Investigate the investigative process

Justice's latest report examines the legality of certain surveillance methods and looks forward to the new Human Rights Bill, says Madeleine Colvin. Madeleine Colvin is director of legal policy at Justice.

Modern policing no longer relies solely or mainly on detection, confession and the hope that witnesses will come forward. Increasingly, police, customs and Excise and other law enforcement agencies are turning to proactive, intelligence-led policing methods. Essentially this means using covert investigative methods to target known or suspected criminals.

These developments are set to change the whole nature of modern policing. Human rights organisation Justice has just published a report which examines several key areas of covert policing in detail such as the use of informers and undercover officers, and the increasing employment of sophisticated aural and visual surveillance devices. It looks at the legality of these methods compared with the standards set out under the European Convention on Human Rights, particularly in relation to privacy and fair trial rights.

The report's overall conclusion is that the present legislative and procedural framework governing such activities is out of date and inconsistent. This is especially true in relation to the Interception of Communications Act 1985 and the Police Act 1997 which regulate telephone taps and bugging devices respectively. They now both have large gaps where technology has outstripped the present legal and procedural safeguards.

In other areas, such as informers and undercover operations, there are no statutory controls, only internal administrative guidelines. This is despite the fact that their use may affect the fairness of any subsequent trial. In addition, the report identifies the inadequacy of traditional data protection controls to cope with increasingly sophisticated databases holding "criminal intelligence" information.

The ability to store, analyse and exchange large quantities of data, much of which is highly speculative, is viewed by the police and others as the backbone to successful investigations, both in terms of domestic and international policing.

Justice takes the view that the current Human Rights Bill will bring these matters into sharp relief. Although it does not provide any new rights, the Bill makes existing European Convention rights applicable in UK courts, and binds the courts to enforce them. It therefore provides both the opportunity and the necessity to re-examine and reform present laws and systems so that they comply with the requirements of the Convention.

The Justice report therefore recommends a number of changes to law and practice in order to provide coherent and consistent regimes which law enforcement agencies and individuals can rely on. These include a single, regulatory framework to cover lawful interference of all forms of communications, including e-mail. The informer system and undercover operations should be subject to a proper legal regime for the first time. This should take the same approach as the Police and Criminal Evidence Act 1984 and aim to provide a model for operational accountability in this area.

Moreover, there needs to be an inquiry into current practices and future developments in the holding and processing of criminal intelligence. This should consider whether there now needs to be a separate, statutory data protection regime to cover personal data held for policing purposes.

"Under surveillance – covert policing and human rights standards" is available from Justice, 59 Carter Lane, London EC4V 5AQ for £15.