A bulwark against the secret state

Mistakes by the security and law enforcement agencies can have ‘truly terrible’ results, the Investigatory Powers Commissioner tells me. ‘Completely innocent people have to live with consequences for which there can be no proper rectification. Children may be taken into care. People have lost their jobs. Some have lost their homes.’ 

Sir Adrian Fulford (pictured), the appeal judge who monitors – and, in some cases, endorses – the use of covert powers, was responding to questions about his latest annual report, published at the end of last month. Of 926 errors recorded during 2017, the number assessed as ‘serious’ was 24. But only eight people had been notified. Writing on the UK Human Rights Blog, Dr Lawrence McNamara, a senior research fellow at the Bingham Centre, wanted to know why the other 16 victims of serious errors were never told. 

The 24 errors are summarised, anonymously, in the commissioner’s annual report. Or that, at least, was the plan: one of the errors was omitted, in error, while another was printed twice – a mistake by the typesetters that will be corrected online. It turns out that five innocent people were arrested by the police in 2017 and questioned about offences such as sexualised contact with children online and sharing indecent images of minors. A sixth was questioned in connection with a suspected homicide. In other cases, search warrants were executed at innocent people’s homes and computers seized. Many of these errors were caused by investigators mistyping computer IP addresses: a single misplaced digit can lead to the wrong person being identified. Corroboration was not sought. In one case, there were crossed wires in a street cabinet. 

Fulford wrote to eight people who were wrongly arrested or whose homes were wrongly searched to tell them they could complain to the Investigatory Powers Tribunal. It was decided that the remaining 16 had not been ‘adversely affected’ under the code of practice then in use: the new test will be whether they were ‘caused significant prejudice or harm’. If that requirement is not met, the commissioner cannot notify the victim. But how can the tribunal decide whether an error has been correctly categorised unless a victim is told about it and given an opportunity to complain?

We don’t know how many of those wrongly arrested or searched have lodged complaints. What we do know is that the tribunal, now headed by Lord Justice Singh, is a force to be reckoned with. This month it decided that the undeclared use of police body-worn cameras in a person’s home could amount to surveillance. Soon it will have to decide what protection members of the security and law enforcement agencies have against criminal and civil liability when they let undercover agents – ‘covert human intelligence sources’ – commit crimes to maintain their cover. 

Last year, the tribunal ordered British Transport Police to pay damages of nearly £47,000 to a former detective who had come under unlawful surveillance. This was not ‘intrusive surveillance’ – which is covert surveillance of residential premises or private vehicles. It was directed surveillance, which covers something as simple as following suspects on foot or in a vehicle, setting up cameras to record their movements, or covertly monitoring their social media activity. You might think that’s such a routine part of a detective’s work that it doesn’t need authorisation.

You would be wrong. Local authorities need permission from a magistrate. The police need permission from a senior officer. In most cases, says Fulford, investigators willingly comply with these requirements. But not in the case of Gary Davies, a retired police chief superintendent with an exemplary record who was cleared by a jury in 2017 of sexually assaulting three women on a crowded commuter train. 

Following a complaint, officers from British Transport Police arranged to follow and photograph Davies on a subsequent journey. They then arrested him and released his home address to the media. The police force accepted that their surveillance should have been authorised but claimed that a detective’s failure to obtain permission was merely a ‘technical breach’: a superintendent would have granted it if asked. Tribunal members were ‘astonished’ to hear this, given that the legal requirements were not even close to being met: for one thing, the detective doubted the complainant’s credibility. 

It was Singh, sitting with Mr Justice Holgate in the High Court last year, who confirmed that unregulated retention of communications data by telecommunications operators was inconsistent with EU law. And it is Fulford who has just recruited more than 50 officials to decide when some 600 public authorities with investigatory powers should have access to this data – the ‘who’, ‘where’ and ‘when’ of a message, but not what it says. Though the two appeal judges are entirely independent of each other, they are proving to be a formidable bulwark against the encroaching secret state.

joshua@rozenberg.net