Solicitors Journal - On the Beat

On the beat |Total surveillance

Blog | 19 June 2012

The extension of police powers to indiscriminantly ‘snoop’ on communications data is an infringement of human rights

The general rule is that you never mix politics and policing. The government makes the laws and the police enforce them. The separation of the two powers is crucial in an open and democratic society that adheres to the rule of law. So it was surprising to read the commissioner of the Metropolitan Police, writing in The Times last week (14 June 2012), lobbying on behalf of the coalition government to legislate for new surveillance powers which will give the police, intelligence agencies and HM Revenue and Customs access to all our communications data. He states that: “It allows police to prove or disprove alibis, eliminate innocent people from an investigation and establish links between conspirators,” and that “in a significant number of cases, access to communications data is a matter of life or death”.

Current proposals are a direct challenge to the established presumption of innocent until proven guilty and an infringement of our basic human right, the right to a private lifeThe draft Communications Data Bill will force service providers to record and retain all activities of their customers for 12 months and hand over details of who they contacted, when, where and how, on request. At present, 25 per cent of data is not logged by service providers and the government is proposing to hand over £200m every year of our public funds to these providers in order to close that gap. The home secretary has justified such moves as “a vital tool” which is “a crucial part of day-to-day policing and the fingerprinting of the modern age”. Critics have labelled the draft bill a ‘snoopers’ charter’ and if the aim of the government is to introduce a digital fingerprint programme under the guise of fighting crime then I would have to agree. The Current proposals are a direct challenge to the established presumption of innocent until proven guilty and an infringement of our basic human right, the right to a private life

This “total war on crime” is nothing less than total surveillance and a creeping criminalisation of society. The reluctance of the government and the commissioner to seek independent oversight over such powers is not just concerning but demonstrates that they are willing to set up a totalitarian-style of policing. Under the proposals there will be no requirement to apply for a court warrant and instead the approval will be carried out in-house with a report being prepared for the interception of communications surveillance commissioner after the event. This will mean that there will be no strict controls over this new capability and the power will be susceptible to abuse.

Unjustified intrusion

It has already been reported that at least 500,000 requests for data access are made every year by public authorities. More than half of the requests are made by the police and intelligence services and, of those, between 2010 and 2011 only 124 requests were connected to a criminal case. The argument put forward by the commissioner that “put simply, the police need access to this information to keep up with the criminals who bring so much harm to victims and our society” does not correlate with these statistics and paints a different picture under closer examination.

The commissioner also said he believes that: “In the UK we police by consent.” However, the insatiable hunger for greater power could risk turning policing into a monster, uncontrollable and without any due process to the public, where consent would neither be sought for or wanted.

The odd suggestion by Nick Herbert, the police minister, last week that undercover police officers are allowed to have sexual relationships with activists under their surveillance, “if it is consentutory conduct falling within the Act that the source is authorised to undertake”, is a clear example of how the current laws under RIPA 2000 are being abused. The police minister has failed to recognise that the eight women who are pursuing civil claims against the Metropolitan Police for breach of their right to form relationships without unjustified interference by the state did not consent to having sexual relationships with policemen.

It is alleged that one of the officers named by the women include Mark Kennedy, whose actions led to the collapse of the trial of the six environmental protestors who were accused of conspiring to shut down Ratcliffe-on-Soar power station in January 2011 (blog post January 23 2011 ‘But officer!’ (www.solicitorsjournal.com/blog/beat)). Kennedy then became the central focus of the review led by Bernard Hogan-Howe in his role at Her Majesty’s Inspectorate of Constabulary (HMIC), which found that “there was serious intrusion into the lives of others”, and “there is not the same accountability to the courts as for evidence-gathering deployments”.

In light of such findings, I would have thought that the commissioner would have wanted there to be judicial oversight over new powers and, if he was to lobby the government, then he would have lobbied for greater accountability. The chilling words used by the home secretary that “the only people who have anything to fear from this are the criminals” is wrong as the government wants the power to spy on anyone for any reason and that is something that we must all fear.