Covert Policing Law Blog
Essays on Surveillance LawCambridge Analytica: musings on bulk personal datasets and the Investigatory Powers Act 2016
It was reported in the Guardian last month that Cambridge Analytica’s parent company, SCL, held provisional List X status, until 2013. According to the government’s own website this means it was a company “operating in the UK who are working on UK government contracts...
JUDICIAL APPROVAL OF WARRANTS, AUTHORISATIONS AND NOTICES UNDER THE INVESTIGATORY POWERS ACT 2016: a review of the Investigatory Powers Commissioner’s Office first Advisory Note.
The Investigatory Powers Commissioner’s Office (IPCO) has taken a further step in building confidence as the independent oversight body for surveillance activities by publishing its first Advisory Notice (AN) No. 1/2018 on “Approval of Warrants, Authorisations and...
“Blood on the Page”: a review of Thomas Harding’s book on the secret trial of Wang Yam
At an event last year celebrating the unparalleled contribution made by Professor Clive Walker QC to the law, in particular in the fields of miscarriages of justice and terrorism, one of those present reflected that there seemed to be an absence in the modern criminal...
Disclosure and Public Interest Immunity
There has been a huge amount of authoritative commentary on the issue of disclosure in the aftermath of “near misses” like the Liam Allan case. Sadly, in the absence of the scrutiny that followed his case and others, it is unlikely there would be any significant...
Faustian pacts (or making deals with the devil): trying to make sense of the sentencing of “super grass” Gary Haggarty
Introduction The response in England and Wales to the sentencing of Gary Haggarty, a loyalist terrorist, who was facing over two hundred charges, including five of murder was somewhat and characteristically muted. Haggarty, who admitted the offences, was sentenced to...
Approaching individuals as potential Covert Human Intelligence Sources and the need to authorise under Part II, Regulation of Investigatory Powers Act 2000: an overview of Sheridan v CC of Police Service Northern Ireland
Summary of facts Background Brian Sheridan was arrested in 2011. He was a passenger in a car with others and found in possession of a number of rifles and handguns. It was alleged he and his associates were on their way to bury the weapons as part of terrorist-related...
The Intelligence Gap: what any review into alleged failings after recent terrorist attacks needs to address and who needs to address it.
Three terrorist attacks in England in as many months, the most recent on 3 June starting on London Bridge and ending in Borough market. In each case, there has been a suggestion that some of those involved were known to the intelligence...
SPIES, LIES AND FIVE EYES: why GCHQ could not and would not have carried out surveillance on the presidential candidate.
In order for GCHQ to carry out technical surveillance on Donald Trump it would have needed a warrant signed personally by the Secretary of State. Obtaining a warrant is governed by section 5 of the Intelligence Services Act 1994 (ISA). This provides, insofar as...
Reflections on Love v National Crime Agency
Officers from the National Crime Agency (NCA) arrested Lauri Love during a search of his parent’s home on 25 October 2013. The alleged offences were under s 1(1) and (3) of the Computer Misuse Act 1990 (CMA 1990). He was released on police bail but in or around July...
GCHQ and its Chamber of Secrets
It was reported on Sunday that GCHQ intervened to prevent the leak of the sixth instalment of JK Rowling’s Harry Potter series. In response the spy agency said that it “didn’t comment on [its] defence against the dark arts”. The story was no doubt intended to...
Neither Confirm Nor Deny and Restriction Orders in Public Inquiries
[The subject of this blog forms the basis of a paper due to be published later this year. As a result it focuses on a discrete issue touching on the policy of Neither Confirm Nor Deny (NCND) in the context of public inquiries.] The Pitchford Inquiry into Undercover...
In a word: privacy and the Investigatory Powers Bill
The Intelligence and Security Committee (ISC) in its report in response to the draft Investigatory Powers Bill (the Bill) said, “Overall, the privacy protections are inconsistent and in our view need strengthening. We recommend that an additional Part be included in...
Departures from open justice in criminal proceedings: Guardian News and others v R and Incedal
On 11 November 2014 Erol Incedal was convicted of possessing a document containing information of a kind likely to be useful to a person committing or preparing an act of terrorism: s 58(1) (b) Terrorism Act 2000 (the 2000 Act). The jury had been unable to reach a...
Of Prime Ministers and Presidents: a review of the ISC Report on the Investigatory Powers Bill, actually
The Intelligence and Security Committee (ISC) has published its report on the Investigatory Powers Bill (the Bill). The scope of the report is limited to the work of the intelligence agencies: the Joint Committee will examine all other aspects of the Bill and is due...
Recruiting informants and radicalisation: legal issues
Stories that young men have been radicalised following attempts by the Security Service (MI5) to recruit them as informants (technically known as Covert Human Intelligence Sources, or as the former Chief Surveillance Commissioner Sir Andrew Legatt observed,...
The Office of Surveillance Commissioner’s Report 2014 – 2015: a review
Sir Christopher Rose, former Chief Surveillance Commissioner, has published his last report. Those who have read his annual reports may think a fair epitaph of his tenure might be, to quote `Shakespeare, “no legacy is so rich as honesty”. Others could fairly observe...
Defining Surveillance
In his one of his greatest novels, J M Coetzee wrote, “the masters of information have forgotten about poetry, where words may have a meaning quite different from what the lexicon says, where the metaphoric spark is always one jump ahead of the decoding function,...
Lawful Surveillance
Arguably sections 27 and 80 are the most important provisions in the Regulation of Investigatory Powers Act 2000 (there are similar provisions for Scotland and Jersey) but which have not received the consideration they deserve and there is little judicial guidance....
Interception of Prison Telephone Calls
In R v Knaggs [2015] EWCA Crim 1007, a recent interim judgment, giving directions, the Court of Appeal identified the issues that arise out of the use by police and prosecuting authorities of prison intercept. The interception of prison communications may be lawful...
Communications Data and Journalistic Sources
During the investigation in 2012, called Operation Alice, into what became known as “Plebgate”, the Metropolitan Police Service obtained a total of four authorisations for communications data targeting journalists working for The Sun newspaper for the purposes of...
Covert Surveillance and Legal Professional Privilege: a view from the European Court of Human Rights
The case of Re: McE (Northern Ireland) [2009] UKHL 15 which led to the introduction of the Regulation of Investigatory Powers (Extension of Authorisation Provisions: Legal Consultations) Order 2010 and, in part, the revision of the Code of Practice on Covert...
Private information and juveniles
Capturing the images of children, whether by the press or the state, is fraught with difficulty. The Supreme Court considered the issue recently in Re: J38 [2015] UKSC 42 but even it was unable to agree. Its importance in the operational planning of covert...
Negligent handling of sensitive material, duty of care and public policy remedies
In CLG and others v Chief Constable of Merseyside [2015] EWCA Civ 836 the Court of Appeal considered the case of CLG and his family that arose out of the disclosure of their address to defendants in criminal proceedings that was known – because of threats to their...
Surveillance of MPs and the Wilson Doctrine: no inherent legal force but applies anyway
The case of Caroline Lucas and others v Security Service and others [2015] UKIPTrib 14_79-CH in the Investigatory Powers Tribunal considered as a preliminary issue the status, meaning and effect of what is known as the Wilson Doctrine. The Doctrine originates in the...
Informants and the Justice and Security Act 2013: when government hoists the neither confirm, nor deny flag, the court should not automatically salute it
The Court of Appeal in McGartland v Secretary of State for the Home Department [2015] EWCA Civ 686 has recently considered procedural issues arising out of a civil claim brought by the well-known informant Martin “Marty” McGartland against the Security Service for...
Applications for property interference, the duty of candour, the risk of acquiring material covered by legal professional privilege and the limitations of prior judicial approval
Judgments of the Investigatory Powers Tribunal (IPT) are not routinely published but those that are offer a rare and often valuable insight on how the judiciary consider authorisations for property interference and surveillance should be handled. The recent case of...
Police officers participating in crime and stealing the identities of dead children: an overview of legal principles and a view on unprincipled practices
“Secrecy, being an instrument of conspiracy, ought never to be the system of a regular government” Jeremy Bentham Mark Kennedy, the undercover police officer who infiltrated environmental protest groups in the East Midlands almost certainly participated in crime...
Courting suspicion: the flawed system of compensation in cases where justice has miscarried
Preamble When you travel into Paris, it is possible to observe that those unpleasant aspects of inner city life that would otherwise detract from the aesthetic of the city are pushed to the suburbs - quarantined if you will - so that the capital is not sullied with...
THE PROTECTED PERSONS SERVICE: AN AFTERTHOUGHT OF A FAILING SYSTEM OR STEP IN THE RIGHT DIRECTION?
The Protected Persons Service was announced on the 28 December 2012. It will come under the auspices of the National Crime Agency and it is said will combine the expertise of police forces and other “service providers” with a view to standardising witness protection...
On Secret Trials
On Secret TrialsJeremy Bentham said that secrecy was an instrument of conspiracy and ought never to be the system of regular government. The reason why can be no more eloquently captured than by Toulson LJ in the recent case of R (Guardian Newspapers) v City of...