Investigating crime; and ensuring the integrity of the criminal process Page 71 Court observing that while the normal use of security cameras in premises such as police stations where they serve a legitimate and foreseeable purpose does not in itself raise an issue under Article 8, the situation is different where their use goes beyond the normal or expected use of security cameras: as when police officers seek to obtain clear footage of an individual to show to witnesses and where there is no expectation that a suspect is being filmed for identification. 211 ■ In Gillan and Quinton v the United Kingdom, two individuals attempting to attend a protest against an arms fair had been searched by police. The statute permitted senior police officers to authorise uniformed police officers, if they considered it ‘expedient for the prevention of acts of terrorism’, to stop and search people and vehicles, even in the absence of any reasonable suspicion of wrongdoing. The Court readily found that the use of coercive powers to require an individual to submit to a detailed search amounted to a clear interference with the right to respect for private life. In reaching its decision, the Court considering that the element of humiliation and embarrassment involved in the public nature of a search may have, in certain cases, the potential to compound the seriousness of the interference. While application of the stop and search powers had a basis in statute combined with a Code of Practice, the quality of the provisions was found not to have offered adequate protection against arbitrary interference and was defective on two counts. First, the authorisation of the power to stop and search if police officers considered it ‘expedient’ as opposed to ‘necessary’ to prevent acts of terrorism meant that there was no requirement for any assessment of the proportionality of the authority, and various devices designed to control or review authorisations were either inadequate or never exercised in practice. Secondly, the powers of individual police officers were of a very broad scope and did not require any showing of reasonable suspicion. Instead, the power could be employed merely on a ‘hunch’ or ‘professional intuition’, the sole proviso being that the purpose of the search was to look for articles which could be used in connection with terrorism, a category of considerable breadth which could cover many articles commonly carried in the streets. The conclusion was that such widely-framed powers could be misused, not only against demonstrators and protestors, but also against (as suggested by statistics) ethnic minorities. They were thus insufficiently circumscribed and not subject to adequate legal safeguards against abuse to meet the test of ‘in accordance with the law’. 212 211 Perry v the United Kingdom, judgment of 17 July 2003 at paragraphs 44-49. 212 Gillan and Quinton v the United Kingdom, judgment of 12 January 2010 at paragraphs 76-87.
The European Convention on Human Rights and Policing Page 72 The retention of information concerning persons by the police must have a basis in national law. It was a feature of many totalitarian regimes in Central and Eastern Europe that they subjected huge numbers of people to surveillance and recorded large amounts of private information, often for purely political reasons. ■ In Rotaru v Romania, the applicant had been the subject of a file, created by the Romanian Intelligence Service, which contained a range of information about him. The Court held that ‘since the implementation in practice of measures of secret surveillance of communications is not open to scrutiny …, it would be contrary to the rule of law for the legal discretion granted to the executive to be expressed in terms of unfettered power. Consequently, the law must indicate the scope of any such discretion … with sufficient clarity, having regard to the legitimate aim of the measure in question, to give the individual adequate protection against arbitrary interference.’ 213 ‘Necessary in a democratic society’ The second issue will be the determination of whether surveillance, datagathering or interception of communications is ‘necessary in a democratic society’. In the course of investigations and other work, police may exercise powers under domestic law to obtain fingerprints and other personal information concerning individuals. Information of this type is within the scope of protection provided by Article 8 of the European Convention on Human Rights and therefore its acquisition, retention and use is subject to it. Laws concerning these issues must therefore go no further than is ‘necessary in a democratic society’. From a policing perspective, it is important to ensure that adequate measures are in place to ensure compliance both with national law and with the European Convention on Human Rights. For example, if national law allows for the exercise of police powers in a very broad range of scenarios, police officers responsible for their exercise should ensure that they only use the powers where there is a demonstrated need, and for their proper purpose. This will assist in reducing the likelihood of a successful legal challenge, either in the domestic courts or in Strasbourg. Again, the sufficiency of domestic safeguards to protect against arbitrary application of powers is of relevance, for the necessity of an interference is 213 Rotaru v Romania, judgment of 4 May 2000 at paragraph 55.