Human Rights Advocacy
Admissibility of covert surveillance evidence
Abu Hena Mostofa Kamal
In recent years technology has developed at an unprecedented rate. Public authorities, concerned with law enforcement and national security, are using sophisticated modern equipment for surveillance and interception activities to cope with the time. Innovative technologies have enhanced their ability not only to track people through their computerised record trail, but also to see through walls, overhear conversations and follow movement of wrong doers. Satellite photographs, massive millimeter wave detectors or millivision, tubular and parabolic microphones, Van Eck Monitoring device, wiretapping, thermal imaging, mobile phone tracking are the more esoteric examples of modern surveillance technology. But do they produce admissible evidence for the court or are the intrusions upon the privacy of an individual justified? Despite repeated statutory attempts to regulate police and security service interception activity, controversy still persists. In this article we will try to understand three basic legal points regarding the admissibility of covert surveillance evidence:
a. Are directed and intrusive surveillance activities justified?
b. Are the data or evidence collected and conserved by surveillance and interception gadgets admissible in the court room?
c. Are there any limits that can be placed on the power of technology so it will not shrink the realm of guaranteed privacy?
Are directed and intrusive surveillance activities justified?
Blackstone long ago wrote that "Eavesdroppers, or such as listen under walls or windows, or the eaves of a house, to hearken after discourse, and thereupon to frame slanderous and mischievous tales, are a common nuisance" punishable at common law. But many jurists promote the view that it is imperative to use surveillance or interception devices "in cases vitally affecting the domestic security." They advocate that law enforcement authorities should be given the power to approve the installation of surveillance devices when required in the interest of internal security or national safety. As privacy is citizens' fundamental right any intrusion upon it cannot be justified easily .As a consequence there is a public policy dilemma as they seek a balance between the public interest in the prevention of crime and the need for constraints on state power to intrude into individual life. In an attempt to find a balance between the interests of the individual and the interest of a state, 'proportionality' becomes a vital factor. Therefore, public authorities should act with prudence and be cautious about the fact that any unscrupulous conduct of them could cause severe intrusion upon one's privacy.
If a measure, which restricts the right of an individual, and does so in such a way as to impair the very essence of the right, it will almost certainly be disproportionate. [Rees v United Kingdom (1987) 9 E.H.R.R. 56] .Furthermore, "the Court must be satisfied that, whatever system of surveillance is adopted, there exist adequate and effective guarantees against abuse. This assessment has only a relative character: it depends on all the circumstances of the case, such as the nature, scope and duration of the possible measures, the grounds required for ordering such measures, the authorities competent to permit, carry out and supervise such measures, and the kind of remedy provided by national law [the European Court stated in Klass v Germany, (1979) 2 E.H.R.R. 214 at para.50.].” The European Court adopted the most acceptable approach and provided proper guideline to determine whether an interception is ultra vires or not [JUSTICE: Under Surveillance: Covert Policing and Human Rights Standards (1998)] .The summaries of EC guidelines are as follow:
- Legitimacy: Public authorities should not step beyond their jurisdiction and act legitimately. Proper disclosure should be maintained so that citizens are aware of the circumstances under which surveillance may be undertaken or communications intercepted.
- Essentiality: The interference should be essential.
- Proportionality: The intrusive measures should be proportional to the seriousness of the offence, bearing in mind the rights not only of the individual but also those of others likely to be affected.
- Accountability: There must be proper controls and adequate and effective remedies against abuse.
But when the public authorities become the intruders, the consequences are apt to prove more than a mere nuisance. In this case, the court remains the main source of justice. In this circumstance the courts must assess the validity of public authority's action against a set of coherent standards. These include consideration of whether the action in question satisfies a legitimate ground for interference with the right, and, equally, whether such action is necessary and proportionate.
Are the data or evidence collected and conserved by modern-day surveillance and interception gadgets admissible in the court room?
Whatever potentiality the surveillance evidence possesses for the enforcement agencies, it is evident that court will not recognise its full prospect due to the lack of reliability. Defence lawyers always challenge the admissibility of innovative surveillance and interception technologies on the basis that new techniques are untrustworthy as there remain chances of manipulation. Sometimes evidence can be excluded for its illegal nature where public authorities act beyond their jurisdiction. But once an enforcement authority succeeds to maintain 'Proportionality' and 'Essentiality' remaining in their jurisdiction and if the intercepted evidence is free from manipulation and inaccuracy, courts are bound to accept that evidence. But it should be remembered "... [In respect of national security as in respect of other purposes, there has to be at least a reasonable and genuine link between the aim invoked and the measures interfering with private life for the aim to be regarded as legitimate. To refer to the more or less indiscriminate storing of information relating to the private lives of individuals in terms of pursuing a legitimate national security concern is ... evidently problematic." -Judge Wildhaber in Rotaru v Romania (8 B.H.R.C. 449)].
Judicial construction
In R. v X (Telephone Intercepts: Admissibility of Evidence) [2001- 145S.J.L.B. 28 ],defendants, who had been charged with offences related to possessing and misusing drugs , appealed by saying that evidence of intercepted telephone conversations that had been obtained in a foreign jurisdiction was inadmissible and should be excluded under the prevailing regulations of UK. Dismissing the appeal the House of Lords held that as the telephone interceptions had been undertaken lawfully outside UK with the aim of bringing about a criminal prosecution, and as such evidence had not been used for any other purpose nor held for longer than was necessary, there had been no illegality and the surveillance evidence was admissible. Same approach has been taken by American Court in Kyllo III in determining the question about admissibility of surveillance evidence. In this case enforcement authorities used thermal imaging device to identify indoor cultivation of marijuana plant belonged to Kyllo without securing a warrant. The survey revealed unusually high amounts of heat emanating from the walls of the residence. Then a warrant was issued and a raid uncovered the presence of an extensive indoor marijuana growing facility. Kyllo was convicted of drug manufacturing and sentenced to 63 months in prison. Kyllo then appealed by saying the warrantless use of the thermal imager was unconstitutional.
As we know, the indoor marijuana cultivation process requires extensive use of artificial lighting. These lights generate enormous amounts of heat that is emanated outdoors either naturally or through a ventilation system installed by the cultivator. A thermal imager, placed outside the residence, can be used to measure and record the magnitude of these heat emissions. In Kyllo I[533 U.S. 27 (2001)], the Supreme Court held that 'the use of a thermal imager to detect heat emissions from a home is not authorised under the Fourth Amendment and is therefore presumptively unreasonable without a warrant.' But later in the United States v. Kyllo [190 F.3d 1041 (Kyllo III)], a panel of the Ninth Circuit held that the government's warrantless use of a thermal imager was not an unreasonable act and thus the evidence is admissible. The court reasoned that because the technology merely measured "wasted or depleted heat" and did not reveal any "intimate details" inside Kyllo's home, it was constitutionally legitimate. Accordingly, the court concluded that one's home is not safeguarded from such outside, non-intrusive government observation.
It should be noted that not always courts feels reluctant to find useful evidence (unlawfully obtained surveillance evidence) as inadmissible. In Khan v United Kingdom [(2001) 31 E.H.R.R. 45], unlawfully obtained surveillance evidence was held to be admissible. In this case, The Court conceded that the installation of the listening device had involved a civil trespass. But the Court accepted that without the tape recording there would be no case to answer. The trial judge, therefore, declined to exclude the taped conversations under the prevailing law of UK. Khan was sentenced to three years' imprisonment. An appeal was made to the House of Lords. The House took the view that the trial judge had been justified in not excluding the evidence. Despite finding unanimously that Khan's right to privacy had been violated, the European Court held that Khan had received a fair trial .
Further, where a court believes that surveillance evidence is possibly manipulated, it may ask for supporting evidence. For example, if X, an enforcement agent, produces a satellite image to the court to prove that Y is using his company trucks to carry illegal equipment and chemicals, court may ask the question -- whether the satellite had been working properly at the time it shoot the image ,so further proof of correct functioning ,reliability and accuracy from an expert witness might be necessary in this case (Satellite photograph 21st Century evidence by Ray Purdy & Richard Macrory, New Law Journal, March 7 ,2003).
Are there any limits that can be placed on the power of technology so it will not shrink the realm of guaranteed privacy?
Electronic surveillance is an essential part of modern policing but we cannot rely on the courts to ensure that they do not infringe fundamental liberties. There is indeed a need for a proper legislative framework covering the whole range of such operations. But unfortunately, most states are reluctant to confront fundamental issues relating to policing and privacy. They have consistently failed to impose adequate controls on surveillance and interception activities of their public authorities. It's true most states, in recent days, have legal framework authorizing surveillance activities but they do not provide sturdy shield against any intrusion. Limited scope of prevailing legal regulations left much surveillance practice beyond authorization. Therefore, new regulations should be enacted to provide proper guideline for those who are exercising investigatory powers such as telephone and mobile tapping, first hand recording conversation etc.
As we know, the extent of guaranteed privacy of an individual is still uncharted area for the modern law; therefore it is for the judiciary to assess the validity of police action against a set of coherent standards (Test of essentiality and proportionality). It should also be explicit that court should not rely on any surveillance evidence when its procedural safeguards are infringed.
Recently, our President has signed a decree allowing the country's public authorities such as NSI, DB and DGFI, police to intercept phone calls and e-mails of any citizen without seeking the permission of the judiciary. This decree further allows investigators to use intercepted telephone conversations as evidence in court. But the extent and scope of this declaration is still blurred. Though several western countries have this kind of prerogatives or regulations but they legitimated electronic intrusion only to protect themselves from lawlessness or to preserve domestic tranquillity or to smack organised crime. And their public authorities are not free from total accountability.
If our government uses due diligence and makes sure that (a) public authorities will be accountable for their actions, (b) they will maintain Proportionality and Essentiality remaining in their jurisdiction, (c) they will maintain proper disclosure (the absence of any disclosure obligation means that the majority of interferences with privacy will be undetected), (d) judiciary will be robust enough to help shape the occupational and professional culture of the enforcement agencies, vigilant citizens will not have any objection in accepting this kind of Presidential Order.
The author had his graduate and post graduate legal degrees from Great Britain. Right now he is studying in University of Aberdeen.
