Posts Tagged 'European Convention on Human Rights'

All of Rubin’s cards were marked in advance, the trial was a pig-circus, he never had a chance…

The trap is set... or is it?

Not too long ago an officer I know was sat in his unmarked vehicle on a car park at a local supermarket. Looking around he noticed a well known criminal, let’s call him Billy, loitering about. Knowing it was likely Billy was up to no good he continued to watch and did not have to wait long before Billy proved his instincts correct. Billy sidled up to an unattended car, broke in and began removing items from the glove box.

Unfortunately for Billy no sooner had he done so he found himself tackled to the ground and placed under arrest. A short trip to the cells later, Billy was interviewed but protested his innocence claiming he was a victim of ‘entrapment’.

What is entrapment though and why was Billy very much not a victim of anything other than his own stupidity?

In England and Wales, entrapment is where a person has been enticed into committing an offence that they otherwise would not have committed. To claim that a person has been the subject of entrapment is to say that police have provoked them into the commission of a crime. It is to say that they have not broken the law voluntarily, that the circumstances have been engineered to ensure their guilt.

Arguments about entrapment can be relevant both when it comes to obtaining evidence relating to an offence which has already been committed and also in securing evidence for crimes that have not yet happened.

When it comes to deciding whether evidence should be excluded because it has been obtained by entrapment, the courts will consider things such as how difficult a particular offence is to detect and whether the crime investigated is particularly prominent is a certain area. Evidence obtained through a degree of entrapment is not automatically excluded, it is down to the court to decide the necessity for the police’s course of action.

As entrapment involves enticing someone to break the law, simply providing them with an opportunity to do so is not likely to qualify as entrapment. This means that undercover ‘sting’ operations – sending scruffy-looking officers to buy drugs off a street trader for example – would not amount to entrapment as the officer has done no more than given the dealer an opportunity to ply his trade, allowing him to voluntarily break the law in the process.

So was Billy the victim of a cruel police entrapment? He hadn’t been provoked into breaking into the car, nothing has been set up to ensure he did so and the fact that he did it right in front of a police officer was his own misfortune. A victim of entrapment he was not.

I’m conquered in a car seat, and I’m lookin’ straight at you…

This is what most police stakeouts actually look like. Probably.

The stakeout is a big part of any decent cop film. Two lonely cops sitting in their car for hours at a time, eating junk food and watching nothing happen at a shady address across the street. Is it this simple though in real life?

The short answer is yes. And no.

Whilst a decent stakeout will almost certainly involve doughnuts and boredom, it will also involve getting the proper legal authorisation to be ‘stakeouting’ in the first place.

In England the capability for public bodies to carry out surveillance is covered by the Regulation of Investigatory Powers Act 2000, also known by time pressed, acronym fond police officers as ‘RIPA’. This Act tells public organisations such as the police, councils and even, when he’s in the UK, James Bond, what they can and can’t do when it comes to covert investigations and the collection of private information.

The Act is important as without there being proper legislation and scrutiny in place, covert surveillance could be seen as in infringement on Article 8 of the European Convention on Human Rights which grants everyone the right to ‘respect for his private and family life, his home and his correspondence’.

Article 8 is one of the Convention’s ‘qualified‘ rights meaning that in the right circumstances, surveillance can be carried out if it is necessary, done so legally and in the pursuit of a legitimate aim.

The Act defines ‘covert‘ in relation to steps having been taken to ensure the subject is unaware that surveillance is taking place. ‘Surveillance‘ means monitoring, observing or listening to people, their movements, activities and includes making recordings of this information.

When it comes to the police stakeout, the Act splits our powers into two categories – ‘directed‘ and ‘intrusive‘ surveillance.

Directed surveillance means employing techniques during the course of an investigation that are likely to result in the obtaining of private information about a person. Information collected as a result of day to day activities or in response to something that has happened there and then (hiding behind a lamp post to observe suspicious activity, for example) would not qualify as ‘directed’ for the purposes of the Act.

Intrusive surveillance is different to the above as it involves the collection of information taking place inside a residential premises or private vehicle, be it by placing a bug or having an officer stood in the corner of a room disguised as a pot plant. Because it involves intentionally invading a place in which a person could reasonably expect privacy, intrusive surveillance is, to understate, a big deal.

Who can authorise us then to cut eye holes in a newspaper and sit outside someone’s house? Well, for directed surveillance we need to have obtained the authorisation of a Superintendent.

To launch intrusive surveillance though, we need to go to the head honcho himself – the Chief Constable. Even with the green light from the Chief though, the authorisation also needs the approval of the Office of Surveillance Commissioners before it can go ahead. In addition to this, intrusive surveillance will only be authorised in relation to the investigation of the most serious crime, again ensuring that it is proportionate and so does not breach Human Rights law.

A stakeout isn’t simply a matter of parking up outside someone’s house and nor should it be. The Regulation of Investigatory Powers Act is there to ensure that police powers are set out clearly and used properly. It doesn’t stop us spending long nights guzzling doughnuts and talking about the ball game, it just means that we’re there for the right reasons.

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