Is Greater Judicial Oversight of Surveillance Decisions Needed?
18/11/2011
Surveillance laws must be overhauled to prevent unnecessary, unwarranted and unchecked state intrusion, says human rights organisation, Justice in their report “Freedom from Suspicion: Surveillance Reform for a Digital Age”, . Philip McLeish of GCN was interviewed for Lexis Nexis Current Awareness (published 16/11/11) about the shortcomings of the Regulation of Investigatory Powers Act 2000.
Extracts from the article as follows:
Phil McLeish points out that “according to art 8 ECHR, the state should only be spying on your client where this is ‘in accordance with the law’ and ‘necessary’”. He explains: “In most areas where qualified rights like art 8 are engaged, the overwhelming bulk of human rights jurisprudence concerns proportionality—how the balance comes to be struck between a person’s right and the state’s need to restrict it. But because your client is unlikely to ever know that he is being spied on, and the state will neither confirm nor deny the fact, litigation around proportionality hardly ever arises. It would be like a blindfolded boxer laying a blow on a nimble dancer in an empty hall.”
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He says the most important change needed is to move from a system of executive self-authorisation to one in which there is far more judicial oversight of the decision to institute surveillance. “This,” he adds, “would bring us in line with other European and common law countries—nearly all of whom require judicial authorization of interception, and many of whom also require it when undercover agents are deployed or communications data accessed.”
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The JUSTICE report identifies a number of specific areas ripe for legal challenge. For instance, says McLeish, Prison Rule 35A which, in breach of art 8, purports to grant in certain circumstances a power to a prison governor to authorise interception of solicitor-client conversations without judicial warrant. He adds: “The report also raises interesting questions as to whether the power to demand provision of an encryption key may in certain circumstances breach the bar on self-incrimination built into art 6.”
Quick links
> A link to the JUSTICE report is here: http://www.justice.org.uk/news.php/52/justice-publishes-freedom-from-suspicion-surveillance-reform-for-a-digital-age
> The full article can be found on under Current Awareness on the Lexis Nexis network (subscription only) ref: LNB News 16/11/2011 105 "Is Greater Judicial Oversight of Surveillance Decisions Needed?" Click here to sign in if you have an account.
