Civil Liberties and Human Rights

Part IV of RIPA was original subject to mass controversy and continues the subject of widespread debate. Part IV lacks a stable structure, meaning several different commissioners may be covering activities which may possibly be part of the same operation. Judicial appointments to the Data Protection Registry may ensure greater stability. The fact that the Tribunal has never found a breach and, because of the rules about non-disclosure, rarely considers cases in which there has been any interception fails to inspire confidence in its function.

The judiciary and the government have adopted minimal interpretations of the Convention rights when introducing legislation into Parliament. Where similar arguments about the effectiveness of scrutiny in security cases have reached the Court, the applicant has won. The Regulation of Investigatory Powers can be deemed a success by introducing many previously legally unregulated surveillance techniques on a statutory basis.

The constant development of technology and the constant willingness of law enforcement agencies and other private individuals to use this technology have increased the difficulties placed on the law in protecting individual's privacy.

The disjointed nature of the regulation and the inability of the Home Office to produce their promise of a single regulatory system leave RIPA way short of an effective piece of legislation. It is an Act that is not so much directed at the protection of privacy, but as a measure designed to ensure that the HRA has little impact upon the area.

As Fenwick has argued "under the rhetoric about protecting human rights … lies an unadmitted concern – to keep scrutiny of such matters outside the courts … had powers of surveillance remained on a non-statutory basis they would have been vulnerable to challenge under Article 8 of the Convention … ."28 Originally only a handful of authorities were able to use RIPA but its scope has been expanded enormously. RIPA places 'directed surveillance' on a statutory basis but provides very meagre human rights safeguards, and is based on minimal readings of the convention.

However, the Convention is a dynamic instrument and in recent years has been requiring ever-stricter standards in relation to state surveillance. Given this, development of a domestic concept of privacy through the Human Rights Act and the input of the domestic courts' interpretation of Article 8, could mean that the regulatory system will have to evolve to meet more exacting standards ensuring that not only are covert surveillance practices more tightly controlled, but that overt practices are also adequately regulated.

Bibliography

Akdeniz, Y., N. Taylor, and C. Walker (2001) Regulation of Investigatory Powers Act 2000: Bigbrother.gov.uk: State Surveillance in the Age of Information and Rights Criminal Law Review, February: 73-90

Fenwick, H. (2000) Civil Rights: New Labour, Freedom and the Human Rights Act. Harlow: Longman. 

Fenwick, H. (2002) Civil Liberties and Human Rights. (3rd ed.) London: Cavendish. 

Lustgarten L. and Leigh, I. (1994) In From the Cold. Oxford: Clarendon Press.

Murphy, T., 'The Admissibility of CCTV Evidence in Criminal Proceedings. (1999) 13 International Review of Law Computers and Technology 383-404.

Taylor, N., and C. Walker (1996) Bugs in the System. Journal of Civil Liberties, 1: 105-124.

Uglow, S. [1999] Covert Surveillance and the European Convention on Human Rights. Criminal Law Review, April: 287-299

1 See HMIC, Policing with Intelligence (London, 1997/98); JUSTICE, Under Surveillance

(London, 1998); Policing with Intelligence: Criminal Intelligence: HMIC Thematic Inspection

Report on Good Practice 1997/98; Ericson, RV and Haggerty, KD, Policing the Risk Society

(Clarendon Press, Oxford, 1997).