of the Investigatory Powers Commissioners office
-Provides some degree of oversight and scrutiny and intends to protect citizens against the abuse of police power
State some negatives about the IPCO
- Some argue it is an insufficient control and that the judiciary should be involved in the authorisation process, however considering all the main member of the body are current/former judges, technically there is judicial scrutiny taking place
What is the IPT?
Investigatory Powers Tribunal
=provides a right of redress for anyone who believes they have been a victim of unlawful action by a body using covert investigative techniques
-Independent from the government and its members are made up of the judiciary and senior members of the legal profession
What act established the IPT?
S.65 Regulation of Investigatory Powers Act 2000 (updated by the Investigatory Powers Act 2016)
How can someone contact the IPT?
Must have reasonable suspicion of the alleged activity and must be made within 1 year of the alleged activity
-the IPT can undertake its own enquires and investigations and can demand access to all information necessary to establish the facts of a claim, nothing can be held back from the tribunal for secrecy or national security
What outcome can the IPT give someone?
IPT looks to determine if the authorisation was validly given, it need give no reasons for its decisions
= can be either “no determination” rulling or rule in favour of the complainant and order the cessation of surveillance and destruction of material already obtained as well as award compensation
How many complaints did the IPT receive in 2001 and how many in 2021?
2001= 95
2021=353
though less then 4% are found in favour, meaning that 96% either have no activity at all or lawful surveillance
