This paper explores aspects of the English legal system particularly relevant to criminal investigations, and how such investigations are informed by the relevant Human Rights Legislation. This is an area of great controversy. On one hand there is the need to acquire criminal intelligence either to prevent crime being carried out, or to catch the perpetrators of such crime. This must be balanced against certain human rights that are at the centre of what it means to be a free, democratic society; privacy, freedom of expression and association, and the right to independent legal advice and a fair trial. These issues have been put into focus by certain events over the past ten year; the passing into English law of the European Convention on Human Rights, the rise of Islamic terrorism and the ‘war on terror’, and political debates about the balancing of human rights with questions of national security.
The European Convention on Human Rights passed into English Law through the Human Rights Act 1998. Since that date that has been a plethora of cases under the Human Rights Act that have set out to define the limits under which intelligence against criminals can be used in police and other, such as Customs and Excise, investigations.
Legislation passed in the UK into English law must be compatible with the various articles of the Human Rights Act. If not compatible, then the legislation must be applied in light of the Human Rights Act. However, unlike in the United States where there is a strict separation of powers between the executive (government), judiciary and legislature, this is not the case in the UK. Here the concept of ‘Parliamentary Sovereignty’ is dominant; thus the courts cannot rule that legislation is unconstitutional and that it be struck down, as the US Supreme Court has done in the past. The courts in the UK instead refer the relevant legislation back to the parliament with a ‘declaration of incompatibility’, after which the House of Commons must implement new legislation without it being found to have acted in a manner unconstitutionally.
Article 8 of European Convention on Human Rights
The main article concerned with the protection of Human Rights in the course of police investigations, particularly the gathering of intelligence is Article 8.
Article 8 of the European Convention on Human Rights states that:
- Everybody has the right to respect for his private and family, his home and his correspondence.
- There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
The position prior to the Human Rights Act 1998
Prior to the passing of the Human Rights Act 1998, and its coming into force in 2000, the protection of Human Rights was left to the discretion of the courts who largely had free rein as a result of the UK having an unwritten constitution. This in itself was arguably a cause for celebration. According to the eminent surveyor of the English constitution, AV Dicey:
most foreign constitutions have begun by declarations of rights…on the other hand, there remains through the (unwritten)English constitution that inseparable connection between the means of enforcing a right and the right to be enforced which is the strength of judicial legislation…Englishmen whose labours…framed the completed set of laws and institutions we call the constitution, fixed their minds more intently on providing remedies for the enforcement of rights…than upon ant declaration of the rights of man.
The founding tenet of English Law with regard to the balance of police or investigative powers and individual rights is the case of Entick v Carrington. In this case the court held that a general warrant, issued by the Secretary of State, did not contain the power to search for and seize seditious papers as there was no statute or common law power to issue such a warrant.
However, prior to the Human Rights Act there was no binding framework for setting down the circumstances when the interception of communications, through use of wiretaps, could be authorised. There were administrative rules which had no legal force.
The case law regarding phone tapping did little to hold intelligence gathering to account. In Malone v Metropolitan Police Commissioner (No 2), the plaintiff challenged the legality of a phone tapping. The Court found that no there was no rights, such as that of privacy, was infringed by the actions of the police. On a complaint by Mr Malone to the European Court of Human Rights, in Malone v UK, the court held that the practices of the United Kingdom were in breach of article 8 of the European Convention on Human Rights (ECHR). It was stated that Read more at:
…it cannot be said with any reasonable certainty what elements of the powers to intercept are incorporated in legal rules and what elements remain within the discretion of the executive.
The Interception of Communications Act 1985 (ICA) was introduced in response to Malone v UK , in that it provided a statutory basis for interception. However, the Act was limited in scope as it did not cover interception by means of listening devices or all forms of telephone communication, it only applied to communication through the public telecommunications system. The Regulation of Investigatory Powers Act 2000 (RIPA) was introduced by the Labour Government that two years previously had passed the ECHR into English Law by virtue of the Human Rights Act 1998.
However, under section 2(2) of the 1985 Act very wide grounds were provided under which the Secretary of State could issue a warrant for the purpose of interception of. These grounds reappeared in section 5(3) RIPA, and include the authorisation of warrant for a wire tap for ‘the purpose of preventing or detecting serious crime’.
However, it is possible to detect the influence of the Human Rights Act in respect of one aspect the RIPA that makes it significantly different for the IPA. Under section 5(2) RIPA the Secretary of State ‘shall not’ issue an interception warrant unless he believes that the conduct it authorises ‘is proportionate to what is sought to be achieved’.
Bugging of Property
The House of Lords in Khan was faced with evidence obtained by police bugging involving trespass. The House of Lords agreed with the Court of Appeal in stating that the evidence could be admitted via the discretion under Section 78 Police and Criminal Evidence Act 1984 that allowed discretion to admit evidence that was obtained from conduct that was not legally authorised on a statutory or common law basis. Consequently, the Khan case went to the European Court of Human Rights.
That court decided that the discretion to exclude or admit evidence under section 78 PACE was not an effective remedy against protection for the individual and decided a breach of Article 8 had occurred. As a result of this case, the Police Act 1997 was passed whereby like IPA and RIPA in respect of interception of communication, bugging, and the almost inevitable trespass involved in installing such devices, was placed on a statutory footing. However, under the Act the ‘basis for allowing the use of bugging is very broad’.
Another area that has come to be scrutinised in light of Article 8 is that of entrapment. This is where a law enforcement officer or some other person may participate in a criminal enterprise solely in order to ‘entrap’ the other party. Under section 78 PACE 1984, it was provided that a court may refuse to admit prosecution evidence obtained by entrapment if, having regard to all circumstances, the admission of evidence would have such an adverse effect on the fairness of the trial. This would be supported under Article 6 Human Rights Act 1998 which states:
…everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal.
Under section 29 (2) Regulation of Investigatory Powers Act 2000:
A person shall not grant an authorisation for the conduct or the use of a covert human intelligence source unless he believes-
(a) that the authorisation is necessary on grounds falling within subsection (3);
(b) that the authorised conduct or use is proportionate to what is sought to be achieved by that conduct or use.
However, under subsection 3:
An authorisation is necessary on grounds falling within this subsection if it is necessary-
(a) in the interests of national security;
(b) for the purpose of preventing or detecting crime or of preventing disorder.
Therefore, sections 2 and 2 must be read together. They are then subject to the requirement of proportionality under Article 8 of the ECHR. Thus, entrapment could only be employee when dealing with serious crime, not for instance, to entrap some one on bail for a minor offence into committing another such offence.
Privilege against self-incrimination
A central tenet of the common law protection of human rights is the privilege not to incriminate ones-self. For instance, a person need not have to account answer question at police interview, subject to certain qualifications as to the right to silence provided under the Criminal Justice and Public Order Act 1994. It is made clear under section 6(2) Human Rights Act 1998 that the onus of proving whether a person has committed an offence is on the prosecution and that evidence cannot be obtained through coercion. This point was tested in the case of Saunders v UK. Here the individual concerned was the former chief executive of the Guinness Group who had been charged with fraud. He was forced to answer questions put by Department of Trade and Industry inspectors under section 437 Companies Act 1985 concerning his activities. The European Court of Justice unsurprisingly found the privilege against self-incrimination had been breached,
The war on terror
The war on terror highlights the problems inherent in balancing criminal intelligence and human rights. This is because the potential perpetrators of terrorist atrocities within this country are subject to criminal law, not the law of war. This is inline with the treatment of other terrorist groups, that though they termed themselves soldiers, were treated as nothing more than criminals.
What is clear is that the level of threat is of a higher degree than at any time in the recent past. Consequently, there has been much legislation to deal with the threat, but also debate about whether or changes should be implemented. For instance, as at present there has been a reluctance for the government to introduce legislation that would give a statutory footing to wire tap surveillance. The argument used by the government is that the ways and means of operating such surveillance would undermine the work of the security services, namely MI5 and GCHQ, and the police.
What is disturbing for supporters of human rights is that such wire taps may still be proceeded with, but without a statutory or common law basis. At any trial of a person charged of an offence on the basis of evidence acquired through such surveillance, the accused would request such information. Although the government may try to exclude it on grounds of national security, it is more than possible that this would be overridden by the right to a fair trial under Article 6 Human Rights Act.
Even more controversial is the issue of the detention of certain suspected terrorists on an open ended basis at Belmarsh prison. Though ostensibly to prevent the possibility of further terrorist attack, there is the reasonable belief that such detention is also designed to be an intelligence gathering process; with little prospect of release, there is huge pressure on detainees to co-operate with the authorities to provide intelligence information, so as to facilitate release or at least ease their passage in custody. There is little doubt in this instance that the courts have come down vehemently in support of the human rights of the various detainees held at Belmarsh, in particular those non-British ones. In the case of A and others v Secretary of State for the Home Department; X and another v Secretary of State for the Home Department, the power of the Home Secretary to ‘intern’ suspected terrorists for an unlimited period without trial was challenged.
The House of Lords stated that the detention of the suspects under Section 23 of Anti- terrorism, Crime and Security Act 2001 was disproportionate and wholly at odds with the UK’s responsibilities under section 5(1) Human Rights Act 1998 which states that:
Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law … (f) the lawful arrest or detention of … a person against whom action is being taken with a view to deportation.
In the event the House of Lords used this case as a restatement of the standards expected of a civilized country at time when difficult decisions had to be made with regard to the balance of obtaining criminal intelligence. There are, of course, many other questions with regard to the obtaining of criminal intelligence when that intelligence could potentially save the lives of thousands of people. However, with regard to the use of threat of torture, this would in no circumstances be tolerated by a British Court, even if torture or threat of torture that provided evidence did not happen here, but in another country. Yet more challenges shall appear in the near future no doubt to the rule against self-incrimination and other long standing principles of human rights in the UK.
There have been, of course, attempts to portray the need for further, and more wide ranging powers to prevent criminality as part of the ‘war on terror’. Article 15 of the European Convention on Human Rights allows for derogations in time of war or other public emergency. What is difficult to reconcile in the war on terror is that no such war actually exists. Criminal acts, even on the most dreadful scale, remain within the ambit of the criminal law, subject what would be termed in the United States ‘Due Process’. The difficulty in the size and scope of the threat now facing the UK. Yet, if those principles of freedom and the rule of law that are so entrenched in our society, that date back to the Magna Carte, the Bill of Rights 1688 and the Human Rights Act 1998 are derogated from, then it is assign that the terrorists hold the upper hand; that the freedoms we cherish have been usurped. There is also the fear of the all pervasive state, that of ‘Big Brother’. There is no doubt that the use of DNA evidence in criminal intelligence has greatly increased the likelihood of perpetrators of crime being caught. However, there is also widespread anxiety about the creation of a nationwide (or even international ) DNA database. Such a database, containing the DNA of people who have committed crimes, or have had to provide a sample due to being charged with an offence, are obviously an aid to police in their future enquiries. Yet, they allow the investigation of crime to be focussed on such a singular, yet incredibly central issue; is there DNA evidence? At the time of writing there is much concern about the number of people whose names are on the DNA database, and whether the actions of police are sufficiently scrutinised in light of the determination of this government to allow them wider powers..
There is an underlying belief in the English legal system that the courts must remain robust in the defence of human rights. The scope of powers however, are required to remain on statutory or common law footing, even during periods of war. This was made clear in the aftermath of the case of Liversidge v Anderson. This case concerned the detention of potential Nazi sympathisers during the Second World War. The burden of proof for interning the individuals was significantly less that for equivalent peace time offences. Lord Atkin, in dissenting opinion that is now accepted as reflecting the true position of English law on this matter, stated : ‘amid the clash of arms, the laws are not silent’.