The Regulation of Investigatory Powers Act 2000

The Regulation of Investigatory Powers act 2000 (RIPA) was brought into force in September 2000. It was enacted simultaneously with the Human Rights Act, but actually passed two years earlier and essentially incorporated the European Convention of Human Rights (ECHR) into U. K. law. Compliance with RIPA seeks to ensure that surveillance has undertaken due regard to the European Convention on Human Rights and particularly Article 8, the right to respect of family life and Article 1 of the first protocol.

Both rights are qualified and can only be interfered with where such interference is in accordance with the law and is both necessary and proportionate. Article 6 of the European Convention on Human Rights, the right to a fair trial, is also a relevant consideration. Compliance with RIPA seeks to ensure the police and other public authorities have to demonstrate proportionality, legality, accountability and necessity. The European Court of Human Rights has, however, always said that legality means more than something being simply not illegal but requires a clear legal basis.

Public authorities, in particular those concerned with law enforcement and national security have been engaging in surveillance throughout the history of policing in Britain. However, over the past thirty years in particular, advances in technology have considerably increased the states ability and its powers to engage in the surveillance of its citizens. In the UK the massive growth in state surveillance directed towards crime prevention and detection has been largely unencumbered by the law.

It is necessary to acknowledge that although increased surveillance has brought about numerous benefits it can also be argued that it has also had a negative impact on citizen's rights. For citizens to accept and consent to certain forms of surveillance it is only fair that the state should be accountable for its actions. There has been a fundamental switch away from the reactive policing of incidents to the proactive policing and management of risks.

1 The aim of this paper is to reflect upon how the protection of Human Rights in the United Kingdom when dealing with surveillance has been enhanced by the Regulation of Investigatory Powers Act 2000. The purpose of RIPA is to provide a comprehensive regulatory structure governing interception of communications, surveillance and associated activities. Whilst non-compliance with the legislation is not in itself an offence failure to comply with it may prejudice the success of any investigation and might provide the basis for a challenge under Human Rights legislation.

RIPA itself will now be assessed. Part I regulates the interception of communications2 and follows the proposed reforms briefly outlined in a Home Office Consultation Paper, Interception of Communications in the United Kingdom (the "Consultation Paper"). 3 Part I of the Act replaces the Interception of Communications act 1985 (IOCA) and extends the definitions of interception to include most forms of telecommunication including email4, cordless telephones,5 private exchanges and pay telephones,6 web sites visited and, in the case of mobile phones, the users geographical location.

7 Judicial authorisation of warrants was not adopted in the legislation which still allows for executive authorisation. Prior to the introduction of RIPA legislation often developed later to legitimise practices found to be in breach of human rights standards by the European Court of Human Rights. Changes were said to be vital because of the advent of the Human Rights Act 1998, as well as the impact of Article 5 of Council Directive 97/66 of 15 December 1997, known as the "Telecommunications Data Protection Directive".

8 The increase in the use of technology to carry out crimes led the Home office to state that interception should take a "crucial role in helping law enforcement agencies". 9 RIPA states that it shall be an offence to intercept a communication transmission, even if it takes place on a private network. There are, however, exceptions (s 4), which render such interceptions lawful. In s 3(1) some reasons for interception are named. 10 In practice this means that employers can breach the privacy of employees' electronic communication if they can establish a business interest for doing so.

Although, it is never defined what a legitimate business interest is. This arguably goes against the spirit of the Telecommunications Regulation 1999, which had the explicit aim of ensuring protection of fundamental rights and freedoms, and in particular the right to privacy. While the acts put the onus on employers to safeguard personal information insofar as they have no direct business case to use it, business interests can override privacy of employees.