The Scottish Human Rights Commission. Response to Scottish Government Consultation. March 2014

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1 The Scottish Human Rights Commission THE REGULATION OF INVESTIGATORY POWERS (SCOTLAND) ACT 2000: REVISED CODES OF PRACTICE FOR COVERT SURVEILLANCE AND COVERT HUMAN INTELLIGENCE SOURCES. Response to Scottish Government Consultation March 2014 The Scottish Human Rights Commission is a statutory body created by the Scottish Commission for Human Rights Act The Commission is a national human rights institution (NHRI) and is accredited with A status by the International Co-ordinating Committee of NHRIs at the United Nations. The Commission is the Chair of the European Network of NHRIs. The Commission has general functions, including promoting human rights in Scotland, in particular to encourage best practice; monitoring of law, policies and practice; conducting inquiries into the policies and practices of Scottish public authorities; intervening in civil proceedings and providing guidance, information and education. INTRODUCTION The Scottish Human Rights Commission (the Commission) welcomes the opportunity to comment on of the Scottish Government consultation on the two Codes of Practice made under the Regulation of Investigatory Powers (Scotland) Act 2000 (RIP(S)A). 1 RIP(S)A provides a regulatory framework within which specified public authorities can carry out covert activity lawfully. It requires that a public authority sets out fully the reasons why covert activity is necessary, together with demonstrating that the proposed course of action is proportionate to what it seeks to achieve. The officer authorising covert activity must believe that the activity is necessary for a specific purpose. In respect of directed surveillance (section 6 of RIP(S)A) and covert human intelligence sources (section 7 of RIP(S)A) the authorised purposes are: preventing or detecting crime or of preventing disorder; in the interests of public safety, or for the purpose of protecting public health. In respect of intrusive surveillance the single authorised purpose is defined in section 10 of RIP(S)A as: preventing or detecting serious crime. 1 This submission is based on a paper prepared by Clare Connelly, Advocate. 1

2 In addition to the purposes detailed above, the authorising officer must also believe that the activity is proportionate to what is sought to be achieved. Proportionality in this context means that the authorising officer must be satisfied that the degree of intrusion against the targeted individual and others who may be collaterally affected by the activity, is proportionate to what is sought to be achieved. Disproportionate activity arises where the information sought could have been secured using less intrusive means. Such activity should not be authorised. RECOMMENDATIONS The Commission makes the following recommendations, which are explained below: 1. A minimum threshold should be provided which details storage provisions, the length of time information can be stored and detailed obligations regarding destruction. 2. The Codes should provide more detailed processes to be followed, in particular what should be done with the content of legal privilege disclosures to ensure that they are not used in law enforcement investigations. RIPSA The revision of the Codes of Conduct is in consequence of a number of factors including the merging of Scotland s eight police forces and the Scottish Crime and Drug Enforcement Agency into a single Police Service of Scotland with designated officers assigned the role of authorising officer for intrusive surveillance and property interference authorisations. The Police Investigations and Review Commissioner (PIRC) can authorise directed surveillance, covert human intelligence sources and intrusive surveillance. Of particular significance, are the draft Scottish Orders which contain the provisions to be relied upon when a party seeks access to matters subject to legal privilege. This includes the conduct or use of a source to obtain matters subject to legal privilege; providing access to any matters subject to legal privilege to another person and disclosure of matters subject to legal privilege. Matters subject to legal privilege are defined as communications between a professional legal adviser and that adviser s client or communications made in connection with or in contemplation of legal proceedings and for the purposes of those proceedings. The draft Scottish Orders further provide that directed surveillance will be treated as intrusive surveillance if at any time when the surveillance is to be carried out part of the following premises is to be used for a legal consultation, namely: Premises in which individuals are detained for the purpose of serving a sentence of imprisonment or detention, remanded in custody or remanded or committed for trial or sentence; legalised police cells within the meaning of section 14(1) of the Prisons (Scotland) act 1989; 2

3 any premises wherein people can be detained under the Immigration Act 1971 or the UK Borders Act 2007; any premises in which an individual may be detained under Part VI of the Criminal procedure (Scotland) Act 1995 or the Mental Health (Care and Treatment) (Scotland) Act 2003; police stations; the place of business of any legal adviser; and any premises used for the sittings and business of any court, tribunal or inquiry. The draft Scottish Orders were deemed necessary to implement the House of Lords decision in re McE (Appellant) (Northern Ireland), re M (Appellant) (Northern Ireland) and re C (AP) and another (AP) (Appellants) (Northern Ireland) 2 which considered the impact of the Regulation of Investigatory Powers Act 2000 (RIPA) on the right of legal professional privilege. That case discussed the validity of exemptions to this right and the need to clarify exceptions to the inviolability of privileged consultations. The Code of Practice makes detailed provisions for obtaining authorisation for monitoring consultations covered by legal professional privilege. The case further considered the legality of other situations of covert surveillance. As was stated in that case neither article 6 nor article 8 imposes an absolute prohibition on covert surveillance of legal consultations, provided it is authorised by law and is proportionate. 3 LEGAL FRAMEWORK European Convention on Human Rights 1950 Human Rights Act 1998 Scotland Act 1998 Article 8 of the European Convention on Human Rights provides that everyone has the right to respect for his private life and his correspondence. Interference is permitted if it is In accordance with the law in so far as necessary for the purposes there specified. Article 8(2) states There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. The relevant Strasbourg jurisprudence covers interception of communications, covert surveillance and the right to private consultation with a lawyer. The cases demonstrate that there is no absolute prohibition on surveillance in any of these situations. Both article 6 and article 8 of the Convention may be engaged. So far as article 6 is concerned, surveillance on communications between lawyer and client will not necessarily interfere with the absolute right to a fair trial. So far as article 8 is concerned, the issue is whether interference can be justified under article 8(2). 2 [2009] UKHL Para 62. 3

4 A number of decisions of the European Court of Human Rights deal with surveillance of consultations with legal advisers. In S v Switzerland 4 and Brennan v United Kingdom 5 the Court held that supervision of legal consultations, which would have the effect of preventing the client from giving his lawyer instructions and receiving advice in confidence, entailed a violation of article 6(3)(c) of the Convention in conjunction with article 6(1). 6 In these cases it was the effect of the supervision, not the supervision in itself, which brought about the breach of Convention rights. It was accepted in Brennan and Ocalan that the right of access to a solicitor might be subject to restrictions for good cause, the ultimate question in each case being whether the restriction deprived the accused of a fair hearing. Another line of Strasbourg cases 7 concerns covert surveillance by telephone tapping, but not specifically of legal consultations. These cases are cited to support the position that domestic law must lay down a clear and precise set of rules, giving the citizen adequate indication of the circumstances and conditions under which public authorities may adopt such measures. 8 What is clear is that the ECtHR contemplates both in the legal consultation cases and the telephone tapping cases that some exceptions to the general prohibition may exist. In Klass v Germany and Erdem v Germany the Court was prepared to accept the possibility of the existence of exceptional circumstances, which may be related to abuse of the privilege or the interests of national security or the prevention of crime. This approach tends to support the proposition that covert surveillance of legal consultations should not be regarded as prohibited and unlawful in all possible circumstances. Some of the case law is considered in more detail below. Klass v Germany (1978) 2 EHRR 214 established the right of applicants to complain of secret surveillance, notwithstanding that the nature of such surveillance was such that they were unable to establish that they individually had been subjected to it. The case involved laws permitting interception of communications. The Court accepted that, in order to counter threats of espionage and terrorism, it was necessary to accept powers of secret surveillance. There had, however, to be adequate guarantees safeguarding individual rights which should normally be assured by the judiciary, at least in the last resort, judicial control offering the best guarantees of independence, impartiality and a proper procedure. 9 In Malone v Metropolitan Police Commissioner (No2) [1979] Ch 344 at para 67 the Court made the following observation in relation to the requirement of foreseeability implicit in the phrase according to law in article 8(2): 4 (1991) 14 EHRR (2001) 34 EHRR see also Ocalan v Turkey (2003) 37 EHRR See for example Klass v Germany (1978) 2 EHRR 214, Valenzuela Contreras v Spain (1999) 28 EHRR 483 and Erdem v Germany (2002) 35 EHRR Girvan LJ cited these cases, along with Kopp v Switzerland (1999) 27 EHRR para 55. 4

5 Undoubtedly, as the Government rightly suggested, the requirements of the Convention, notably in regard to foreseeability, cannot be exactly the same in the special context of interception of communications for the purposes of police investigations as they are where the object of the relevant law is to place restrictions on the conduct of individuals. In particular, the requirement of foreseeability cannot mean that an individual should be enabled to foresee when the authorities are likely to intercept his communications so that he can adapt his conduct accordingly. Nevertheless, the law must be sufficiently clear in its terms to give citizens an adequate indication as to the circumstances in which and the conditions on which public authorities are empowered to resort to this secret and potentially dangerous interference with the right to respect for private life and correspondence. The Court observed that where a legal discretion was conferred on the executive the law had to indicate the scope of the discretion and the manner of its exercise with sufficient clarity, having regard to the legitimate aim of the measure in question, to give the individual adequate protection against arbitrary interference. 10 In Weber and Saravia v Germany 11 the Court summarised the case law on the minimum safeguards that should be set out in statute law in order to avoid abuses of power involving interception of communications: The nature of the offences which may give rise to an interception order; a definition of the categories of people liable to have their telephones tapped; a limit on the duration of telephone tapping; the procedure to be followed for examining, using and storing the data obtained; the precautions to be taken when communicating the data to other parties; and the circumstances in which recordings may or must be erased or the tapes destroyed. The Strasbourg Court has, on a number of occasions, emphasised the importance that attaches to confidentiality between lawyer and client. In two cases on telephone tapping brought against France, 12 the Court recognised the importance of the principle that telephone tapping had to be carried out in such a way that the exercise of the rights of the defence could not be jeopardised, and that the confidentiality of the relations between the suspect or the person accused and his lawyer had to be respected, as did the lawyer s duty of professional confidentiality. The importance of protecting this professional confidentiality was emphasised by the Court in Kopp v Switzerland. 13 In another line of cases the Strasbourg Court has emphasised, in the context of article 6 of the Convention, the importance of an accused being able to confer with his advocate in private. In S v Switzerland 14 for example the Court 10 para Application no 54934/00, Admissibility Decision 29 June 2006, para Huvig v France (1990) 12 EHRR 528 and Kruslin v France (1990) 12 EHRR (1998) 27 EHRR (1991) 14 EHRR 670 the Court stated. 5

6 stated: The Court considers that an accused s right to communicate with his advocate out of the hearing of a third person is part of the basic requirements of a fair trail in a democratic society and follows from Article 6 (3) (c) of the Convention. If a lawyer were unable to confer with his client and receive confidential instructions from him without such surveillance, his assistance would lose much of its usefulness, whereas the Convention is intended to guarantee rights that are practical and effective. 15 OBSERVATIONS AND RECOMMENDATIONS 1. In Re McE, it is suggested 16 that it is arguable that the statutory provisions should be interpreted so as to confer a right to private consultation only where the consultation is for legal purposes and not where the object of conferring with the lawyer is the furtherance of crime. The problem with this interpretation, however, is how to determine that the conference has such an ulterior motive without listening to it? A similar issue arises as regards determining whether the intrusive surveillance is necessary to detect serious crime under the Scottish provisions. This point applies equally to the CSPI Code of Practice para 4.2. Whilst that Code at para 4.10 states that any application should explain steps that will be taken to stop matters subject to legal privilege being used in criminal investigations or criminal prosecutions, more detailed guidance including as a minimum a list of possible ways to do this should be included. It is recommended that a minimum threshold be provided which details storage provisions, the length of time information can be stored and detailed obligations regarding destruction. 2. A difficulty that arises in both Codes and in particular both of the sections 4 relates to a lack of specification as to how safeguards and protections will be ensured. A clear example of this is found at paragraph 4.12 where it states Public authorities should make every effort to avoid their CHIS unintentionally obtaining, providing access to or disclosing knowledge of matters subject to legal privilege. Terms such as make every effort leave a high level of discretion and are open to abuse. Later that section states that if despite the steps outlined being followed, matters subject to legal privilege are disclosed, the public authority should ensure that it is not used in law enforcement investigations or criminal prosecutions. The provision to retrospectively draw the obtaining of such knowledge to the attention of a commissioner is inadequate as it will be retrospective and any harm may already be done. It is recommended that the Code provide in both sections 4 more detailed processes to be followed and in particular, 15 para Lord Phillips at paragraph 26. 6

7 what should be done with the content of legal privilege disclosures to ensure that they are not used in law enforcement investigations. CONCLUSION The ECHR framework does not prohibit intrusive surveillance so long as Article 8(2) is complied with. Similarly such surveillance will not necessarily impact on an accused s Article 6 rights. The jurisprudence from Strasbourg and the UK demonstrate that there must be adequate protections in place before intrusive surveillance is deemed to be convention compliant. The Codes of Practice are lacking in detail and would benefit from more detailed procedures being specified. 7