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Overlooked: Surveillance and personal privacy in modern Britain 25 Interception warrants have to be authorised by a Secretary of State, usually the Home Secretary. In 2004 the Home Secretary issued 1849 warrants and a further 674 warrants continued in force from previous years. By way of comparison, the total number of federal and state wiretap authorisations in the entire United States in 2005 was 1773. This executive authorisation by a member of the government rather than a senior judge was a key issue raised by Liberty during the course of the Bill in Parliament and remains the principal sticking point about accountability of RIPA authorisation. The Government’s argument against judicial authorisation was that authorising interception involves particularly sensitive decisions that are properly a matter for the executive, and that judges cannot reasonably be expected to make decisions on what is or is not in the interests of national security. While the ECtHR has not specifically required that the authorisation be judicial, it has, on several occasions, stressed the importance of it being so. In Klass v Germany, it said that “it is in principle desirable to entrust supervisory control to a judge” 44 . Likewise in discussing the safeguards offered by French law on interceptions, it placed considerable emphasis on the safeguard of prior judicial authorisation 45 . It is also the practice in a number of countries, including Canada, New Zealand, the United States and other EU member states. The Interception of Communications Commissioner, who is a senior judge, provides post-warrant oversight by reviewing the applications and submitting an annual report to the Prime Minister, which is laid before Parliament without a confidential annex. In relation to the latter, Liberty has long argued that proper accountability requires greater transparency through the publication of more detailed annual reports. In countries such as Australia, New Zealand and the US, the law requires publication of the statistics on the effectiveness of the operations in terms of arrests, prosecutions and convictions, and their cost. This is relevant to determining the necessity and proportionality requirements of Art 8 ECHR when deciding on future operations. Another key debate during the passage of the Bill was whether the historical bar to allowing intercept evidence to be admissible in criminal trial should remain. Liberty has never supported this absolute bar, which seems to have been founded on concerns for the protection of the security services’ sources and methods rather the fairness of the trial process. The bar is a legal anomaly as the UK is virtually the only country to have such a ban 46 . Whilst the evidence obtained under domestic intercepts is inadmissible, that obtained under foreign intercepts can be used if this is in accordance with foreign laws. There are no fundamental civil liberty or human rights objections to the use of this material, properly authorised by judicial warrant, in criminal proceedings. Rules of criminal evidence will apply to ensure that evidence is not admitted in such a way as to unfairly prejudice the case. And if there are concerns over protection of the state’s sources, then clearly established rules of evidence may be used, to allow disclosure to be withheld from the defence and public. More recently, this debate has focused on the evidential difficulties in terrorism cases and the fact that some of the exceptional counter-terrorism measures – including that of control orders – are being justified on the grounds that obtaining sufficient admissible evidence to prosecute in terrorism 44 [1978] ECHR 4 45 Huvig v France (1990) at para.33: “The court does not in any way minimise the value of several of the safeguards, in particular the need for a decision by an investigating judge, who is an independent judicial authority…”. 46 The Republic of Ireland being the only other state in the European Union to have a similar bar.
26 Overlooked: Surveillance and personal privacy in modern Britain cases is proving difficult. It seems that senior police officers, judges and even the former Attorney General now support the use of such evidence in court. One of the requirements of Article 8 is that a person must have an effective remedy when the state has breached this right. Like previous intercept legislation, the Act provides for an Investigatory Powers Tribunal to rule on written complaints over all aspects of surveillance regulated by RIPA, other than where the activity complained against involves the security services. It receives about 150 complaints annually and until 2006 had not found a single contravention of RIPA or the Human Rights Act. Its predecessor also did not uphold a single complaint in its 13 years of operation. However, in December 2006 the Tribunal found that Chief Superintendent Ali Dizaei’s telephone had been unlawfully tapped 47 . This was the first occasion the Tribunal had made such a finding. One of the reasons for such a low success rate is that the Tribunal cannot investigate an interception which was not authorised by a warrant. It therefore provides no protection against unauthorised interceptions, which are considered to be a matter for police investigation, and yet there is no requirement for the Tribunal to refer these to the police. There are also concerns over the closed nature of the procedure. There is no oral hearing, only limited disclosure of evidence to the applicant, and no reasoned decision. The Act specifically excludes access to the High Court to test the legality of decisions. These factors, together with the record of never having upheld a complaint, give rise to a question as to whether the present system can provide an effective remedy. As well as regulating the interception of communications, Part 1 of RIPA creates a single regulatory regime for public authorities to access communications data held by telecommunications companies and Internet Service Providers (ISPs). Communications data includes all information relating to the use of a communication service other than the contents of the communication itself. It therefore includes subscriber details, billing data, telephone numbers, e-mail addresses, web sites visited and, in the case of mobile phones, the location of use. Such data is increasingly and significantly detrimental to privacy rights since it allows a detailed picture to be built of a person’s contacts and activities. The purposes for which such data can be retrieved are wide: national security, prevention of crime, economic well-being, public safety, public health, and collecting or assessing tax. No prior judicial authorisation is required; only self-authorisation by a senior person in the body seeking the data. Similar powers were already being exercised by the police, intelligence services, Customs & Excise and Inland Revenue prior to RIPA. In fact it is estimated that, of the approximately 1 million requests being made to the telephone companies for information, these agencies made around 95% of them. However, in 2002 the Home Office put forward a proposal to extend access to many other public bodies. It was quickly dubbed a “Snooper’s Charter” by the Guardian newspaper and other opponents, including Liberty, which said that the inclusion of a range of bodies from the Financial Services Authority and the Health and Safety Executive to fire, local and even parish authorities would allow vast numbers of officials to self-authorise access to communications data. The order was subsequently withdrawn, and the Home Office put forward a compromise that restricts access to those agencies who have some link to criminal investigation, and that limits the purpose depending on the nature of this role. 47 http://news.bbc.co.uk/1/hi/6166063.stm
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