BALANCING YOUR RIGHT TO PRIVACY AGAINST THE PREVENTION OF SERIOUS CRIME THROUGH ADVANCED SURVEILLANCE TECHNIQUES
In this post Michael Abiodun Olatokun, of London Southbank University, discusses how the Human Rights Act has assisted UK courts in balancing the competing aims of public safety against non-interference with citizens’ right to privacy, and notes the crucial role of the Act in holding the police accountable for their use of surveillance technologies.
Policing in the United Kingdom is at a problematic juncture; it has been suggested that distrust in law enforcement agencies is at an all-time low [1]. A recent report of the Joint Committee on Human Rights found that 85% of black people in the UK believe that they are not treated with parity by the police, and 77% that their human rights are not as adequately protected as those of Caucasian Britons [2]. As a result, 2020 saw the growth of campaigns to ‘Defund the police’ and further protests in light of the disproportionate use of stop and search powers against minority ethnic communities [3].
The public outcry for police accountability is exerting a strategic influence over the police to tackle wider societal injustices [4]. Their second most significant influence is technological innovation. Police leaders such as Cressida Dick have expressed a desire to incorporate novel tools into police operations to keep the public safe [5]. This has ushered in the use of devices such as facial recognition cameras, but these tools have the potential to further increase public antipathy towards the police.
In addition to facial recognition cameras, some countries have begun to use algorithmic tools in policing such as predictive analysis to determine which neighbourhoods should be subject to patrols, and some American courts are using formulae to determine sentences for those convicted of crimes.
The inexorable tide of technological tools in justice exerts a palpable effect on the rights of citizens, and this paper argues that recourse to the European Court of Human Rights’ (ECtHR) external perspective is helpful, and will remain so in the UK for years to come. The paper also argues that European Convention on Human Rights (ECHR) jurisprudence has provided assistance on how public authorities might balance obedience to public law duties on the one hand and the need to keep public trust on the other.
ECtHR case law helps police forces to understand where their use of novel technologies engages fundamental rights
Section 2(1) of the Human Rights Act (HRA) 1998 contains a provision (the duty) that courts must take into account the jurisprudence of the ECtHR in determining any question which has arisen in connection with an ECHR right. This is a key provision often relevant to judicial review litigation involving police forces.
The duty was applied in the recent case of Bridges v South Wales Police [6].This litigation constituted the first challenge to the lawfulness of facial recognition cameras in the world. The specific technology involved would first compile biometric databases of wanted persons, it would be deployed in open spaces, it would scan the faces of members of the public, then collect biometric information and compare the captured information against the database.
Amongst other grounds, the claimant argued that the use of the facial recognition cameras was in breach of Article 8 ECHR on the basis that the use of facial recognition was not sufficient to be ‘in accordance with law’ for the purposes of Article 8(2) ECHR. The Court of Appeal ultimately ruled that the regime did not meet these requirements and that South Wales Police acted unlawfully in that regard.
The case is important because it illustrates the significance of ECtHR jurisprudence in ensuring the common law keeps pace with developments in modern technology.
A line of ECtHR case law clarifies how the collection of data by police forces can engage the right to privacy. Rotaru v Romania (2000) showed that “public information can fall within the scope of private life where it is systematically collected and stored in files held by the authorities,” and PG v United Kingdom (2001) illustrated that covertly recording suspects’ voices for the purposes of future voice recognition may also constitute a violation of citizens’ rights. The same is true of the collection of fingerprints; S v United Kingdom (2008).
The knowledge that their activities may constitute an interference with Article 8 ECHR enables forces to ‘get ahead of the game’ by conducting public information campaigns that make citizens aware of the covert surveillance technologies that they will deploy, increasing goodwill and ensuring great accountability for their actions. This foresight also allows forces to design their operations in such a manner as to avoid disproportionate interference with citizens’ rights when deploying these new technologies.
ECtHR case law helps police forces to understand how their use of novel technologies can comply with rule of law requirements
The jurisprudence developed under the influence of Article 8 ECHR also helps UK courts to preserve core tenets of the UK constitution. S v UK (above) established the standard required of legal frameworks in order to satisfy the Article 8(2) ‘in accordance with law’ provision. The UK Supreme Court in R (Catt) v Commissioner of Police of the Metropolis and the Court of Appeal in Bridges relied heavily on the Grand Chamber’s ruling in S v UK in the most important police law cases of recent years, and it is vital to the preservation of the rule of law that the test remains good law. The test had 6 hallmarks that, where present, would point to a legal framework that was sufficient to be ‘in accordance with law’:
a. A basis in domestic law so as to be compatible with the rule of law;
b. The legal basis should be accessible;
c. The law must afford adequate protection against arbitrariness;
d. A discretionary power must be balanced by safeguards;
e. There should be a framework akin to a framework of law governing enforcement;
f. There should be reasonable predictability.
Conclusion: ECtHR case law is flexible and facilitates proportionate law enforcement activities
One of the arguments frequently raised against the section 2 HRA duty is that it ties the hands of police in being able to use covert surveillance technologies in order to track the activities of terrorists. The reality is much more nuanced than this, and a wide margin of appreciation has been afforded to states by the ECtHR in tracking those that might harm the public.
ECtHR jurisprudence is littered with cases in which the Court found an interference with citizens’ rights to be lawful due to its justification with regard to Article 8(2). From Uzun v Germany where the claimant’s car was tracked via GPS, to İrfan Güzel v Turkey where telephones were bugged, to indefinite retention of terrorists’ photographs in Murray v United Kingdom.
The ECtHR case law is no straitjacket or proscriptive constraint, but a creative and genuinely helpful network of decisions that provides guidance on how states might balance the competing aims of public safety against non-interference with citizens’ rights, particularly the right to privacy. This was reinforced in the Big Brother Watch v UK litigation in which the UK Government Communications Headquarters (GCHQ) system of comprehensive surveillance was ruled to be unlawful because it lacked sufficient oversight for its accountability framework to have the ‘quality of law’. The ECtHR case law will help decision makers to cure deficits in the future to define the standards their data use will be held to with transparency and accountability that is absent at present.
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