Admissibility of evidence obtained by covert means in courts

Evidence in legal terms is said to be any matter of fact that a party to a lawsuit offers to prove or disprove an issue in the case. It includes a system of rules and norms to decide on which facts can by admitted and to what extent a judge may consider these as proof in a law suit. While defining evidence, it was envisaged that the scope for collection would be essentially manual using the primary senses of sight and hearing. It was also believed that the persons giving evidence will attempt to follow the laid down norms of normal ethical behavior.

However practically many instances of deviousness by persons committing grave crimes, pleading exception due to evidence being collected through clandestine means have come to light. Technology has developed over the years to a degree, that it is feasible to gather proof through electronic surveillance without physical presence of a person at the site. There are a variety of technologies available to facilitate covert surveillance such as telephone eavesdropping, radio frequency related surveillance devices, covert video technology and sting operation cameras.

Adoption of terrorism as a means for pursuing political ends by non state actors in various parts of the World has increased the level of threats faced by the common citizen and as a result law enforcement agencies willingly or unwillingly tend to seek evidence by covert means to enable conviction as well as to seek additional information from the suspects to prevent proliferation. Awareness of human rights has also grown concomitantly, thus any violation is taken up with alacrity by human rights organizations as Amnesty International.

As also personal privacy is increasingly assuming significance given the all pervasiveness of technology such as CCTVs in public as well as private places. The plea of national interest in interfering with privacy is however required to stand the test of reasonable and genuine link. A number of issues thus arise which need consideration in collecting and producing evidence obtained through covert means in the courts. Thus proliferation of terrorism, crime, and technology and rights awareness has led to the debate on admissibility of evidence obtained by secret services and law enforcement agencies through covert means inn courts.

Aim The dissertation seeks to examine the extent to which evidence obtained by covert means by law enforcement agencies including secret services in UK and shared with them by similar organizations from other countries (e. g. FBI, Interpol etc. ) is being used and has been admissible in courts. Objectives The objectives of the research will be as follows:- (a) To define evidence and its varied connotations in the light of advances in technology and law. (b) To analyze the purpose and authority of organizations in obtaining information covertly and validity in terms legal and human rights in doing so.

(c) To describe the current law in the United Kingdom in relation to the issue of evidence and its covert acquisition. (d) To identify the issues relating to obtaining covert evidence including the parallels from laws in other countries. (e) To assess the purpose of the current laws relating to obtaining covert evidence and evaluate their effectiveness. (f) To assess what reforms if any need to be made to the current law Methodology The research will follow a rigorous approach in examining all available primary and secondary resources.

Maximum inputs will be obtained from primary research however; secondary sources are also an important resource of information in the legal field which will be utilized. The internet provides ample examples from other countries which too will be utilized after due scrutiny. A detailed examination of the primary and secondary resources will result in a large quantum of information being collected on the following issues:- (a) Law enforcing agencies in the UK including the Secret Service, their purpose and methods in obtaining information and evidence.

(b) Current law on admissibility of evidence obtained clandestinely including its back ground. (c) Use of evidence so collected in court and the judicial guidelines, including a study of some of the cases (d) Assessment of the current law and evaluation of its effectiveness. (e) Assess the reforms required and their efficacy given the human rights situation. Ethics The dissertation will involve a detailed survey of literature on the subject including primary and secondary sources. These will be meticulously referenced as per standard practice and necessary acknowledgements included.

Direct quotes will be used to the barest minimum and only where essentially required. Maximum paraphrasing will be done and plagiarism will be strictly avoided. Timetable A minimum period of eight weeks is envisaged for the research as it will include the following activities:- (a) Collection of information from primary sources. (b) Collection of information from secondary sources. (c) Study and synthesis of the information. (d) Formulation of the projected outline of the dissertation and assessment of its congruence with the aim and objectives.

(e) Detailed evolution of the proposal and chapter wise completion. (f) Simultaneous review of additional material required and collection. (g) Finalization of the proposal. (Detailed time table should be filled up accordingly, as the time available is not known; hence this needs to be done at your end). References Maximum use will be made of primary sources such as legislation and case examples. The relevant legislation in United Kingdom includes the Intelligence Services Act.

1994, the Police Act 1997 , provisions of which have been augmented by Part II of the Regulation of Investigatory Powers Act 2000 ("RIP A") , the RIPA and` the Police and Criminal Evidence Act 1984. European Convention on Human Rights is the other key primary resource which will be consulted. In addition the UK Home Office guidelines of 1984 will also be examined in detail. Quotes from judgments and record of parliamentary proceedings will be used to supplement the main arguments. In addition supplementary sources to include quotes from articles in general as well as law journals and papers will be used judiciously.

The text books will be used only by exception and a major effort to base the paper on non textual references will be made. The World Wide Web will also be extensively used after the web addresses are duly authenticated. Comments for all sources used will also be included as far as possible. Chapter 1 The first chapter will set the tone for the subsequent dissertation and will thus provide detailed background of issues such as the implication of covert evidence, the manner of its collection by the agencies involved, the reasons and actual utilization.

The need for obtaining information covertly and its general applicability will be covered. The variation in criminal and civil law in admission of evidence will also be examined. For instance in civil law there is no absolute rule excluding covert evidence. On the other hand issues of authorization of surveillance and how this will be accepted in a court of law will provide some guidelines through a study of cases. . The British Secret Service has been carrying out intelligence gathering by covert means within the legal framework of the Regulation of Investigatory Powers Act 2000 (RIPA).

The Intelligence Services Act 1994 also deems the Director General of British Intelligence responsible for ensuring effective implementation of provisions of RIPA internally. These issues will be analysed. Chapter 2 This will examine the current law on covert information and its utilization. The admissibility of the same in the light of the types of crimes being committed and the grave harm that may be caused to society in case covert means are not utilized will be discussed.

The Police and Criminal Evidence Act 1984 (hereafter called "PACE") is the prinicpal document in this regard, its varius provisons will be analysed in detail. Article 8 of the same needs particular mention. The consistent view of secret service and law enforcement authorities such as Commissioner of the Metropolitan Police, Sir Ian Blair in support of admissibility of clandestine evidence will be discussed. . The Intelligence Services Act 1994 provides the British Secret service some authority for clandestine surveillance within the provision of RIPA. This act will be analyzed in detail.

Chapter 3 A detailed evaluation of the current law in the light of the requirements of utilization of covert sources, human rights and rights to privacy will be examined in this Chapter. There is considerable information on the differential applicability of such evidence especially when it is not in unfairness to the witness, legal privileges and so on. . . The details of some case studies involving secret services relevant to the laws will be covered. The reasonableness of surveillance in order to prevent crime and other wrongs has been accepted from time to time.

Such case studies need consideration. Chapter 4 An examination of the current law in United Kingdom with reference to similar laws in other countries will be undertaken. The aspects of laws in other countries which can be adapted to United Kingdom will be examined and recommendations evolved. There is adequate information available of cases of admissibility of covert evidence or otherwise from countries such as Australia and Hong Kong where laws are based on similar lines as the United Kingdom and hence will provide effective guidance.

The Privacy: the Regulation of Covert Surveillance report of the Law Reform Commission of Hong Kong for instance has accepted that a warrant can be granted for covert surveillance if it is for the purpose of preventing or detecting serious crime or to protect public security in respect of Hong Kong. Some Australian states as New South Wales have devised extensive acts to cover such contingencies such as the Listening Devices Act 1984 (NSW) (“LDA”), which will also be examined to analyze the impact of these to the present study. Chapter 5

The proposed reforms in the laws in the United Kingdom will be discussed and their validity and effectiveness in certain situations of interest will be examined. This will be based on the examination of similar laws in other countries as discussed in Chapter 4 above. European Commission guidelines on justification of covert surveillance and thus its admissibility as evidence based on factors as legitimacy, essentiality, proportionality and accountability will be examined to evolve effective recommendations. Conclusion Detailed findings and possible conclusions will be covered.

The problems faced, limitations and proposed suggestions for further research will be included in the conclusion References The following references have been used in the Proposal and will be examined in detail alongwith additional sources during the dissertation process:- 1. Abu Hena Mostofa Kamal.. Admissibility of covert surveillance evidence. http://www. thedailystar. net/law/2006/02/03/advocacy. htm. (04 Jun 06) 2. Amman v. Switzerland [16/02/2000] European Court App. 27798/95. http://www. surveillancecommissioners. gov. uk/judgements_case_law. html. (04 Jun 06). 3. Edward Alder and Alan Lee.

R v Shum Chiu and 5 others (DCCC 687 of 2004, 5 July 2005). Covert surveillance in Hong Kong 02-11-05. http://www. twobirds. com/english/publications/articles/Covert_surveillance_in_Hong_Kong. cfm. (04 Jun 06). 4. Edward Alder and Alan Lee. R v Lee Man-Tak and 3 others (DCCC 689 of 2004, 22 April 2005). Covert surveillance in Hong Kong. 02-11-05. http://www. twobirds. com/english/publications/articles/Covert_surveillance_in_Hong_Kong. cfm. (04 Jun 06). 5. European Convention on Human Rights 6. Gilchrist & another v. HM Advocate [2004] ScotHC 53. http://www. surveillancecommissioners.

gov. uk/judgements_case_law. htm. l(04 Jun 06) 7. Guidelines on the use of Equipment in Police Surveillance Operations (Home Office 1984) 8. Intelligence Services Act. 1994. http://www. opsi. gov. uk/ACTS/acts1994/Ukpga_19940013_en_2. htm#mdiv1. (04 Jun 06) 9. Information, Data, Intelligence & Knowledge Protection Specialist. The most needed operational response. www. securityacademy. com/English%20Materials/ Intelligence%20protection%20specialist. PDF. (04 Jun 06). 10. Judge Wildhaber in Rotaru v Romania (8 B. H. R. C. 449). http://www. thedailystar. net/law/2006/02/03/advocacy. htm.

(04 Jun 06) 11. Judge Wildhaber in Rotaru v Romania (8 B. H. R. C. 449). http://www. thedailystar. net/law/2006/02/03/advocacy. htm. (04 Jun 06). 12. Listening Devices Act 1984 (NSW) (“LDA”). http://www. lawlink. nsw. gov. au/lrc. nsf/pages/r98chp09. (04 Jun 06). 13. McGowan v. Scottish Water [23/09/2004] [2004] UKEAT 0007_04_2309. http://www. surveillancecommissioners. gov. uk/judgements_case_law. html. (04 Jun 06). 14. Methods of Gathering Intelligence. http://www. mi5. gov. uk/output/Page77. html. (04 Jun 06) 15. Peck v. United Kingdom [28/01/2003] European Court App. 44647/98.

http://www. surveillancecommissioners. gov. uk/judgements_case_law. html. (04 Jun 06). 16. Police Act 1997. Privacy: The Regulation of Covert Surveillance. Law Reform Commission. http://www. hkreform. gov. hk/what/content. htm. (04 Jun 06). 17. Regina v Khan (Sultan) (1996) The Times, July 5 House of Lords. http://www. rjerrard. co. uk/law/cases/khan. htm. (04 June 06). 18. Regulation of Investigatory Powers Act 2000 ("RIP A"). 19. The Police and Criminal Evidence Act 1984 . 20. Tyle, Richard. Britain: house arrest proposals widely criticized. 10 February 2005. http://www. wsws.

org/articles/2005/feb2005/arre-f10. shtml. (04 Jun 06). 21. Who’s Human Rights? Fraudster or Victim? Investigations and Asset Recovery Group Briefing July 2000. http://www. mishcon. co. uk/inp/inp_b/fraudbrief/fra0700. htm (04 Jun 06) Bibliography The bibliography comprises mainly of the Acts, case studies and articles available on the world wide web. Adequate details are available. A working bibliography is as given below:- Acts 1. European Convention on Human Rights 2. Guidelines on the use of Equipment in Police Surveillance Operations (Home Office 1984) 3. Intelligence Services Act.

1994. 4. Listening Devices Act 1984 (NSW) (“LDA”). 5. Regulation of Investigatory Powers Act 2000 ("RIP A"). 6. The Police and Criminal Evidence Act 1984 . 7. The Police Act. 1997. Web Sites 8. www. thedailystar. net 9. www. surveillancecommissioners. gov. uk 10. www. twobirds. com/ 11. www. twobirds. com/ 12. www. surveillancecommissioners. gov. uk 13. www. securityacademy. com 14. www. thedailystar. net 15. www. lawlink. nsw. gov. au/ 16. www. mi5. gov. uk 17. www. surveillancecommissioners. gov. uk 18. www. hkreform. gov. hk 19. www. wsws. org 20. www. mishcon. co. uk