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Recruiting informants and radicalisation: legal issues

Stories that young men have been radicalised following attempts by the Security Service (MI5) to recruit them as informants (technically known as Covert Human Intelligence Sources, or as the former Chief Surveillance Commissioner Sir Andrew Legatt observed, “inelegantly” CHIS) appear with increasing regularity. Last year there were reports that Mohammed Emwazi, “Jihadi John”, may have been turned towards Islamic extremism following a failed pitch by MI5 for him to work for them. Last month a broadly similar account appeared in relation to Siddhartha Dhar, Jihadi John’s apparent successor. Michael Adebowale, one of Lee Rigby’s killers, claimed that he too was the subject of a failed recruitment bid by the agency. In its evidence to the Intelligence and Security Committee MI5 neither confirmed nor denied (NCND is discussed here) whether this was true on the grounds that it would damage national security to do so. What MI5 was prepared to say was that it had not carried out an assessment of his mental health [see paragraphs 126 to 128 of the report].

The issue of radicalisation following a failed attempt to recruit is one deserving of proper research but this paper examines the legal issues arising. The Chief Surveillance Commissioner, who does not have responsibility for the security services, identified a similar issue in his latest report:

“…less common, but still encountered, the failure to authorise a CHIS promptly as soon as they have met the criteria; and in many cases (more typically within the non-law enforcement agencies) a failure to recognise or be alive to the possibility that someone may have met those criteria”

This encapsulates both the problem and the subject of this blog: defining CHIS and evaluating the considerations on attempting recruitment.

The definition is found in the Regulation of Investigatory Powers Act 2000. It is often presumed in s 26(8). This provides:

“(8)    For the purposes of this Part a person is a covert human intelligence source if—

(a) he establishes or maintains a personal or other relationship with a person for the covert purpose of facilitating the doing of anything falling within paragraph (b) or (c);

(b) he covertly uses such a relationship to obtain information or to provide access to any information to another person; or

(c) he covertly discloses information obtained by the use of such a relationship, or as a consequence of the existence of such a relationship”

There is some elaboration of the terms in s 26(9):

“9…   

(b) a purpose is covert, in relation to the establishment or maintenance of a personal or other relationship, if and only if the relationship is conducted in a manner that is calculated to ensure that one of the parties to the relationship is unaware of the purpose; and

(c) a relationship is used covertly, and information obtained as mentioned in subsection (8)(c) is disclosed covertly, if and only if it is used or, as the case may be, disclosed in a manner that is calculated to ensure that one of the parties to the relationship is unaware of the use or disclosure in question”

These provisions are explained in Covert Policing Law & Practice:

“Attempting to give the definition some clarity is not easy but the relationship is essentially tripartite—the ‘authority’ one part, the source the other and the ‘target’ the third. Subsection 9(a) requires the source to establish or maintain ‘a personal or other relationship with a person’ for the purposes of the two subsections that follow”.

However s 26(7), the subsection immediately prior to the substantive definition, expands this significantly. It provides:

“7.     In this Part—

(a) references to the conduct of a covert human intelligence source are references to any conduct of such a source which falls within any of paragraphs (a) to (c) of subsection (8), or is incidental to anything falling within any of those paragraphs; and

(b)references to the use of a covert human intelligence source are references to inducing, asking or assisting a person to engage in the conduct of such a source, or to obtain information by means of the conduct of such a source”

So, it can be seen, that any act incidental or preparatory to the proposed recruitment of a CHIS falls within the definition and, to be compliant, requires authorisation.

The significance of authorisation is that s 29(5) creates an obligation to appoint someone with responsibility for the welfare and security of the source as well as a quite different person to oversee the use made of the source. The Covert Human Intelligence Sources Code of Practice on sets out the practicalities of this at paragraph 6.14:

“Before authorising the use or conduct of a CHIS, the authorising officer should ensure that a risk assessment is carried out to determine the risk to the CHIS of any tasking and the likely consequences should the role of the CHIS become known. The ongoing security and welfare of the CHIS, after the cancellation of the authorisation, should also be considered at the outset” (emphasis added).

There is no evidence the ISC considered the provisions of RIPA 2000 during its examination of the Lee Rigby killing. It is not known whether Adebowale was the subject of an attempted recruitment or not but carrying out an assessment of Adebowale’s mental health may have been a requirement of any risk assessment if he had been.

What, if any conclusions can be reached from this short analysis? There is no question, that recruitment of agents is an invaluable resource for the agencies and law enforcement. Sun-tzu’s in The Art of War, described informants as ‘the Lord’s Treasure’ and his five categories of ‘spies’ included local and double agents. Their importance in the fight against terrorism and crime is unassailable. However, an attempted recruitment carries with it the obligations of authorisation, which in turn, triggers the need for effective risk assessment and oversight. The OSC in the context of non-agency public authorities was concerned “about the huge variation in the standard of risk assessments” and that there is an effective “firewall” between those with responsibility for security and welfare and exploitation of the source. The Adebowale case may point towards similar problems within the intelligence community. One further conclusion may also be possible and that is that there was a fundamental failure by the ISC to examine what must have been one of the critical questions the murder of Lee Rigby gave rise to.

© Simon McKay (2016). Please ask for my permission before using or copying the material contained in this blog. If you do, attribute it to me, with a link to the original content. This is opinion, not legal advice.

The Office of Surveillance Commissioner’s Report 2014 – 2015: a review

Sir Christopher Rose, former Chief Surveillance Commissioner, has published his last report. Those who have read his annual reports may think a fair epitaph of his tenure might be, to quote `Shakespeare, “no legacy is so rich as honesty”. Others could fairly observe that his reports have become increasingly more acerbic. This last report, attempting to find some neutrality, certainly holds no punches.

The oversight of undercover officers, or “relevant sources”, has “had a considerable impact” in terms of volume of work. This may be counter-balanced by the stark reduction in directed surveillance authorisations from the Department of Work and Pensions. The Commissioner hypothesises reasons for this – greater use of overt investigations, collaborative working etc. What Sir Christopher does not consider is whether it might have something to do with an interpretation of s 110(2) of the Social Security Administration Act 1992, which may provide a legislative basis for an inspector to conduct some form of covert surveillance in connection with inquiries into benefit fraud. The Department could be relying on the Code of Practice on Covert Surveillance and Property Interference, at paragraph 1.15:

“Similarly, an authorisation under the 2000 Act is not required if a public authority has another clear legal basis for conducting covert surveillance likely to result in the obtaining of private information about a person. For example the Police and Criminal Evidence Act 1984 provides a legal basis for the police covertly to record images of a suspect for the purposes of identification and obtaining certain evidence”.

There has been no ruling on the applicability of s 110(2) but its scope may have given the Department of Work and Pensions some confidence, though it may be misplaced.

It is now clear that in respect of undercover officers there will be some limited reporting. The number of authorisations notified, cancelled and applications for prior approval will be reported. In this reporting year there were 1095 notifications, 770 cancellations and 46 submitted for prior approval. The OSC emphasise these figures need careful interpretation: a single covert operation may deploy more than one undercover officer, for example.

Overall the use of covert policing resources overseen by the OSC is down and in the case of property interference and directed surveillance significantly down (by 598 and 1331 respectively). The use of CHIS by law enforcement is down, although there is a slight increase of use by non-law enforcement public authorities.

Irregularities were up slightly – there was nothing unusual about their nature – pre-emptive surveillance activity before the authorisation is in place, leaving listening devices on after cancellation and failing to authorise use and conduct. Sir Christopher identified no evidence that the irregularities were intentional or motivated by bad faith. Importantly, the Chief Commissioner recorded that “failure to obtain an authorisation under the Acts for which I have oversight is not unlawful”. This is by virtue of the operation of s 80 RIPA, dealt with here.

Unusually this year’s report identifies instances of misconduct involving non-compliance with RIPA. These were: (i) use of a commercial surveillance device; (ii) the deliberate extension of the parameters of an existing authority which resulted in the acquisition of material subject to legal professional privilege; and (iii) the fabrication of reviews of use and conduct authorities. The consequences have been catastrophic for the officers concerned. In Covert Policing Law & Practice the propriety of disciplining officers for “breaching” RIPA is questioned. There is nothing unlawful in undertaking surveillance activities without an authorisation. Much will turn on the nature of the charges but caution should be exercised.

Inspections in respect of relevant sources will not result in the “complete eradication of rogue, unregulated activity by an undercover officer [and] compliance errors are inevitable”. However Sir Christopher is of the view that the chances of this are significantly reduced. In respect of authorisations during the reporting period, two issues arose. First, the completion of risk assessments could be improved upon – many are formulaic and contain little of relevance about the risks to the officer based on the operational scenario. Second, there is no effective de-brief on cancellation. This is constant theme of the OSC’s reports albeit in respect of the range of Part II activity. Meaningful appraisal of a deployment is essential and it will be a core aspect of future annual inspections.

Sir Christopher has had little positive to say about the Protection of Freedoms Act 2012 in previous reports. In this, his final report, his conclusion is that “there is little evidence that” the introduction of judicial approval for local authorities carrying out directed surveillance “was a move for the good”. This is interesting, not least because the Investigatory Powers Bill essentially “rolls out” a scheme of prior judicial authorisation for a range of covert surveillance activities. He also laments the lack of training for magistrates.

A series of issues are identified where public authorities need to improve. These include:

– poor analysis of intelligence cases

– the use of formulaic language in relation to, in particular, the assessment of risk of collateral intrusion

– lack of effective assessment of proportionality

– cutting and pasting

– ineffective de-briefing on cancellation, including handling of product and recovery of technical equipment

– over reliance by AO’s on pre-prepared entries on the application form and a failure to consider properly necessity and proportionality

– the failure to authorise a CHIS promptly

– poor risk assessments,

– effective discharge of the duties and compliance with the requirements of s 29

– a lack of training

Curiously, Sir Christopher ends the narrative of his report by referring to public reassurance. He asserts “the public can be reassured that [Part II] powers are almost always used only when necessary and proportionate”. The strength of this statement is undermined in two ways. First, his suggestion that the media is misreporting improper surveillance activities, “we also continue to see media articles about the use of surveillance and other covert activities that could lead the public to assume that “Big Brother is alive and well”. This is a curious assessment of the present climate where the role of the press has been central to exposing systemic impropriety, indeed illegality on the part of the state. Second, the efficacy of the oversight scheme depends largely on what Commissioner’s are told. This weakness has been exposed in Chatwani, discussed here. It will inevitably lead to ever increasing calls for the introduction of judicial authorisation.

© Simon McKay (2016). Please ask for my permission before using or copying the material contained in this blog. If you do, attribute it to me, with a link to the original content. This is opinion, not legal advice.

Defining Surveillance

In his one of his greatest novels, J M Coetzee wrote, “the masters of information have forgotten about poetry, where words may have a meaning quite different from what the lexicon says, where the metaphoric spark is always one jump ahead of the decoding function, where another, unforeseen reading is always possible”.

It is not often a Nobel laureate can be cited in the context of a discussion about the otherwise dry subject of surveillance but it is apposite. The first edition of Covert Policing Law & Practice set out definitions of surveillance from a series of respected authorities but suggested that the activities of public authorities could “at least be constrained by the statutory definitions of surveillance that have been conceived for the first time in the United Kingdom by the Regulation of Investigatory Powers 2000 (RIPA 2000 or the 2000 Act)”. By the second edition, the words “although none is exhaustive” had to be added. This was as a result of an unlikely case emanating, not from the activities of the intelligence agencies or law enforcement, but South Oxfordshire District Council – more surprisingly yet – the target of the alleged surveillance was of an empty house. This case was one of two drivers behind this week’s blog; the other, the controversial assertions by the present government that mass surveillance or, as it is proposed it is known in the Investigatory Powers Bill, access to “bulk data”, is not in fact surveillance on the basis that, although it may be acquired and retained, it would only be examined in the event of an event that it made it necessary to do so. Surveillance is not defined in the Bill: RIPA is where we find a definition, such as it is.

RIPA creates an authorisation regime for two types of covert surveillance—directed and intrusive (this blog is only examining “surveillance”, not “covert” or specifically directed or intrusive surveillance). Section 48(2) provides that surveillance includes (so is not limited to) monitoring, observing or listening to persons, their movements, their conversations or their other activities or communications. It includes the recording of such activity and the use of a surveillance device (defined as ‘any apparatus designed or adapted for use in surveillance’) either wholly or in part to carry out any of the surveillance activity.

In Vaughan v South Oxfordshire District Council IPT/12/28/C, the local authority investigated the validity of a claim by Mr Vaughan for council tax relief. The key findings of fact were that (i) the purpose of the property inspections was to observe the state of the property to form a view whether the property remained uninhabitable and unoccupied, or whether it was inhabited by Mr. Vaughan as his sole or main residence; (ii) all the actions of the inspector at the property were directed to the proper purpose of gaining information about the state of the property and whether it was or was not occupied; (iii) the manner in which the inspections were carried out did not involve the monitoring or observing of Mr. Vaughan or any other persons at the property; (iv) the inspections were carried out openly, in daylight, and without any attempt to conceal the activity of the inspector from any persons who might be on the premises, or any neighbours or passers by.

The IPT held at paragraphs 16-19:

“The definition contained in s 48(2) is inclusive, not exhaustive, but it is clear from the context of the act that surveillance must be directed at persons. It is only if persons are the subject of surveillance that it is necessary to control the exercise of surveillance powers, and only if persons are affected by surveillance that any issue of interference with rights of privacy arises…s 26(9) refers to persons who are the subject of surveillance. It should be noted that s 48(2) provides that the monitoring or observation is of activities of persons, that is their movements, conversations, communications or other activities. So conduct which consisted solely of the observation or inspection of the property of a person, for example the inspection of an abandoned vehicle, would not in itself constitute surveillance.

“…Although s48(2) states that surveillance “includes” the monitoring and recording of the activities of persons, it is very difficult to envisage that there could be any surveillance which does not include some of such defined conduct. The way in which s48(2) is drafted means that conduct which has as its purpose such monitoring or observation would be surveillance within the meaning of the act, even if no actual monitoring of any persons took place. For example the observation of a deserted property, for the purpose of monitoring the activities of any persons who visited, would be surveillance. [Section] 48(2) might also encompass incidental acts, in addition to recording which is specifically covered at subsection 2(b), if such acts were done in furtherance of the purpose of observing or monitoring the activities of persons.

“…Thus in this context the word surveillance means acts of monitoring or observing the activities of persons. To ascertain whether there has been surveillance it is relevant to consider the purpose of the monitoring or observation, and the manner in which it is carried out.”

The absence of a definition was further emphasised in Re: a complaint of surveillance IPT/A1/2013, the IPT held that “the core activity of ‘surveillance’ itself is not defined in s.26, nor is it defined in s.48…s 48(2) refers to “surveillance”, but does not define it.”

The Tribunal reached four conclusions on s 48:

“First, the subsection refers to “surveillance” in (b) and (c), as well as in the opening words, in a manner that assumes that it has an accepted meaning. It was not considered necessary either to define or to describe it as such. Surveillance is essentially an intelligence gathering activity. It involves the use of various means. The person who is subject to surveillance is intended to remain unaware of those means and does not engage with the person secretly gathering the intelligence.

“…Secondly, the purpose and effect of the deeming technique in the drafting of s 48(2) is to provide that in Part II surveillance includes methods of intelligence gathering activities that might not be covered by surveillance in ordinary English usage. It may operate to amplify the ordinary meaning.

“…Thirdly, the common features of (a) (b) and (c) are that (i) none of them refers to the purpose of the activities described and (ii) all the activities described are different ways in which, for the purposes of Part II, intelligence about a person may be gathered without that person ever being aware of the means used: by monitoring, observing or listening to that person, or by recording those things in the course of surveillance, or by using a surveillance device. In brief, s 48(2) identifies particular aspects of the manner in which intelligence gathering may take place, without expressly defining surveillance itself, or providing when or where it takes place, or who is conducting it.

“…Fourthly, by s 48(2) (b) “recording anything monitored, observed or listened to” is surveillance, if such recording is of monitoring etc ‘in the course of surveillance.’ Thus, if the recording is not ‘in the course of surveillance’, it is not itself rendered surveillance by the subsection.”

Surveillance also extends to the interception of communications in the course of their transmission subject to the strict requirement that either the sender or recipient consents to the interception: RIPA, s 48(4)(a) and there is no warrant issued in connection with the interception. The circumstances when surveillance can amount to an interception of communications are rare (in Henderson and Marnoch v Her Majesty’s Advocate [2005] SLT 429 the Scottish Appeal Court appears to have fallen into error by considering a recording device attached to a telephone was an interception but I respectfully disagree)

Surveillance also excludes any conduct of a covert human intelligence source whether he or she is wearing a surveillance device or not or information disclosed in the presence of a source and the use of a source for obtaining or recording information: RIPA, s 48(3).

Nowhere in the definition is there a determinative requirement to consider, that which is obtained in fact. Indeed, it many cases it is quite impossible to do so. There is nothing in the recent Strasbourg jurisprudence on the acquisition of bulk data to suggest viewing the material was a pre-requisite to it amounting to surveillance: see Zakharov v Russia (Application no 47143/06, 4 December 2015) and Haasz and Szabo v Hungary (Application nos. 11327/14 and 11613/14, 13 January 2016). Bentham, not Coetzee was right perhaps, when he said, “all poetry is misrepresentation”.

The principles that can be identified from the decisions referred to are:

– surveillance includes the recording of activity, including a person’s movements, their conversations or their other activities or communications

– surveillance in RIPA terms is the surveillance of persons, not property

– it is not limited to technological means

– it is intended by those carrying out the surveillance that the subject is unaware the surveillance may be taking place.

– recording the subject, even if done covertly, is not of determinative importance: it is only relevant if it takes place during activity that amounts to surveillance in fact

– listening to or viewing the product of surveillance is not the test of whether surveillance has in fact taken place

© Simon McKay (2016). Please ask for my permission before using or copying the material contained on this blog. If you do attribute it to me with a link to the original content. This is opinion, not legal advice.

Lawful Surveillance

Arguably sections 27 and 80 are the most important provisions in the Regulation of Investigatory Powers Act 2000 (there are similar provisions for Scotland and Jersey) but which have not received the consideration they deserve and there is little judicial guidance. Some interest has been piqued recently as hidden away in schedule 8 of the Investigatory Powers Bill (that’s page 227 of the 299 page Home Office bundle published on the BIll) a similar provision appears.

Section 80 is in the following terms:

80       General saving for lawful conduct.

Nothing in any of the provisions of this Act by virtue of which conduct of any description is or may be authorised by any warrant, authorization or notice, or by virtue of which information may be obtained in any manner, shall be construed—

(a) as making it unlawful to engage in any conduct of that description which is not otherwise unlawful under this Act and would not be unlawful apart from this Act;

(b) as otherwise requiring—

         (i) the issue, grant or giving of such a warrant, authorisation or notice, or

         (ii) the taking of any step for or towards obtaining the authority of such a warrant, authorisation or notice

         before any such conduct of that description is engaged in; or

         (c) as prejudicing any power to obtain information by any means not   involving conduct that may be authorised under this Act.

Section 80 has been considered in a limited number of cases. In C v Police and Secretary of State, IPT/03/32/H, a case before the Investigatory Powers Tribunal the IPT said this at paragraphs 62 and 63:

“First, some general observations. Although RIPA provides a framework for obtaining internal authorisations of directed surveillance (and other forms of surveillance), there is no general prohibition in RIPA against conducting directed surveillance without RIPA authorisation. RIPA does not require prior authorisation to be obtained by a public authority in order to carry out surveillance. Lack of authorisation under RIPA does not necessarily mean that the carrying out of directed surveillance is unlawful.

“This is re­inforced by a general saving for lawful conduct in section 80 of RIPA.”

The IPT at paragraph 83 referred to the scheme under RIPA as a “voluntary system of self­ authorisation”.

There is other support for this view in the new Code of Practice on Covert Human Intelligence Sources, paragraph 2.10, “…public authorities are not required by the 2000 Act to seek or obtain an authorisation just because one is available.”

This is really fundamental. RIPA was created for the purposes of creating a framework for authorisation of – a legal basis for – covert surveillance in order to comply with the UK’s obligations under the European Convention on Human Rights. Those affected by alleged unlawful surveillance have the right to go to the IPT for redress. There is an argument that ought not to be the province of the criminal courts. Indeed in some cases the jurisdiction of the civil and criminal courts is ousted and the IPT is the only forum for the determination of complaints. Section 80 has a particular significance in relation to applications to exclude evidence and applications to stay proceedings.

Unsurprisingly the Office of the Surveillance Commissioner has had something to say about s 80. In his report for 2009-2010 Sir Christopher Rose, the former Chief Surveillance officer, said this:

“The fact historically, there has been no legal challenge to the way in which a public authority conducts its covert procedures does not mean that the procedures are unchallengeable, nor is the absence of such a challenge mitigation for poor compliance. On the contrary, if a challenge is made, it is unlikely that a trial judge will be sympathetic to an argument that the public authority was entitled to do things in its own way if that way is at variance from published OSC guidance or comment in an OSC inspection report. The purpose of my inspection is to highlight the risk of being challenged for non-compliance. It is not acceptable to act in a non-compliant way unless caught. [RIPA] requires certain activity to be authorized by competent staff and it should be.”

This is an interesting observation since there is no reported case where a trial judge was in fact assisted by s 80 in exercising his or her discretion. Furthermore, insofar as it may assist, this has to be in favour of not excluding evidence since, as the provision makes clear (well as clear as RIPA makes anything clear), unless something is otherwise unlawful by virtue of the Act no conduct will be unlawful as a result of a failure to obtain an authorisation. For this reason alone, there is an argument that it should form part of the prosecutor’s armoury when meeting defence challenges. All that said, the Chief Surveillance Officer is quite right to emphasise that notwithstanding s 80, authorisations should be sought where appropriate. However this is for the purposes of compliance: to avoid adverse rulings before the IPT and for the purposes of annual inspections.

This leads conveniently to s 27. It provides:

27       Lawful surveillance etc.

         (1)Conduct to which this Part applies shall be lawful for all purposes if—

         (a)an authorisation under this Part confers an entitlement to engage in that conduct on the person whose conduct it is; and

         (b)his conduct is in accordance with the authorisation.

        (2) A person shall not be subject to any civil liability in respect of any conduct of his which—

         (a)is incidental to any conduct that is lawful by virtue of subsection (1); and

         (b)is not itself conduct an authorisation or warrant for which is capable of being granted under a relevant enactment and might reasonably have been expected to have been sought in the case in question.

        (3)The conduct that may be authorised under this Part includes conduct outside the United Kingdom.

         (4)In this section “relevant enactment” means—

         (a)an enactment contained in this Act;

(b)section 5 of the Intelligence Services Act 1994 (warrants for the intelligence services); or

(c) an enactment contained in Part III of the Police Act 1997 (powers of the police and of officers of Revenue and Customs)

To be clear s 27 creates a shield against allegations of non-compliance where (a) an authorisation has been obtained and (b) the conduct engaged in stays within that authorised. Note it is lawful for all purposes. It has not been tested yet whether this acts as an estoppel or prohibition to an application by the defence to exclude under s 78 but on the face of it, that may be its effect. Of course, it may require a determination of whether the conduct has stayed within the limits of the authorisation but it remains a proper resource open to prosecutors to use.

It almost certainly will involve some disclosure of authorities. The Court of Appeal has recently held in R v Palmer [2014] EWCA Crim 1681 that, subject to the usual test for disclosure being met, there is nothing wrong with this in principle, subject of course to redactions.

The judiciary has not grappled with sections 27 and 80 in any detail. Mr Justice Tugendhat in the case is AJK and others v Commissioner of Police for the Metropolis and others [2013] EWHC 32 (QB) at paragraph 167 said this, “[there is a] distinction drawn between lawful conduct (which, by s.80, does not require authorisation) and unlawful conduct, which does require authorisation, if it is to become lawful pursuant to s.27. This distinction raises difficult issues, some of which were not canvassed in argument before me”.

This with respect to the learned judge – who in any event makes it clear the provisions are complex – may not be correct. Section 80 does not make it a requirement to authorise or take steps to authorise any conduct before it is engaged in. Unlawful conduct remains unlawful – this does not include surveillance or use and conduct of CHIS – it does not make it unlawful to engage in such conduct nor does it make it a requirement to seek authorisation. An authorisation for the purposes of s 27 makes it lawful for all purposes (including criminal proceedings) providing the conduct stays within its boundaries.

Worryingly none of the reported decisions on applications for the exclusion of evidence and stay of proceedings refer to the provisions. As to the former, the position remains that a breach of Article 8 does not give rise to grounds for exclusion: for the most recent decision on this in the context of alleged breaches of RIPA see: R v Khan and others [2013] EWCA Crim 2230. As to the latter, the principles for staying proceedings have been most recently re-stated by the Supreme Court in R v Maxwell [2010] UKSC 48. Alleged breaches of RIPA fall into the Category 2 cases. The principles are: (i) the threshold is very high; (ii) it requires an evaluation of the competing interests where the court must weigh in the balance trying those who commit offences and not conveying the impression the end is justified by any means; (iii) a stay should not be used as a disciplinary sanction; (iv) there has to be an abuse of executive power amounting to illegality; and (v) the nature of the conduct must usually be deliberate, negligent or reckless conduct would not normally be enough to reach the threshold.

What is clear is that an understanding and application of s 80 may defeat an allegation of illegality and is a complete answer to any attempt to meet the already high threshold in cases where a stay is sought. Again this has yet to be decided.

There is one caveat. In cases where entrapment is or may be alleged, compliance has been identified as an important aspect of the test for a stay: see R v Moore and Burrows [2013] EWCA Crim 85.

Key practice points arising out of the provisions and cases are:

  1. A failure to authorise surveillance or use and conduct of CHIS does not in principle give rise to unlawfulness.
  2. It is however an issue of compliance.
  3. Where allegations of unlawfulness are made the court should be referred to ss 27 and 80.
  4. A properly authorised operation that has stayed within its limits should prevent an application for exclusion under s 78 PACE.
  5. An unauthorised operation is unlikely to meet the criteria for an application to stay proceedings but special consideration is required in cases where allegations of entrapment arise.

© Simon McKay (2016). Please ask for my permission before using or copying the material contained on this blog. If you do attribute it to me with a link to the original content. This is opinion, not legal advice.

Interception of Prison Telephone Calls

In R v Knaggs [2015] EWCA Crim 1007, a recent interim judgment, giving directions, the Court of Appeal identified the issues that arise out of the use by police and prosecuting authorities of prison intercept.

The interception of prison communications may be lawful under s 4(4) of the Regulation of Investigatory Powers Act 2000, if it is conduct in the exercise of any power under s 47 Prison Act 1952 (s 39 Prisons (Scotland) Act 1989 or s 13 Prison Act (Northern Ireland) 1953). The Investigatory Powers Bill mirrors the provision in clause 37. There are rules issued under the 1952 Act, the Prison Rules 1999 as amended by the Prison (Amendment) Rules 2000, the Prison (Amendment) (No 2) Rules 2000 and the Prison (Amendment) Rules 2002.

The Crown Prosecution Service has issued Guidance in relation to the interception of inmates’ letters and calls. It must only be done with the Prison Service’s consent, any letters or recordings should be handled in a proper evidential manner, compliant with section 27 Criminal Justice Act 1988 and produce a statement from the relevant prison officers. In any case where an interception has taken place, the Chief Crown Prosecutor should be notified and a decision taken by him or her as to whether there is a need for it to be used as evidence.

If the interception is not properly authorised, then the product will be unlawful and inadmissible.

The provisions were considered in R v Abiodun [2005] EWCA Crim 09, an appeal against convictions for conspiracy to commit false imprisonment and blackmail. The Court of Appeal examined exhaustively the provisions both under RIPA, the Prison Act 1952 and the relevant Rules and was satisfied that the interception of prisoners’ communications was in accordance with law, necessary and proportionate. In Mahmood and Khan v R [2013] EWCA Crim 2356 the appellants argued that a general or blanket policy of interception within the prison system was outside the scope of section 4(4) since rule 35A of the Prison (Amendment) (No 2) Rules 2000 required the issue of interception of prisoners’ communications to be considered, not against the prison population at large, but on the basis of the individual prisoner’s classification. The Court of Appeal dismissed the appeal holding that the ‘class’ of a prisoner could be inferred from the type of prison they were held in and rejected the restricted interpretation advanced by the appellant’s as unpersuasive.

The Interception of Communications Commissioner provides non-statutory oversight of the interception of communications in prisons. His 2013 Annual Report expressed concern about the number of Prison Service Instructions on the subject, which he considered ‘fragmented and contradictory in places’. The Commissioner made a significant number of recommendations and noted that ‘[overall] the proportion of prisons achieving a good level of compliance has steadily risen’. He also opined that it would be preferable for oversight of prisons by his office to be formalized as a statutory function, although it appears that this is not proposed in the Investigatory Powers Bill.

The Court in Knaggs referred to Abiodun and Mahmood and Khan, although the issues in the case are quite different.

The issues that will be explored in due course are likely to include whether there has been compliance with the Prison Rules 1999 as amended and if not, what the implications of this are for the product generated. This distinction appears to have been lost on Crown’s witness at least at the date of the hearing. The extracts from the witness statement referred to in the judgment appears to look at the issue from a Mahmood standpoint: i.e. there is a policy, it has held to be lawful and it has been applied. The Court will assess in due course whether there has been compliance with the requirements the Rules impose on the governor. There are at least two requirements of significance.

The first is that, notwithstanding the overall lawfulness of the policy, there is still a requirement on the part of the governor to be satisfied whether in the case of an individual or class of prisoners that the interception is necessary (by reference to the grounds upon which an interception can be authorised) and proportionate. The wording of the Rules implies that this involves a reasoned decision at the time consideration is given to whether to intercept or not but the Commissioner’s reports makes it clear that such a decision is required (see the relevant extracts from the 2013 Report, in particular, paragraph 7.23). A risk assessment should exist in respect of the decision to intercept. This would be a key document in determining the lawfulness of the governor’s conduct and disclosure of it should be axiomatic.

The second is the requirement on the part of the governor to “arrange” for a permanent log to be kept of the prisoner’s communications under rule 35B(1). This does not include the content of the communications. If so, then the governor must direct his mind specifically to the requirements of rule 35C before disclosure can be made of the material.

There appears to be three bases upon which disclosure can then take place. First, where the governor determines it is necessary (by reference to the grounds upon which interception can be authorised) and proportionate. This requires a reasoned decision to be made at the point in time when disclosure is being contemplated. The Crown ought to produce this rationale. The other two bases, requires the consent of the persons affected. In relation to the log, if the decision to disclose was not necessary and proportionate, it could only lawfully be disclosed if the prison consented.

Where there is retained intercept material, there needs to be a reasoned decision at the three months point to continue to retain it and thereafter, at three monthly intervals.

The Court of Appeal in Knaggs is likely to derive some assistance from Her Majesty’s Inspectorate of Prison’s report into prison communications. This was prompted by concerns over the interception of communications between prisoners and their MPs. It identified serious and significant shortcomings and failings.

There are a number of practical points that can be identified even at this interim stage:

  1. It is essential there is compliance with the obligations under the 1952 Act and Rules otherwise the interception will be unlawful and inadmissible.
  2. Demonstrating compliance may be important: see Knaggs at paragraph 15, the difference between the duty to disclose material that might assist demonstrating a lack of lawful authority on the one hand, and on the other hand proving a positive case of lawful authority in respect of which the court had no power to direct the evidential content of.
  3. The prosecution ought to aspire to deal comprehensively with requirements of the rules and disclose evidence of non-compliance.
  4. The evidence should deal with the following: any relevant extracts from the Prison Manual; deal with the decision to intercept (a) prisoner; or (b) class of prisoner; the risk assessment; the log; the decision to disclose; the question of consent if appropriate; the decision to retain the material; details of the three monthly reviews thereafter; and any adverse findings from previous inspections

© Simon McKay (2016). Please ask for my permission before using or copying the material contained on this blog. If you do attribute it to me with a link to the original content. This is opinion, not legal advice.

Communications Data and Journalistic Sources

During the investigation in 2012, called Operation Alice, into what became known as “Plebgate”, the Metropolitan Police Service obtained a total of four authorisations for communications data targeting journalists working for The Sun newspaper for the purposes of identifying their sources. In 2014 the Metropolitan Police published its closing report on Operation Alice, which disclosed for the first time, that communications data had been obtained. When made aware of this, the journalists complained to the Investigatory Powers Tribunal. The IPT published its judgment in News Group Newspapers Limited and others v The Commissioner of Police for the Metropolis [2015] UKIPTrib 14_176-H on 17 December 2015.

The facts are extremely well known. On 19 September 2012, it was alleged that Andrew Mitchell MP referred to officers from the Metropolitan Police’s Diplomatic Protection Group as “plebs” during an altercation at the gates to Downing Street. Two days later the story appeared on the front page of the Sun newspaper. Eventually, Mitchell had to resign his ministerial position. Criminal, disciplinary and civil proceedings followed. One officer was charged with and pleaded guilty to misconduct in public office, three officers were also dismissed although Mitchell in fact lost an action for damages, the court ultimately concluding that the officer he verbally abused was substantially telling the truth. The IPT case concerned the investigation that followed in the aftermath of the incident.

The principal conduct that it was said gave rise to the need for the use of covert resources was: (i) a call by officer G to the Sun’s news desk on the evening of the incident reporting what had occurred; (ii) disclosure of the police log by officer G the following day; (iii) an email from Mr W, also the following day, purporting to be a constituent of Sir John Randall, the Deputy Chief Whip of Mitchell’s political party, who claimed he had witnessed the incident; and (iv) a call, again the day after the incident, to the Sun’s news desk by the partner of another officer, again by someone who purported to be a witness, this time claiming they had heard Mitchell refer to the officers as “morons” (although details of this call were not known to the Metropolitan Police until 4 June 2013, when the Sun disclosed it during legal proceedings).

The Directorate of Professional Standards launched an investigation following the leaks to the press. In its early stages it was not considered the leak necessarily amounted to a criminal offence. However the position changed in December 2012 when the veracity of the email from Mr W was questioned. CCTV from Downing Street was checked and it became clear that there were no witnesses to the exchange between Mitchell and the officers. Mr W turned out to be a police officer and member of the Diplomatic Protection Group. He was arrested on 15 December 2012. Two days later an application was made for authorisation to acquire and or use communications data from W’s telephone. On the same day the case was referred to the Independent Police Complaints Commission. By 22 December 2012 the Senior Investigating Officer considered the objective of the operation to be to ascertain whether “there [was] a conspiracy between W and any other office”. The same day he requested authorisation to obtain the communications data of two Sun journalists. These were authorised the following day. They identified officer G had, contrary to his account to investigators, been in touch with the journalists.

On 14 March 2013 a further application was authorised against another journalist. The application had in fact been prepared and submitted in the previous January. No explanation was provided for the delay. On 4 June 2013 it emerged that a document in the related legal proceedings between Mitchell and the Sun pleaded a further call from a witness on the day after the incident. Two days later an application for further communications data was granted, this time in respect of the newspaper’s news desk. This yielded information suggesting that the partner of a further Diplomatic Protection Group officer, J, had made the call. She was later arrested.

On 26 November 2013 the Crown Prosecution Service announced it would charge officer W, but no other officers, with misconduct in public office.

On 6 February 2014 the IPCC published its overview of the investigation and recommended misconduct proceedings in respect of some of the officers who had been involved. In September that year the Metropolitan Police Service published its closing report. This revealed for the first time that it had obtained the communications data of one journalist and the Sun’s news desk. On 27 November 2014 Mitchell lost his legal action against the Sun, the court concluding that the “toxic phrases” attributed to Mitchell were substantially true.

The challenge to the lawfulness of the communications data authorisations has resulted in the first ever published decision on the provisions of ss 21 and 22 of the Regulation of Investigatory Powers Act 2000. The former provides for the lawful acquisition and disclosure of communications data providing, amongst other things, there is an authorisation in place and it is complied with when the communications data is obtained and disclosed. The latter provides for the grounds that must exist before a person designated (holding the rank of Superintendent) can authorise its acquisition and disclosure. These include the prevention and detection of crime and the designated person must be satisfied authorisation is necessary and proportionate.

There is a Code of Practice. At the time of the incident, an earlier version was in force. This set out a number of requirements, including, that a designated person should have a current working knowledge of human rights principles and should not as a general principle authorise in cases where he or she has direct involvement. An authorisation should specify the purpose for which the acquisition and/or disclosure of communications data is authorised but does not have to specify the reasons for granting the authorisation. There was no provision for protecting journalistic information or sources. When the Code was revised in March 2015 express provision was made for the protection of journalistic sources. Where communications data is sought of this nature, relevant public authorities must make an application for judicial authorisation under the Police and Criminal Evidence Act 1984 unless there is an immediate threat to life.

The authorising officer in the case was officer H. He provided a witness statement confirming he had a working knowledge of human rights principles but did not have a clear appreciation of the extent of the legal duty to protect journalistic sources. He had no previous experience of applications of the present nature, had not received legal advice or training in handling applications where journalistic sources may be revealed. He provided a witness statement setting out the reasons why he authorised the applications in the case.

There was little difference between the first two applications. Both referred under the heading “necessity” to the investigation of the offence of misconduct in public office whereby officers were suspected of passing information to the media. Under the heading “proportionality” it referred to the seriousness of the offence, that the case had “gone to the highest levels” and whether an officer had been in touch with a journalist or that a journalist had contacted an officer. Interestingly, under “collateral intrusion”, reference was made to journalistic privilege and the fact that data relating to “a lot of family and friends” and details of “high profile people” would be acquired. When authorising it, officer H had regard to the “high profile investigation” and the absence of any less intrusive way to conduct the inquiry. The third authorisation was based on a broadly similar rationale. The fourth identified the new information revealed during the course of the litigation and that its purpose was to identify the third party who had also claimed to be a witness. It was said that it considered the encroachment on journalistic privilege but this was justified when “balanced against the seriousness of the allegation”. This again was authorised notwithstanding that the telephone number was one used specifically for “whistle-blowing” and that journalistic sources would likely be identified. These factors were outweighed by the seriousness of the offence.

The issues before the IPT were essentially two-fold. First, there ought to have been judicial pre-authorisation for the lawful acquisition of communications data that might reveal a journalistic source. This was by virtue of jurisprudence emanating from the European Court of Human Rights. Second, on the facts of the case, the authorisations were neither necessary nor proportionate for various reasons, including the availability of other legal mechanisms to obtain the data (for example, under PACE).

The question for the IPT was whether the Article 10 (freedom of expression) rights of journalists had as a matter of law been infringed. This was an objective question that did not depend on procedural propriety of the decision-making process or the adequacy of reasoning by the designated person. Inadequacy of reasoning could not, held the IPT, amount to a breach of a Convention right of itself.

There were criticisms that could be made of the analysis of necessity and proportionality in the authorisations. These included that the reasoning was not entirely clear in some respects and there were some material errors and the important principle of the need for an overriding interest to justify the obtaining of data that would reveal a journalist’s source was not properly articulated. The IPT was however satisfied that officer H had approached the applications conscientiously and exercised independent judgment in respect of them. More interestingly, the Tribunal held that the threshold of necessity had been met as the applications were made “for the purpose of investigation of a serious criminal offence, namely a conspiracy by a number of police officers in the [Diplomatic Protection Group] to discredit a government minister”. Although in respect of the first and second authorisations officer H had referred to “corruption between the MPS officers and the press” conspiracy is not mentioned. Nor was there any intelligence to suggest the press were complicit. Indeed on 6 March 2014 one of the journalists had provided a statement to the investigators expressly denying any wrongdoing. Moreover, it appears that the former Director of Public Prosecutions, Sir Keir Starmer’s observations in the case of Damien Green MP, had been largely ignored. Nor is it clear that the ingredients of the offence were made out. However, the IPT was satisfied that there was nothing in the attack on the decision in these respects. It was satisfied that officer H honestly and reasonably believed that grounds existed for the authorisation to be granted.

Despite being satisfied of the propriety of the investigation, the IPT held that the third authorisation was not necessary or proportionate. The investigation team already knew the underlying information upon which it was based. There was a failure to disclose information that might militate against granting the authority (in this case the fact that the identity of officer G was already known) The IPT referred to its decision in Chatwani v National Crime Agency [2015] UKIPTrib 15_84_88-CH, discussed here, and concluded there had been a failure in the duty of candour.

Consideration was then given to the requirement for prior judicial authorisation. There was a further two issues: (i) whether the police should have applied, not under RIPA 2000 but under s 9 of PACE 1984 for communications data; and (ii) whether disclosing the data in the manner it did, the Metropolitan Police Service breached Article 10 of the European Convention on Human Rights.

It was not in issue that the police could have sought an order under s 9 PACE. The new Code requires the police to do so in the absence of a threat to life. Although in 2013 the Code did not include this requirement an application under s 9 PACE would have been practicable and would have ensured the necessary judicial authority for communications data that might reveal a journalist’s source. The IPT accepted that RIPA was at the time of the investigation considered to be the appropriate means for police to obtain the data but reminded itself that the issue of proportionality had to be judged objectively and the mere fact that RIPA seemed the most apposite mechanism did not answer the complaint. In the end the IPT accepted the police position – namely that the proportionality of the conduct engaged in was not affected by the means used – since on the complainant’s view, alternative means existed that could have been used to obtain the data. This does not appear to consider the procedural protections the alternative means provided but the IPT was of the view that such arguments were unsustainable.

Proportionality was distinct from legality. The question arose as to whether the procedure under s 22 adequately safeguarded Article 10 rights. This in turn raised a fundamental issue, namely, whether judicial pre-authorisation was necessary or if not, is s 22 sufficiently precise and subject to safeguards such that they are sufficiently prescribed by law. An analysis followed of the competing authorities from Strasbourg and the United Kingdom. In summary, the IPT held that the principle of legal certainty was met in s 22 since it required an evaluation of necessity and proportionality and is reviewed by an independent Commissioner and in the event of complaint the IPT. However, it was concerned that journalistic sources were not at the relevant time subject to additional safeguards. The IPT held the “real difficulty is that the safeguards in place in 2013 did not include any special provisions designed to provide effective safeguards in a case which directly affected the freedom of the press under Article 10”. There was no stricter test or heightened scrutiny in existence distinguishing an investigation disclosing journalistic sources as against any other kind of investigation that did not.

In the absence of such scrutiny it was necessary to examine what protections existed in fact. Authorisation was not independent of the public authority and in any event fell short of independent judicial scrutiny. Oversight by the Commissioner or even the IPT would not prevent disclosure of the data. This was in contrast with a judge in a criminal trial and his or her power to exclude the evidence in appropriate circumstances. There was no duty to notify the Commissioner in advance, nor a requirement to notify the subjects of the fact their data had been acquired. For these reasons the scheme prior to the new Code coming into force in March 2015 was incompatible with the Convention.

This is a complex and important decision. It gives rise to a number of concerns over and above those dealt with in the judgment. The first is the indication by the Home Secretary’s counsel that the Investigatory Powers Bill will require all applications of this nature to “be authorised by a judicial commissioner”. This is incorrect. Clause 61 of the Bill envisages, a form of Commissioner approval, not authorisation. Moreover, it appears that the Bill previsions a move away from the use of s 9 PACE and a reversion back to the use of covert methods by authorisation under the proposed legislation. Second, the judgment highlights, as I mention in Covert Policing: Law & Practice, the “inadequacy of RIPA on the basis that it fails to consider freedom of expression within its provisions as a basis to engage in covert surveillance”. Third is the risk that investigations such as those engaged in during Operation Alice have been prolific. There is some anecdotal and empirical evidence supporting this, including the findings of the Interception of Communications Commissioner, in respect of the use of s 22 by Police Scotland to acquire details of journalistic sources. Under the new Bill the acquisition of communications data in such circumstances could constitute an offence. Finally it is likely that this type of investigation will form part of the Law Commission’s review of the law surrounding breaches of protected government data.

A number of key practical principles arise from this decision:

– applications for authority need to be precise and accurate

– the people preparing and authorising them need to be properly trained

– testing the knowledge and training of officers is an entirely permissible line of cross-examination

– there is likely to be a difficulty justifying an authorisation where there has been a significant delay following its submission

– a failure in the duty of candour is always going to be taken seriously and may have a catastrophic effect on the outcome of the authorisation process

– caution is always required in cases where the risk of acquiring confidential journalistic data, particularly their sources, arises

– in cases post-March 2015 RIPA 2000 should not be used unless there is a real and immediate threat to life which necessitates its use

– cases prior to March 2015 are likely to have been conducted in breach of Article 10 of the Convention – even where the journalist is unaware of the acquisition of the data – consideration may need to be given as to what, if anything, a public authority should do in response to this

© Simon McKay (2015). Please ask for my permission before using or copying the material contained on this blog. If you do attribute it to me with a link to the original content. This is opinion, not legal advice.

Covert Surveillance and Legal Professional Privilege: a view from the European Court of Human Rights

The case of Re: McE (Northern Ireland) [2009] UKHL 15 which led to the introduction of the Regulation of Investigatory Powers (Extension of Authorisation Provisions: Legal Consultations) Order 2010 and, in part, the revision of the Code of Practice on Covert Surveillance has been considered recently by the European Court of Human Rights in the case of RE v United Kingdom [2015] ECHR 947.

The facts giving rise to the domestic decisions were unusual.

A solicitor was arrested for and later charged with various offences arising out of his consultations with clients at a police station in Northern Ireland. The evidence in the case was derived from covert listening devices placed in the station interview room. Following this, solicitors attending police stations to advise clients, sought assurances from the police that their consultations would not be the subject of covert surveillance. The police refused and judicial review proceedings were issued seeking a declaration that the police were acting unlawfully. The High Court held that the Regulation of Investigatory Powers Act 2000 permitted the surveillance notwithstanding the statutory right for a lawyer to consult privately with a client. RIPA provided for two forms of authorised surveillance – intrusive surveillance and directed surveillance – of these, covert surveillance of legal consultations was being treated as directed surveillance. The court held that because of the fundamental nature of the right of a detained person to consult a legal adviser privately the safeguards applicable to authorisations for intrusive surveillance should apply. The House of Lords agreed and, following this, the 2010 Order was introduced.

The facts in RE were broadly similar to those in McE but occurred later. RE, who was a vulnerable detainee, had been interviewed a number of times by the police. On the last occasion, his solicitor sought assurances the consultation was not subject to covert surveillance. The police elected to neither confirm nor deny surveillance was being carried out. An application for judicial review was dismissed and permission to appeal refused. RE applied to the European Court of Human Rights.

The court in Strasbourg recited the legislative regime under RIPA and the Codes of Practice extensively. In relation to legal privilege, it is worth re-stating a number of key parts of the Code:

– The definition of legal consultation in the 2010 Order does not distinguish between consultations that are privileged in whole or in part. Those that may be in the furtherance of a criminal purpose are not protected by the privilege.

– The definition of legal privilege is found in s 98 of the Police Act 1997 (and s 10 of the Police and Criminal Evidence Act 1984)

– All applications for covert surveillance should expressly state whether it might result in the acquisition of material covered by the privilege and what the steps are to mitigate the risks of acquiring it (for the implications where this does not happen, see Chatwani, which I discuss here).

– Where it is likely or intended that the operation will acquire privileged material exceptional and compelling circumstances must exist before authorization is possible. These include a very restricted range of cases (such as threats to life and national security where it is likely to yield intelligence necessary to counter the threat)

– Material subject to legal privilege is not admissible evidence.

– Organisations carrying out surveillance where the acquisition of material subject to legal privilege is likely must have access to independent legal advice (not the CPS)

The Police Service of Northern Ireland has its own policy for dealing with the acquisition of privileged material. The European Court of Human Rights considered it was an important layer of protection in this area. It is a useful blueprint for other investigative organisations that may not yet have a similar policy.

The applicant argued that the quality of the law was deficient in this area and that the nature of the covert surveillance did not pass the test of necessity for the purposes of Article 8.2. It was argued that comparatively, the scheme in respect of interception of communications was a useful benchmark: if this was correct the current framework for covert surveillance was inadequate. The government’s position was, that even if the standards applicable to interceptions ought to be applied, which it resisted, the present regime still satisfied them.

It was not disputed that RIPA 2000 and the Code of Practice provided a legislative basis for the conduct of covert surveillance by the state. In Kennedy v United Kingdom [2010] ECHR 682 the court had examined in detail the Act and Code insofar as they related to the interception of communications and found no violation of the Convention.

On the question of whether covert surveillance of privileged consultations should be subject to a less strict regime, the European Court of Human Rights, held that the decisive factor was not the type of resource used but the level of interference. In cases of covert surveillance where privileged material is likely or intentionally to be acquired the level of interference was analogous with the interception of communications. Notwithstanding this, the court was of the view that the framework that existed under Part II of RIPA 2000 was sufficiently clear. However, the failure to have the policy in place during the period when the applicant was detained resulted in a breach of the Convention.

There was a secondary issue raised on the application relating to the covert surveillance of consultations between vulnerable detainees and appropriate adults. No special provision over and above that provided for in Part II of RIPA 2000 was required.

This is the latest decision on covert surveillance and the acquisition of legal professional privilege. The leading domestic decision remains R v Grant [2005] EWCA Crim 1089 (stay of indictment arising out of deliberate acquisition of privileged conversations at the police station) although the correctness of this has been questioned in Warren v Her Majesty’s Attorney General of the Bailiwick of Jersey [2011] UKPC 10. There remains a tension between the current decisions. However, whilst there is now the highest authority permitting, in principle, covert surveillance of legal consultations, to do so remains an enormous challenge operationally. Considerable caution needs to be exercised. Of particular interest is the question of retention and disclosure of privileged material for the purposes of any subsequent criminal proceedings (one of the difficulties arising in Grant). This may have irresolvable implications where surveillance has taken place in the belief that the consultation is in the furtherance of a criminal act but in fact on review is not.

There are a number of practical implications arising out of this judgment:

– The law has always recognized that covert surveillance may incidentally pick up material covered by privilege. There must be a proper assessment of the risk and evidence of reporting it to the Commissioner where it has been acquired.

– It is a mandatory requirement under the Code of Practice that public authorities have a policy and officers have access to legal advice (either an in-force resource or access to independent counsel). In RE v UK, the existence of the policy was an important safeguard.

– But see the cautionary case of R (on the application of S an others) v British Transport Police [2013] EWHC 2189 (Admin)

– Covert surveillance to deliberately acquire legal professional privileged material can only take place in limited circumstances – where there is a real and immediate threat to life or in cases involving national security and even then, only where it is reasonably believed it will counter the threat.

– The distinction is between the monitoring of privileged consultations, which is, in limited circumstances capable of being authorized and the use of the privileged material as evidence, which is not permissible.

© Simon McKay (2015). Please ask for my permission before using or copying the material contained on this blog. If you do attribute it to me with a link to the original content. This is opinion, not legal advice.