Review of emerging technologies in policing: findings and recommendations

Appendix 4: International Case Law

Citation

Breyer v Germany (2020) 71 E.H.R.R.

Topic

Data sharing/access

Key Facts/Issues

Concerned the retention of telecommunications data that could be accessed by Law Enforcement.

Findings/Relevant Judicial Reasonings

The Court acknowledged that “where there has been a compilation of data on a particular individual, the processing or use of personal data or publication of the material concerned in a manner or degree beyond that normally foreseeable, private life considerations arise. Article 8 of the Convention thus provides for the right to a form of informational self-determination, allowing individuals to rely on their right to privacy as regards data which, albeit neutral, are collected, processed, and disseminated collectively and in such form or manner that their art.8 rights may be engaged.”

The Court made clear that the storage of information that relates to an individual’s private life is an interference within the scope of Article 8(1). However, the question that then has to be answered is whether that interference is justified in terms of Article 8(2). In order for it to be justified it would have to be in accordance with the law, pursue a legitimate aim and be necessary and proportionate.

In order to be ‘in accordance with the law’ “it is essential to have clear, detailed rules governing minimum safeguards concerning amongst other things duration, storage, usage, access of third parties, procedures for preserving the integrity and confidentiality of data and procedures for its destruction.”

Further, “an interference will be considered “necessary in a democratic society” for a legitimate aim if it answers a “pressing social need” and if it is proportionate to the legitimate aim pursued. The Court finds that the fight against crime, and in particular against organised crime and terrorism, which is one of the challenges faced by today’s European societies, upholding public safety and the protection of citizens constitute “pressing social needs”. It also recognises that modern means of telecommunications and changes in communication behaviour require that investigative tools for law enforcement and national security agencies are adapted.”

Citation

Big Brother Watch v United Kingdom (58170/13) [2018] 9 WLUK 157

Topic

The Regulation of Investigatory Powers Act for the bulk interception of electronic communications by UK security services did not contain adequate safeguards

Key Facts/Issues

N/A

Findings/Relevant Judicial Reasonings

N/A

Citation

Centrum for Rattvisa v Sweden (35252/08) [2018] 6 WLUK 691

Topic

Interception of communications

Key Facts/Issues

Under Article 8 of ECHR, Centrum för Rättvisa (a Swedish non-profit) complained that the Swedish state practice and legislation concerning signals intelligence had violated and continued to violate its right to respect for private life and correspondence.

Findings/Relevant Judicial Reasonings

Held

Complaint dismissed.

The court was aware of the potentially harmful effects that the operation of a signals intelligence scheme could have on the protection of privacy. Nevertheless, it remained important to bear in mind the importance for national security operations. Court took into consideration the threat of terrorism/serious cross-border crime/communication technology; yet the decision to set up a bulk interception regime to identify such threats fell within the state's margin of appreciation. When examining the Swedish system of signals intelligence in abstracto, the court had had regard to the relevant legislation and the other information available in order to assess whether, on the whole, there were sufficient minimum safeguards in place to protect the public from abuse. While there were some areas where there was scope for improvement, notably the regulation of the communication of personal data to other states and international organisations and the practice of not giving public reasons following a review of individual complaints, the system revealed no significant shortcomings in its structure and operation.

The scope of the signals intelligence measures and the treatment of intercepted data were clearly defined in law, the authorisation procedure was detailed and entrusted to a judicial body and there were several independent bodies tasked with the supervision and review of the system. Overall, and having regard to the margin of appreciation enjoyed by the national authorities in protecting national security, the Swedish system of signals intelligence provided adequate and sufficient guarantees against arbitrariness and the risk of abuse. The relevant legislation met the "quality of law" requirement and the "interference" established could be considered as being "necessary in a democratic society". Further, the structure and operation of the system were proportionate to the aim sought to be achieved. There had therefore been no breach of art.8 (see paras 179-181 of judgment).

Citation

Gaughran v United Kingdom (45245/15) [2020] 2 WLUK 607

Topic

Indefinitely retention of DNA/fingerprints/photograph after recordable offence conviction.

Key Facts/Issues

According to legislation, the applicant’s conviction was spent after five years. However, the policy of the Police Service of Northern Ireland (PSNI) was to retain indefinitely DNA profiles/fingerprints/photograph of any individual convicted of a recordable offence. The applicant claimed that this policy amounted to a disproportionate interference with the right to respect for his private and family life under article 8 and could not be justified.

Findings/Relevant Judicial Reasonings

The Court found that the retention of the applicant’s DNA profile, fingerprints, and photograph amounted to an interference with his private life The Court considered that most member States had regimes with time limits for retaining biometric data of convicted persons. The UK was one of the few Council of Europe jurisdictions to permit indefinite retention of DNA profiles. What was decisive was the existence and functioning of safeguards. The State had put itself at the limit of its margin of appreciation. So, it had to ensure that certain safeguards were effective for the applicant. The applicant’s biometric data and photographs had been retained without reference to the seriousness of his offence and without regard to any continuing need to retain that data indefinitely. Therefore the applicant could not request a review of the retention of his data, as there was no provision permitting erasure. The Court found that the nature of those powers failed to strike a fair balance between the competing public and private interests. The respondent State had therefore overstepped the acceptable margin of appreciation and the retention at issue constituted a disproportionate interference with the applicant’s right to respect for private life, which could not be regarded as necessary in a democratic society.

There had accordingly been a violation of Article 8 of the Convention.

Citation

Khan v United Kingdom (35394/97) [2000] 5 WLUK 326

Topic

Improperly obtained evidence from a secret listening device

Key Facts/Issues

Following a conviction of drug-dealing based on improperly obtained evidence from a secret listening device installed by the police. Appeal against conviction was dismissed on the ground that the invasion of his privacy was outweighed by the aim of proving he had been involved in serious crime. Complaints concern right to a fair trial was unfair, in breach of Article 6.

Findings/Relevant Judicial Reasonings

Held

There had been a violation of Art.8 and Art.13 of the Convention. The interference was found not to be "in accordance with the law". The national rules were only outlined in the non-statutory Home Office Guidelines and therefore the domestic law did not give protection against interference with an individual's rights. It was not the ECHR's role to determine whether the evidence was admissible, and it found that the secretly taped evidence did not render the proceedings wholly unfair, as the domestic courts could have used their discretionary powers to exclude the evidence under the Police and Criminal Evidence Act 1984 s.78. The criminal proceedings did not provide a suitable remedy or protection from abuse, as the only body to which he could complain about the police surveillance was the Police Complaints Authority (PCA). The ECHR found such an investigation would be insufficiently impartial and therefore Art.13 was also breached.

Citation

Liberty v United Kingdom (58243/00) [2008] 7 WLUK 25

Topic

Communications data/interception of communication

Key Facts/Issues

Civil liberties organisations alleged that between 1990 -1997 their telephone and electronic communications had been intercepted by the Ministry of Defence. In domestic proceedings, no contravention of the Interception of Communications Act 1985 had been found. The organisations appealed to the ECHR.

Findings/Relevant Judicial Reasonings

Held

Complaint upheld.

(1) Legislation allowed secret monitoring of communications, which posed a threat of surveillance for all those to whom the legislation might be applied. Accordingly, there had been an interference with art.8.

(2) Section 3(2) of the 1985 Act allowed the authorities broad discretion to intercept communications between the United Kingdom and an external receiver. There was no limit to the type of external communications that could be included in a warrant under s.3(2). In principle, any person who sent or received telecommunications outside the British Islands during the period in question could have had their communication intercepted under a s.3(2) warrant. The details of safeguards/arrangements under s.6 of the 1985 Act were not contained in legislation or otherwise made available to the public. The domestic law did not set out in a form accessible to the public the procedure for examining, sharing, storing, and destroying intercepted material. The interference with the applicant’s rights was not in in

accordance with the law. Accordingly, art.8 had been violated.

Citation

Peck v United Kingdom (44647/98) [2003] 1 WLUK 607

Topic

Disclosure of CCTV footage/photographs

Key Facts/Issues

The applicant was captured on CCTV with a knife and attempting suicide. The police stopped him from causing himself fatal harm. The CCTV footage was subsequently released to the press to demonstrate the effectiveness of CCTV. The applicant complained that his right to private life under Article 8 ECHR had been breached by the disclosure of the CCTV footage by the local authority. He also complained a breach of Article 13 ECHR which requires the right to an effective remedy.

Findings/Relevant Judicial Reasonings

Held

Upholding the complaint

No relevant or reasons which justified the local authority's disclosure. The local authority should have sought the applicant’s consent, masked his identity, or ensured that the media had masked their identity.

There were not sufficient safeguards in place to prevent the applicant’s identity. The disclosure had been a disproportionate and unjustified interference with P's private life and accordingly infringed his Art.8 right.

There had been a violation of P's right under Art.13 as the applicant was not provided with an effective remedy for the breach of his Art.8 right.

Citation

Perry v United Kingdom (63707/00) [2003] 7 WLUK 485

Topic

Covert videotaping by police/code of practice pursuant to PACE 1984

Key Facts/Issues

The police installed a covert listening device at a flat after receiving information about an armed robbery and, although that robbery was abandoned. Listening devices were also used at the police station to compare the applicants’ voices with those recorded at the flat. The applicants’ complained that the use of the surveillance devices had infringed the right to respect for private life under and the right to an effective remedy. The case also involved the failure to disclose part of a report, and the use at trial of taped evidence procured by means of covert surveillance, had violated the right to a fair trial.

Findings/Relevant Judicial Reasonings

Held, allowing the application in part

(1) the utilisation by the police of the covert listening devices in the flat and in the police, station had breached Art.8(2) of the Convention.

(2) Obtaining information regarding the use of a telephone during the investigation of a conspiracy to commit armed robbery was justified under Art.8(2).

(3) The domestic courts were not able to provide an effective remedy pursuant to Art.13; the complaints investigation procedures did not meet the requisite levels of independence to provide protection against the abuse of authority, and thus the right to an effective remedy had been infringed.

(4) Article 6 had not been breached in respect of the non-disclosure as sufficient safeguards had been taken to protect the applicants' interests

(5) there was no unfairness in leaving the taped evidence to the jury as a thorough summing up had been provided.

(6) The method by which the voice samples had been obtained had not infringed the applicants’ right not to incriminate themselves; voice samples that did not include incriminating evidence were akin to physical samples, such as hair, to which the right did not apply.

Citation

RE v United Kingdom (62498/11) [2015] 10 WLUK 707

Topic

Covert surveillance/code of practice

Key Facts/Issues

The regime for the covert surveillance of consultations between detainees and their lawyers and appropriate adults, set out in the Regulation of Investigatory Powers Act 2000 and the revised Covert Surveillance Code of Practice (the Revised Code), was in breach of ECHR art.8

Findings/Relevant Judicial Reasonings

Held

Complaint upheld in part.

The main issue was whether the regime was "in accordance with the law" under art.8(2). The requirement that any interference had to be "in accordance with the law" would only be met when three conditions were satisfied. It was not in dispute that the surveillance regime had a basis in domestic law, namely the 2000 Act and the Revised Code of Practice. Moreover, both were public documents. Accordingly, the relevant domestic law was adequately accessible for the purposes of art.8. In the special context of secret surveillance measures, the instant court had previously found that "foreseeability" required that domestic law be sufficiently clear to give citizens an adequate indication as to the circumstances in which and the conditions on which public authorities were empowered to resort to any such measures. As to the covert surveillance of lawyer/client consultations, the instant court was not satisfied that the provisions in Pt II of the 2000 Act and the Revised Code concerning the examination, use and storage of the material obtained, the precautions to be taken when communicating the material to other parties and the circumstances in which recordings might or had to be erased or the material destroyed provided sufficient safeguards for the protection of the material obtained by covert surveillance. To that extent, during the relevant period of the applicant's detention in May 2010, the impugned surveillance measures, insofar as they might have been applied to him, did not meet the requirements of art.8(2). There had therefore been a breach of art.8. The position in relation to the covert surveillance of consultations between detainees and their appropriate adults was different: the relevant provisions were accompanied by adequate safeguards against abuse and were not therefore in breach of art.8 (see paras 119-122, 141-143, 167-168 of judgment).

Citation

S v United Kingdom (30562/04); Marper v United Kingdom (30566/04) [2008] 12 WLUK 117

Topic

Retention of DNA/fingerprints

Key Facts/Issues

The applicants complained that the retention by the authorities of their fingerprints/ cellular samples/DNA profiles after criminal proceedings against them had resulted in acquittal or been discontinued violated their rights under the article 8 of the ECHR.

Findings/Relevant Judicial Reasonings

Cellular samples contain personal information, which means that their retention must be seen as interfering in one’s private life.

DNA profiles can identify relationships between individuals, which can therefore interfere with the right to private lives of individuals of others.

The retention of cellular samples and DNA profiles, therefore, leads to an interference with the applicants' right to respect for their private lives, within the meaning of Article 8 of the Convention.

The retention of fingerprints also constitutes an interference with the right to respect for private life.

Other countries have chosen to set limits on the retention and use of such data with a view to achieving a proper balance with the interests of respecting individuals’ private lives.

The court finds that there is a blanket and indiscriminate nature of the power of retention in England and Wales.

The retention of unconvicted people’s data may be especially harmful in the case of minors, given their situation and the importance of their development and integration in society.

Citation

Recklos v Greece (1234/05) [2009] 1 WLUK 145

Topic

Photograph/Consent

Key Facts/Issues

The applicants complained that that the taking of a photograph of their baby in hospital breached their rights under art.8 of the Convention.

Findings/Relevant Judicial Reasonings

Held

Complaints upheld.

(2) The right to protection of one's image was an essential part of personal development and presupposed the right to control the use of that image. This issue included the right to object to the reproduction of the image. Also, effective protection of an image presupposed obtaining the consent of the person at the time the picture was taken. The photographer did not have consent to take pictures of the baby, and consent was indispensable to establish the context in which the picture was to be used. There had been a violation of art.8.

Citation

Szabo v Hungary (37138/14) [2016] WLUK 80

Topic

Covert surveillance

Key Facts/Issues

In potential breach of Article 8, the applicants complained that they could potentially be subjected to unjustified and disproportionately intrusive measures within the Hungarian legal framework on secret surveillance for national security purposes. They allege that the legal framework was prone to abuse, notably for want of judicial control. They also complained that their exposure to secret surveillance without judicial control or remedy breached their rights under Article 6 and Article 13.

Findings/Relevant Judicial Reasonings

Held

Complaint upheld.

(1) Even though the applicants had not been subjected to surveillance, they could claim to be victims of a violation of their art.8 rights by virtue of the mere existence of the legislation. (see paras 38-39 of judgment).

(2) The legislation did not provide safeguards which were sufficiently precise, effective, and comprehensive on the ordering, execution, and potential redressing of surveillance measures. The scope of the measures could include virtually anyone. There was also a lack of judicial control. Judicial control offered the best guarantees of independence, impartiality, and a proper procedure.

There was an absence of effective remedial measures for those who were subject to surveillance measures. In the circumstances, the legislation was in breach of art.8 (paras 75, 77, 89).

Citation

Tele2 Sverige AB v Post- och telestyrelsen (C-203/15) C:2016:970

Topic

Data protection/retention of data

Key Facts/Issues

Members States may not impose a general obligation to retain data on providers of electronic communications services. Only targeted retention of that data may be allowed for the purpose of fighting serious crime.

Findings/Relevant Judicial Reasonings

N/A