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www.rahmanravelli.co.ukSerious Fraud, Regulatory and Complex Crime Lawyers.

Rahman Ravelli are Specialist Panel Members (Fraud and VHCC)able to undertake the most complex of cases

INFORMATION BRIEF COVERT SURVEILLANCE DEFENCE

Front line defending in cases involving covert policing tactics

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www.rahmanravelli.co.ukINFORMATION BRIEF COVERT SURVEILLANCE DEFENCE

TYPES OF COVERT SURVEILLANCEThere is a dazzling array of weapons available to the law enforcement authorities these days from simple well known techniques, such as use of informants and undercover officers to sophisticated listening devices. The use of technology by law enforcement agencies is bound to increase as science establishes more and more ways for our privacy to be violated. Even, as long ago as 1995 there were said to be 1300 police bugging operations. Today there are around 4 million CCTV cameras watching us – with around 500,000 of those in London alone. The use of Automatic Number Plate Recognition (ANPR) evidence is now almost routine evidence in criminal trials that involve an element of surveillance evidence. The ‘big brother is watching’ culture is truly in form !

It is our experience, that in many types of investigations, e.g. large drugs conspiracy investigations, Serious Fraud , Human Trafficking, Money Laundering and so on, the use of ‘bugs’ is now an almost routine part of the police process. There is no doubt

that this technology, deployed properly, is a useful tool in the State’s fight against serious crime. The concern is where such surveillance becomes routine or where the authorities simply cut corners and use surveillance improperly.

It is not just listening devices that are being used more and more often. Police work is increasingly intelligence led and transforming ‘intelligence’ into concrete evidence often requires the implementation of a covert evidence gathering operation. In addition to listening devices the police may also use the traditional simple following of suspects – or nowadays perhaps the fixing of a global positioning tracking device on the underside of a suspect’s car – the ‘tracker’. The authorities are understandably guarded about what technologies they have at their disposal though we are all aware of the more obvious types such as trackers and bugs. Suffice to say that they do not only exist in 007 movies, they are very real in our everyday lives. However, other technological advancements also make it at least possible for the police to listen into conversations

INFORMATION BRIEF – COVERT SURVEILLANCE

“…What clients want to know from us is can ‘can covertly obtained material be excluded’? The answer, in principle, is ‘yes’. Of course it all depends on the circumstances of the case… This will inevitably involve human rights arguments and, very likely, PII too…”

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without a probe being inserted into the building where the suspects are having a discussion. This is through range equipment and laser devices.

There is software available now that enables an operator to track a mobile phone even when it is not in use. This means that the days of mere cell-site analysis where telecommunications providers informed the police, after the event, where a phone roughly was when it made a particular phone call may be well and truly over. Although there does not appear to be any concrete evidence that this software is already in use by the police, the popular belief is that this technology is nonetheless used to keep an eye on the whereabouts of individuals the authorities are interested in.

There have also been reports (Guardian 30/10/11) of the Metropolitan Police using surveillance produced by a Leeds based company that counts the US Secret Service and the Ministry of Defence on its client lists. The technology is a device that can be used to emit a signal over an area of up to an estimated 10 sq km which forces phones in that area to release their IMSI and IMEI identity codes so enabling tracking in real time.

There is also the use of technology to monitor computer and web activity and e-mail correspondence by GCHQ in Cheltenham. There is much speculation about the Government’s capability and intent in this area but little by way of hard facts. However, if there is any doubt that the authorities are interested in violating our right to privacy then just consider the fact that at HMP Woodhill listening devices were said to have been placed in the table legs of tables in consultation rooms used by lawyers in legal visits with their clients. This, without a

doubt, is wrong on so many levels, not least of all the blatant disregard for client-lawyer confidentiality. Even an MP, Sadiq Khan, was bugged whilst visiting a constituent of his (Daily Telegraph – 09/02/2008). It is excess like these that defence lawyers must be alive to and be prepared to challenge the police/NCA etc and make them accountable for their actions.

Perhaps the most Orwellian surveillance of all is the simple use of telephone and postal mail intercepts. The law on this is set out below. The fact is that the State is everywhere, they can find you, they can listen to you – they may even have a bug in your home or your cell right now – they can hear you and track you down by your use of your mobile phone and they can see where you have been from your credit card records and your welfare benefit claims and so on. Where does it all end – can your privacy be violated at a whim – can your private words to your friend or you wife be used against you in a public court-room?

POLICE PROCEDURE – SURVEILLANCE AUTHORITIESFor many years surveillance, particularly surveillance using technical means were not subject to proper safeguards and checks. Infact it was only the interception of post and telephone calls that was subject to any statutory regulation and then only since 1985 with the Interception of Communications Act 1985 (IOCA). The only reason IOCA was introduced was because of a human rights challenge in Strasbourg (Malone v UK [1984] 7EHRR 14). Bugging operations for example were subject only to a 1984 Home Office document; ‘Guidelines on the Use of equipment in Police Surveillance Operations’. It was not until February 1999 when the Police Act 1997 came

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into force that a proper statutory basis for the authorisation of such operations was finally established.

The 1997 Act introduced a statutory scheme of authorisation for law enforcement agencies to effect covert entry upon property or interfere with wireless telegraphy – thus the officers could not be sued for trespass or prosecuted for criminal damage or burglary. The Act empowered ‘authorising officers’, namely Chief Constables and others holding appointments of similar standing, to authorise such covert surveillance in its more intrusive forms, as long as there was approval in advance by independent Commissioners appointed under the Act. Three years later a new statute: the Regulation of Investigatory Powers Act 2000 (“RIPA”) was enacted. RIPA was intended to provide a comprehensive regulatory structure covering all surveillance. It replaced the regime in IOCA but not those in Part III of the 1997 Act or the Intelligence Services Act 1994, although it amended both Acts.

PRESENT DAY COVERT SURVEILLANCE“…All surveillance now must be authorised and it is now virtually all covered by RIPA – including bugging operations. If it isn’t authorised it’s unlawful…”

There is a degree of overlap between the 1997 and the 2000 Acts. Thus today the situation is that lawful authority for surveillance emanates from the 2000 Act, and any property interference will not be unlawful, provided that it is authorised under the 1997 Act. Thus, in order to place a ‘bug’ in a house, authority under both Acts is required. Authority under RIPA 2000 is required to use a bug at all and authority under the Police Act 1997 is required in order

to make the entry in to the premises where the bug is to be placed, lawfully.

RIPA now provides a statutory backcloth to all covert police operations. This obsession with proper authority eminated not from a Government desire for its citizens to know and understand the power of the authorities, but because it had to under human rights law. Article 8 of the European Convention of Human Rights established, even before the Human Rights Act 1998 came into force, the right to privacy. Surveillance is a breach of privacy but of course it is a necessary and legitimate tool in the fight against crime. Under Article 8(2) certain breaches will be lawful if the purpose is, for example, “the prevention of disorder or crime” and that the interference with the right (to privacy) is “in accordance with the law.” That phrase simply means that there must be a proper statutory authority for the interference, not just some Home Office Code of Conduct. Thus the UK Government lost another case in Khan v UK (2001) 31 EHRR 45 – the use of a covert listening device prior to coming into force of the Police Act 1997.

All surveillance now must be authorised and it is now virtually all covered by RIPA – including bugging operations. If it isn’t authorised it’s unlawful. Telephone and postal intercepts are treated much more seriously than simple ‘bugging’ and, as will be seen below, cannot, in any event, be used as evidence. The effect of RIPA is that we, the public, can see for ourselves exactly what the State’s powers are to conduct surveillance against us, we know what the process and procedures are, the different types of surveillance and the authorisations needed by the investigating officers.

In a recent case in the European Court of Human Rights the Strasbourg Court

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confirmed that the RIPA regime in relation to the interception of communication is ECHR compliant and the complainant had not had his right to privacy breached; see Kennedy v UK ECHR 18/5/10.

Types of Surveillance AuthoritiesPart II of RIPA, divides covert surveillance into three different categories:

Directed Surveillance: this is covert but not intrusive. It is likely to reveal private information about a person. This is the most basic type of surveillance under the Act, in reality it is ‘tailing’ someone, following them, photographing and videoing them. It requires only internal authorisation by a designated person who believes that it is proportionate to the aim sought to be achieved.

Intrusive Surveillance: is defined as covert surveillance carried out in relation to anything taking place on residential premises or in any private vehicle. Such surveillance must be authorised by the Home Secretary or, one of a designated number of others such as the Chief Constable of a police force. The grounds are narrower than for directed surveillance and all authorisations for intrusive surveillance are also subject to scrutiny by a Surveillance Commissioner.

Part III of the Police Act 1997 allows for the authorisation of covert entry upon, and interference with, property (or with wireless telegraphy) by the police and Customs

Covert Human Intelligence Source: this is defined as a person who establishes or maintains a personal relationship with a person for the covert purpose of using the relationship with a person or covertly disclosing information obtained by the use of such a relationship or as a consequence of such a relationship. This clearly includes under-cover officers but may also include the

use of informants. Again the authorisations may be made by a limited list of senior persons and the grounds are identical to those for directed surveillance.

All 3 of these types of surveillance are used by the police to gather evidence for a potential prosecution. However, stricter controls are placed on surveillance designed to gather mere intelligence; i.e. telephone and postal intercepts. The material from this type of surveillance cannot be used in a criminal trial.

Intercepts: Intercept warrants were authorised under IOCA. They are now authorised under s1 of RIPA. Under the relevant Code of Practice to RIPA only a very small number of very senior officials are authorised to make applications, e.g. the Director General of the National Criminal Intelligence Service. The warrants must be personally authorised by the Home Secretary. The level of intrusion is regarded as very high and so only the most serious cases attract this type of authorised intrusion. However, the material cannot be used in evidence.

There has been much debate recently about whether material gathered by intercept through telephone (or mail) intercepts should be admissible evidence in the Courts. At the moment it is not. In fact s17 of RIPA actually establishes that it is impermissible to adduce any evidence which even discloses that an intercept has taken place. The reasoning is that disclosure of such material would ‘give the game away’ as regards the techniques used. This is even though many other jurisdictions do not have a problem disclosing such material. Clearly the fact that the State uses interception technology is now widely known including, presumably, by the very people likely to be affected by the intrusion.

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Bugging of lawyer/client discussionsIn a case called Re Mc E [2009] 2 Cr. App. R. 1 the suggestion was that the authorities in Northern Ireland had been bugging the conversations between solicitor and client. If true the defence would no doubt have mounted an abuse of process argument on the basis that that is such a fundamental infringement of human rights that, whether or not the material was evidence or not, no trial should take place in those circumstances. That sort of surveillance has always been regarded as beyond the pale and Courts have not hesitated in halting even the most serious cases for such infringements. The matter of Mc E went to the House of Lords who found that in fact RIPA could allow for the covert surveillance of discussions between lawyer and client.

However, until Parliament amended the Act so as to make that fact explicitly clear then all such cover actions would be unlawful – the problem was the Act was worded in a way which made that sort of surveillance ‘directed surveillance’ and not ‘intrusive surveillance’ requiring the approval of a Surveillance Commissioner. The Court found that such an authorisation regime was disproportionate. Parliament has now made the necessary legislative amendments – see the Regulation of Investigatory Powers (Extension of Authorisation Provisions: Legal Consultations) Order 2010. This came into force on 25/2/10. But there will be cases where the surveillance pre-dates this Statutory Instrument where it can be said that the police have acted unlawfully and the evidence should be inadmissible.

CHALLENGING ADMISSIBILITYWhat clients want to know from us is can ‘can covertly obtained material be excluded’? The answer, in principle, is ‘yes’. Of course it all

depends on the circumstances of the case. What should first of all be considered is the reason for the application for covert surveillance in the first place and then consider whether there is any force in any argument that the material should be excluded. This will inevitably involve human rights arguments and, very likely, Public Interest Immunity (PII) too.

Codes of Practice: Each type of surveillance, directed, intrusive etc has a Code of Practice. These are available on the Home Office’s website. The Codes set out in detail the police application procedure. Application forms are used and there are time limits for each authorisation. Authorisations must only be granted where the interference is to be regarded as necessary and ‘proportionate’. The doctrine of proportionality continues after the operation has commenced. All it means in practice is that the authorisations should be renewed regularly.

Article 8: As mentioned above it is important for the police to ensure that the intrusion is properly authorised and the proper procedures in the Codes of Practice have been adhered to. If not then it is arguable that the surveillance is not “in accordance with law” as required under Article 8(2) of the European Convention. If not properly authorised the intrusion will have been a breach to the right of privacy and thereby unlawful.

However, the next questions has to be, ‘so what?’ What must be remembered is that a breach of Article 8 does not mean that the material must be excluded. There is no point being fixated on the procedure used to obtain permission – a more forensic approach is necessary; i.e. consideration of whether parts of the covertly obtained

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material can be excluded or whether there is a realistic argument that the impact on the case as a whole of admitting unlawfully obtained evidence would be to breach fair trial requirement of Article 6 of the Convention. Solid reasoning has to be put before a Judge for such an argument to be successful. It must be remembered that the trial Judge is under a duty to consider any established breaches of the European Convention, per sections 6 and 8 of the Human Rights Act 1998. However, the dominant factor in the trial Judge’s mind will be the Defendant’s Article 6 rights, i.e. the right to a fair trial. The Strasbourg Court itself has recognised that a breach of Article 8 does not of itself establish a breach of Article 6 (Perry v UK 63737 July 17, 2003). That is why it is important to address any potential breaches of Article 8 with Article 6 in mind – table-thumping and saying ‘it isn’t fair’ will never, on its own, produce the desired result.

A practical example of this approach could be to concentrate any attack on the length of a surveillance operation. As explained, for each type of surveillance the intrusion into a citizen’s private life must be shown to be ‘necessary’, and that the invasion of privacy necessary will be the minimum possible. It may therefore be possible to show that though a lawful authorisation ran for 3 months in truth the police had sufficient evidence by 6 weeks, and ought therefore then to have ended the intrusion as it was no longer ‘necessary’. This approach might not get all the material excluded but the Judge might be persuaded to exclude half of it!

In R v Grant [2005] 2 Cr. App. R 28 the police eavesdropped on the communications of a suspect and his solicitor. The Court of Appeal held that unlawful acts of such a kind, amounting to a deliberate violation of a

suspect’s right to legal privilege were such an affront to the integrity of the justice system that the prosecution was rendered abusive. However, this case has recently been expressly disapproved by the Privy Council in Curtis Warren v Att. General for Jersey [2011] 2 ALL ER 513, PC. In that case the police had placed an audio probe in the defendants hire car which would be driven through a number of overseas European countries. The police knew that permission from those countries had been refused for the use of such devices but went ahead anyway. The consequent abuse of process application failed, a decision upheld on appeal. Much turned on the facts of the case but the Council found that the Court of Appeal was wrong to say that deliberate invasion of a suspect’s right to legal professional privilege should generally lead to a stay of prosecution – it may do it is always a balancing exercise.

In practice challenges to covert operations always started with the defence requesting copies of the written RIPA applications and authorisations which we would then receive (with the highly sensitive information blacked out) – then at least the defence could start to consider whether the operation was ‘proportionate’ or not and prepare for a possible exclusion argument. However, following the cases of R v G.S. and Ors [2005] EWCA 887, unrep. 22/4/05, it will now be more difficult for the defence to demand the applications and authorisation forms. The Court of Appeal has made it clear that the Act provides all the relevant lawfulness safeguards and if there is a challenge all the Crown have to do is produce the relevant authorisations to the Judge only for his inspection. See also the case R v Allsopp [2005] EWCA Crim 703. In reality ‘lawfulness’ challenges are nowadays more

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difficult as both the police and the Courts have found ‘the line’ since the introduction of RIPA.

Informants/Entrapment:“…it may be of importance to the defence to know that a suspect or witness had a particular relationship with the police; it might support his case that he has been entrapped into committing an offence. In handling cases where such an issue could arise we always pay particular care to the disclosure process and in particular to the Defence Statement…’’

The use of undercover officers in covert operations often leads to accusations of abuse of process on the basis that the officers have entrapped or encouraged an offence to take place. This aspect of abuse deserves a whole Information Brief to itself but in very short order the Judge has to look to see if the undercover officer has ‘overstepped the mark’; R v Loosely; Att. General’s Ref (No 3 of 2000) [2001] 1 WLR 2060, HL.

The area where the Prosecution are most liable to pressure is disclosure of sensitive material and the area in which this type of disclosure is most likely to lead to the most pressure is, arguably, in cases involving covert human intelligence sources (CHIS); i.e. informants, undercover officers and especially participating informants.

It is our experience that the police’s overriding concern is their duty of care to their informant; i.e. to protect him at all costs. This is understandable but that concern seems often to lead to a lack of communication between the police and the CPS about the extent, or involvement at all, of a CHIS. Often an investigating officer will not realise that one of the suspects/witnesses he is dealing with is a CHIS being handled by another officer. There is an internal tension,

even within the police, about disclosure and how the police best discharge their duty of care. In a case like that it may be of importance to the defence to know that a suspect or witness had a particular relationship with the police; it might support his case that he has been entrapped into committing an offence. In handling cases where such an issue could arise we always pay particular care to the disclosure process and in particular to the Defence Statement. We represented H in the leading House of Lords case of R v H & C [2004] 2 AC 134 (Feb. 2004). That was not an entrapment case but did establish that ‘special’ or ‘independent’ counsel could be used in PII hearings, in exceptional cases, in order to give the defence a voice in private PII hearings.

Parliament has now enacted the Serious Organised Crime and Police Act 2005; this enables the prosecution to enter into immunity deals with suspects as well as being able to offer greatly reduced sentences in return for co-operation. It also exaggerates a clear and present danger of abuse by witnesses with an agenda. The Metropolitan Police suffered huge embarrassment in March 2011 in the collapse of the historic Daniel Morgan murder investigation where the police relied on the evidence of two supergrasses who were patent and obvious liars acting in their own interests.

If the proper pressure is maintained, the right arguments made and the right questions asked then it maybe that any lack of disclosure by the police to the prosecution is revealed. This can create difficulties for the prosecution who may have specifically said to the Judge in a PII application, or possibly to the defence in writing, that a particular piece of material requested simply does not exist. This may lead to an order to disclose –

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perhaps just to preserve at least the ‘appearance’ of a fair trial which is part of Art. 6. Disclosure applications are usually not won by the defence because of their overwhelming persuasive argument but because the defence team have highlighted issues which show a failing on the part of the police to follow up a related enquiry, or to disclose material to the CPS or to properly consider the disclosure schedule. Identifying these areas and bringing them to the fore is the art of the experienced defender and our speciality.

IN PRACTICE“…it is clear that as covert surveillance becomes more and more routine so competent defenders must be more alive to imaginative but realistic challenges…”

Each case involving covert surveillance needs careful consideration of every reasonable legitimate challenge. The Crown can be made to prove the lawfulness of their authorisations and, if they fail, applications to exclude the evidence become much easier. Sometimes inventive approaches need to be considered. That has been one of the cornerstones of our success. The defence position is that the right to a fair trial under Article 6 of the European Convention includes the right not to incriminate oneself – thus the caution reminding the suspect of his right to silence. So the use of the suspect’s voice sample, used for a purpose which he was not cautioned about and gave no permission for violated his right to remain silent rather than choose to incriminate himself. We will see if the Appeal Court agrees. However, it is clear that as covert surveillance becomes more and more routine so competent defenders must be more alive to imaginative but realistic challenges.

Many such challenges will turn on the separate issue of disclosure. In other words a trial Judge might say, ‘well I can’t decide whether to exclude this material or not until I know how reliable the informant was’ – for example. That will in turn clearly lead to a PII by the Crown, or at least that the Judge reads material without the defence having sight of it. That situation dovetails with another particular speciality of ours, the disclosure of sensitive material. As discussed we acted for H in the leading House of Lords authority on the proper law of disclosure and PII applications; R v H & C [2004] 2 AC 134 (Feb. 2004), see our Information Brief on Disclosure and PII.Contact our Covert Surveillance Defence (Serious Crime) Department for more information on tackling cases involving RIPA authorities including informants.

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Rahman Ravelli has built an enviable reputation as a leading criminal defence firm. Our Practice is nationwide and we have developed an expertise in handling substantial and complex cases particularly those involving difficult legal challenges, especially in the Human Rights area.

We continue to successfully protect the rights of the individual in all areas of criminal law.

We recognise that criminal cases today are not merely decided on eye witness testimony, but on other issues such as whether evidence can be successfully argued to be inadmissible or the prosecution made to disclose evidence helpful to the defence case. Our dedicated team of criminal lawyers are always up to date with the latest developments in the law to ensure that no stone is left unturned. The lawyers have

wideranging experience of defending cases of significant complexity and seriousness. Our reputation means that we are able to instruct the most able counsel to conduct trials.

We appoint Counsel, Queen’s Counsel and Experts who have passed our vigorous vetting procedures.

High Profile CasesRahman Ravelli routinely deals with large, high profile cases and is experienced in dealing with criminal matters all the way to the House of Lords. We are at the cutting edge of new developments in criminal law for example the recent House of Lords Case of R v H and C is a Rahman Ravelli case. This case is now the leading authority on the prosecution’s obligations regarding disclosure to the defence and Public Interest Immunity (Pll).

SPECIALISTS IN DEFENDING SERIOUS CRIME & SERIOUS FRAUD (NATIONWIDE)

INFORMATION BRIEFS

The following information leaflets can be obtained from our website.

• Custody Time Limits • Covert Surveillance

• (Bugs, Trackers etc …) • Disclosure and Pll

• Informant Evidence • Money Laundering

• NCA Recovery (NCA)

www.rahmanravelli.co.uk

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RIPAOur speciality is defending cases involving large scale police operations where authorities have been granted under the Regulations of Investigatory Powers Act 2000(RIPA); i.e.• The use of Informants• Covert Surveillance (including Covert

Listening devices)• Undercover Officers; and• Material which demands an expertise in

disclosure and PII concernsIf you feel we can assist you please do not

hesitate to contact our Serious Crime Department.

Head Office:Roma House,59 Pellon Lane,Halifax, HX1 5BETel: 01422 346 666(24HR)Fax: 01422 430 526Email: [email protected]

London Office:Tel: 0203 440 5515

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Solicitors

Head Offi ce

Roma House 59 Pellon LaneHalifax HX1 5BETel: 01422 346666Fax: 01422 [email protected]

London Offi ce

Tel: 020 3440 5515

Offi ces in Halifax and London with Nationwide Coverage

Serious Fraud, Regulatory and Complex Crime Lawyers

OUR SERVICES

• Serious Crime

• Serious Fraud

• Covert/Human Rights

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• General Crime

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