The new Tribunal
S.65: Created the Investigatory Powers Tribunal. It has 3 main functions:
- Hearing human rights challenges to surveillance
- Playing a complaints role if someone is unhappy with perceived interception of communication
- Hearing cases where a person believes they have suffered a detriment by having information excluded in court (not applicable for criminal proceedings)
1. Hearings are Secret
2. There is no automatic right to oral hearing
3. There is a power to ensure that the public authority and the applicant have separate hearings
4. There is a requirement to supply the information the Tribunal needs to make a decision, but there is no need for the tribunal to share it with the other party where there are separate hearings
5. The Tribunal will state their decisions, but not reasons for their decisions.
Evaluating the Tribunal
· A complaints mechanism allowing individuals to go to an independent and impartial body who decide if an illegal action has taken place. This is positive; there is a place to complain, and it is an independent body.
· Secret surveillance means that people will not about the surveillance; so people can’t complain about it. Unlike some other EU countries, there is no requirement to inform people of it. If Police officers or state officers are aware of illegal or unjustified surveillance, there is no way for them to complain to Commissioners or the Tribunal. Still, at least there is a place to complain. BUT; the tribunal is not holding the state to account, as most people will not know if their privacy has been unjustly intruded upon.
Evaluating the Tribunal
· Separate hearings and no need to share information between parties means that there is no knowledge of opposing evidence or arguments; so there is no way to argue against it. It is good that there is a place to complain BUT it is unfair. You cannot fight a case when you don’t know the other side’s story.
· RIPA also tried to make it impossible to seek a remedy in court. The Only appeal route is to the Court of Human Rights. So, there is no judicial oversight of the system, even though the tribunal is the venue for hearing human rights breaches cause by surveillance. It is good there is a place to complain. BUT, it is too expensive to get a second hearing. The judiciary are also removed from their position of checking the executive.
Current Debate: Interception of Communication
Currently: can’t use evidence gathered by interception of communication in court (though, covert surveillance evidence can). This is different from other countries where phone tap evidence and email evidence have been used to convict in court. Has been especially useful in America in gaining convictions against crime families like the Genovese, Bonanno and Gambino families.
Liberty and other human rights groups believe intercept evidence should be used in in court; but, the State are against it.
In Favour of Using
· Using interception of communication evidence in court will let people know their communication has been interfered with, allowing for them to complain. The current doesn’t inform a person of it.
· Use of interception of communication can be fully tracked if the evidence gathered through it is used in court. It will inform pressure groups and the public of the extent of interception of communication.
· Interception of Communication evidence will stop the need for 28 day detention and control orders. If interception of communication evidence proves an individual is a terrorist then a trial can take place and appropriate action be taken.
· The risks of using interception of communication evidence outweighs the benefits of doing so. There is the possibility that criminals will become aware of new technology and adapt to avoid interception of communication.
Chilcott Review 2008
In favour of use of interception of communication in court in some cases. Chilcott felt it should not be used against the wishes of the agencies that secured it, or if other evidence can be used instead.
Previous Prime Minister Gordon Brown talked on implementing recommendations on interception evidence, in a way that would protect surveillance techniques.
Interception of Communication (Admissibility of ev
· introduced on allowing the use of interception of communication evidence in some cases. Has only had 1st reading as of May 2012; yet to be fully debated.