Terrence williams the eyes have it

“The Eyes have it: Street Cameras, Drones and Police Bodycams – Towards Open Justice?”

Terrence F. Williams

“The Eyes have it: Street Cameras, Drones and Police Bodycams – Towards Open Justice?”

Introduction Video surveillance and the use of video recordings play an increasingly important role in law enforcement and criminal prosecutions. The merits are obvious: Video monitoring can broaden the detection of possible breaches of the peace and provide real evidence if a case is to be taken to court.

Despite these advantages, we are all concerned about living in an Orwellian dystopia where we are always subject to the watching eye of the state. This paper will address two questions: First, how may a balance be struck between our rights to personal security, on the one hand, and to privacy, on the other hand? Secondly, are the legal arrangements in Jamaica sufficiently robust to protect inhabitants against arbitrary and disproportionate intrusions into their private affairs?

To better illustrate the paper will consider two hypotheticals. In both the police employ drones to conduct surveillance in the city’s vice district. The aim is to detect drug deals and prostitution and to prosecute offenders. By the use of the drones the monitoring is done secretly, without warrant, and, of course, the public was not notified.

On one particular night Roy, a returning resident, is driving through the area merely seeking to find an address in the nearby residential community. He speaks to a young lady and, although wondering why she is so scantily clad, accepts her directions and proceeds. Two months later, the police decide to do a preventative advertising campaign called: “Our eyes are on you” with the video of Roy conversing with the underdressed lady prominently featured on local television. Roy is quite embarrassed and wonders what to do.

Another drone had been fitted with cameras and state of the art microphones that enabled its users to hear even whispered conversations from great distances. The drone peered into Ken’s beachside squatter shack and eavesdropped on Ken’s hushed conversation with Jean Luc for the latter to provide, before dawn, guns in return for a quantity of cocaine. The police were on spot for the transaction, guns were fired and Jean Luc was killed. Ken’s wife Petal recorded the events on her smartphone but, on the order of Sgt. Nice, deleted it. Ken is charged and the recording from the drone is proposed to be used in evidence against him without full explanation as to how it was taken. A transcript is made of the conversation with the voices attributed by the transcriber’s viewing of the tape.

Did the police act properly in eavesdropping on Ken and Jean Luc? Should they disclose how they made the tape? Was Sgt. Nice correct in ordering Petal to delete the recording?

Duty of the state Under the Constitution our human rights are protected by the state’s obligation to promote universal respect for, and observance of, human rights and freedoms, as well as the obligation of all persons to

respect and uphold the human rights of others. The state must ensure that there are laws and systems to circumscribe, forbid, detect and punish breaches of these rights1.

One of these rights is to life and security of the person. The state must take reasonable steps to protect persons so that their life and bodily integrity may be secured. In short, the state must endeavor to control crime.

Human rights are deserving of protection so long as they do not infringe the rights of others2. Further, these rights are however not absolute and permit abrogation, abridgement and infringement in accordance with laws that are “demonstrably justified in a free and democratic society”3.

Another of these fundamental rights is often called “the right to privacy” and is, along with its exceptions, described thusly in the Constitution: “13 (2) Subject to sections 18 and 49, and to subsections (9) and (12) of this section, and save only as may be demonstrably justified in a free and democratic society (a) this Chapter guarantees the rights and freedoms set out in subsections (3) and (6) of this section and in sections 14, 15, 16 and 17; and (b) Parliament shall pass no law and no organ of the State shall take any action which abrogates, abridges or infringes those rights.

(3) The rights and freedoms referred to in subsection (2) are as follows… (j) the right of everyone toi. protection of search of the person and property; ii. respect for and protection of private and family life, and privacy of the home; iii. protection of privacy of other property and of communication;” (Emphasis mine)

This is how the right to privacy is described in the European Convention of Human Rights: Article 8 – Right to respect for private and family life 1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

1

R (on the application of Middleton) v West Somerset Coroner [2004] UKHL 10 at [2], [2004] 2 AC 182 at [2] S. 13(1) 3 S. 13 (2) 2

There is some difference in the expression of the exceptions under our Constitution when compared to the European Convention, in that the European Convention qualifies that infringements necessary in a democratic society must be in accordance with law, whilst the Constitution does not. The Canadian Charter provides that rights are “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”. It is submitted that the distinction is unimportant to the discourse as the state has an obligation to establish a proper legal framework to regulate, prohibit and prevent breaches of rights4 a democratic society would not operate otherwise.

The common lawyer is well familiar with the interaction of the right to privacy and its exceptions in terms of the protections against warrantless search of the home. In the ancient case of Entick v Carrington [1765]5 Lord Camden, CJ ruled that entry on private property without the owner’s permission must be justified by statute or common law. It was understood, long before the Constitution was written, that such infringements may be necessary for the proper functioning of a democratic society6.

Someone entering private property is required to prove the lawfulness of their actions7. Where entering to execute an arrest warrant the arrestor must have reasonable grounds to suspect that the fugitive is on the premises8. It is also well established that a police officer with an arrest warrant may break and enter premises after having demanded admittance and giving due notice of the warrant9.

Similarly, in Milton Millingen v The Attorney-General (1989) 26 JLR 170 (JMCA), the Court of Appeal, followed established precedent, and ruled that a constable was authorized at common law to enter private property without a warrant where a breach of peace is anticipated. In Swales v Cox10 the English court laid out the four circumstances that warrantless entry might be permissible each of which describe an imminent and clear need for the police to act to preserve order.

To provide protection from arbitrary search and entry, statute and common law have developed a framework of laws and principles to guide state agents. Cameras provide a new means by which the privacy may be breached. Technology has afforded greater stealth so much so that surveillance may be conducted without alerting the subject. Further, the video recording may be a vivid, permanent and easily transferrable image of our private spaces and activities. Most importantly, the technology is relatively new when compared to the centuries of the traditional home search. Given the common law’s dependence on judge-made (or judge-developed) law it may well mean that law enforcement can operate, or are operating, in a “grey period” without proper regulation of the infringement of our rights.

In Jamaica the situation is particularly concerning given that agents of the state have not always shown due regard for the need for home searches ordinarily to be by warrant or for “stop and search” to be based on reasonable suspicion11. Given this track record, it is understandable that there might be some

4 5

6

See note 1 above 9 State Trials 1029

Attorney-General v Williams (Danhai) and Another - (1997) 51 WIR 264 Entick v Carrington [1765] 19 State Trials 1029 8 Kynaston v DPP (1988) 87 Cr App R 200 9 Foster’s Crown Cases , East Pleas of the Crown 1, 324, Burdett v Abbott (1811) 10 East 1 10 [1981] 1 AllER 1115 11 See for example: Random searches will continue says Ellington , Jamaica Observer July 1, 2013 7

apprehension as to how Jamaica’s security forces will comport themselves (or are comporting themselves) in the new unregulated frontier of intrusion into our lives brought by new technology.

“Private Life” The paper has so far avoided defining “privacy” or “private life”. Perhaps the terms are amorphous but some activities clearly fall within its margins. The right to privacy is broadly cast as it has been held that “private and family life” includes privacy of relationships, reputation12, image13, business affairs, and legal advice14.

The common law does not recognize a specific right to privacy and there is no actionable tort of infringement of privacy1. However, the right to privacy has been accepted to be a broad notion which encompasses a variety of more specific rights protected by the common law or by statute, including the right to be left alone2, the right to communicate privately3, the right not to have personal information published without lawful authority4, and rights of access and control over the use of personal information5. “Private life” includes the ability of a person to establish and develop relationships with others. That is, to our ability to function socially15.

Given how broadly the right is cast, the courts have to ensure that the area of infringement is sufficiently serious to engage concern. In today’s modern world individuals are accustomed to their visage being routinely captured by CCTV or, if you are famous, by the paparazzi. These ordinary encounters do not infringe what is known as “the reasonable expectation of privacy”. Petal’s recording of the police actions during the raid, so long as she did not obstruct them, was therefore unobjectionable. In Duclos v Aubry, CBC intervening16the Quebec Court of Appeal ruled that although right to an image is a feature of the right to privacy, said right was not breached merely by the taking of the picture but, could be, by its publication without permission.

Where there is a reasonable expectation of privacy the constitutional right is involved and the next issue is to find the balance with other rights particularly the state’s general obligation to secure the nation’s inhabitants and the right to freedom of expression. In Murray v Big Pictures (UK) Ltd17 Sir Anthony Clarke MR stated: “[36] As we see it, the question whether there is a reasonable expectation of privacy is a broad one, which takes account of all the circumstances of the case. They include the attributes of the claimant, the nature of the activity in which the claimant was engaged, the place at which it was happening, the nature and purpose of the intrusion, the absence of consent and whether it was known or could be

12

Bensaid v United Kingdom (2001) 33 EHRR 205 at [47] Von Hannover v Germany (2004) 43 EHRR 139 14 Varec SA v Belgium [2008] ECR 1-581 [48] 15 Ibid paragraph 321 16 1998 1 RCS 591 17 [2008] 3 FCR 661, [2008] 3 WLR 1360 13

inferred, the effect on the claimant and the circumstances in which and the purposes for which the information came into the hands of the publisher.'

An important case on this issue is the European Court of Human Rights’ (ECHR) decision in Peck v United Kingdom18. P, a man suffering from severe depression, was captured by CCTV walking on a public street with a large knife. He would later attempt suicide, but this part of the event was not recorded. The local police was notified and they arrested P. Later images were released for public broadcast without pixilating P’s face and these images were in fact so published in a newspaper and on television. The aim was to herald the efficacy of the system. P’s consent was not sought.

Two media commissions agreed that P’s privacy was invaded but the High Court refused, on a judicial review application, to grant any remedy against the public authority saying that the authority had not acted irrationally.

The ECHR held, on the privacy issue, that the question was whether the images were depicting an event of a private or public matter. Although P was in a public place, he was not participating in a public event neither was he a public figure. As the images were envisaged for limited or general release, the disclosure interfered with his private life as it far exceeded any kind of exposure that P could have reasonably foreseen.

Similarly, in R (on the application of Wood) v Metropolitan Police Commissioner19, the police took and retained pictures of a man on the public road on the way to a meeting of a limited company where he was expected to join a protest. The man was a member of a group that organized protests against the company but he had no convictions and had never been arrested.

The court held that there was an expectation of privacy. Laws, J ruled: [22] This cluster of values, summarised as the personal autonomy of every individual and taking concrete form as a presumption against interference with the individual's liberty, is a defining characteristic of a free society. We therefore need to preserve it even in little cases. At the same time it is important that this core right protected by art 8, however protean, should not be read so widely that its claims become unreal and unreasonable. For this purpose I think there are three safeguards, or qualifications. First, the alleged threat or assault to the individual's personal autonomy must (if art 8 is to be engaged) attain 'a certain level of seriousness'. Secondly, the touchstone for art 8(1)'s engagement is whether the claimant enjoys on the facts a 'reasonable expectation of privacy' (in any of the senses of privacy accepted in the cases). Absent such an expectation, there is no relevant interference with personal autonomy. Thirdly, the breadth of art 8(1) may in many instances be greatly curtailed by the scope of the justifications available to the state pursuant to art 8(2).

Another is the controversial Campbell v MGN Ltd20.The claimant was a famous and glamorous model of Jamaican extraction. She courted media attention and publicized her supposed abstinence from 18

(App no 44647/98) - [2003] ECHR 44647/98 [2009] 4 All ER 951 20 [2004] 2 AC 457, [2004] UKHL 22 19

narcotics. The defendant’s newspaper reported that she was in fact a user of illicit drugs and published pictures of her, covertly taken, on the street leaving a meeting of group therapy to help fight narcotics addiction. The claimant brought the claim of breach of confidence as regards the photographs. The defendant claimed that the articles were important to correct the false image painted by the claimant and that reference to her treatment was peripheral to the reportage. The claimant was successful at first instance; the defendant on appeal.

The House of Lords by a bare majority, allowed the appeal, the majority opining that an expectation of privacy would arise where a reasonable person, of ordinary sensibilities, placed In the same situation as the claimant would find the disclosure offensive. Since the disclosure related to physical and mental health they were private and confidential analogous to medical records. This kind of treatment required anonymity, privacy and confidentiality.

Lord Hoffman explained the concept of “private life” and what kind of intrusions were so serious as to involve the right to privacy: 51. --"the right to control the dissemination of information about one's private life and the right to the esteem and respect of other people …

73…In the present case, the pictures were taken without Miss Campbell's consent. That in my opinion is not enough to amount to a wrongful invasion of privacy. The famous and even the not so famous who go out in public must accept that they may be photographed without their consent ...

[74] But the fact that we cannot avoid being photographed does not mean that anyone who takes or obtains such photographs can publish them to the world at large ...'

Lord Hope of Craighead added: 99…The mind that has to be examined is that, not of the reader in general, but of the person who is affected by the publicity. The question is what a reasonable person of ordinary sensibilities would feel if she was placed in the same position as the claimant and faced with the same publicity.

Campbell shows the difficulties that arise at the extremes of the concept of the expectation of privacy.

She had courted publicity and had been mendacious regarding her drug use. Although eventually successful, Campbell claim was favoured by only 4 of the 9 judges who heard it!

Some North American cases may further demonstrate. From Canada there is R v Patrick21, a decision of their highest court. Police took evidence from garbage bags that P had left out for collection. The evidence included chemical recipes and items which bore traces of ecstasy. P was a suspected drug dealer and the police needed to violate P’s airspace to retrieve the garbage. The court held, that he had abandoned his right to privacy to the particular contents of the garbage. The concept of privacy, the court opined, was based on value judgments “which are made from the independent perspective of the 21

[2009] 1 SCR 579

reasonable and informed person who is concerned about the long-term consequences of government action for the protection of privacy”22. The court was carefully to note that there may be items discarded in garbage which have a high expectation of privacy23. Perhaps the decision would have been different if his medical or banking information had been retrieved from the dustbin.

R. v. Gomboc24, is also a decision of Canada’s highest court. Without a warrant but with the cooperation of the power company, a special technological instrument called DRA was attached to the electricity main to G’s premises to measure electricity use patterns to detect suspicion of marijuana cultivation.

The flow was consistent with marijuana growing and on the basis of the information a warrant was sought. A large quantity of marijuana was recovered at B’s premises. The DRA evidence was admitted and G was found guilty.

On initial appeal, a retrial was ordered on the basis that there had been an expectation of privacy that was infringed.

At the Supreme Court the majority reversed the Court of Appeal and held that the DRA revealed no information, which when viewed objectively involved an expectation of privacy. The expectation of privacy involved biographical core data, revealing intimate and private information for which individuals rightly expect constitutional privacy protection. The appropriate question is whether the information is the sort that society accepts should remain out of the state’s hands because of what it reveals about the person involved, the reasons why it was collected, and the circumstances in which it was intended to be used. In this case the consumption records were not confidentially held by the power company.

Deschamps, J, explained the proper approach to the issue: [17] This Court’s foundational decision in Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145, established that s. 8 of the Charter protects a right to privacy. Principles delineating the right to privacy laid down in Hunter apply with equal force today. Section 8 of the Charter protects “people, not places” (p. 159). Like all Charter rights, the s. 8 right to privacy is not absolute — instead, the Charter protects a reasonable expectation of privacy. Dickson J. (as he then was) framed determination of a reasonable expectation of privacy in the following terms: The guarantee of security from unreasonable search and seizure only protects a reasonable expectation.

This limitation on the right guaranteed by s. 8, whether it is expressed negatively as freedom from “unreasonable” search and seizure, or positively as an entitlement to a “reasonable” expectation of privacy, indicates that an assessment must be made as to whether in a particular situation the public’s interest in being left alone by government must give way to the government’s interest in intruding on the individual’s privacy in order to advance its goals, notably those of law enforcement. [Emphasis in original; pp. 159-60.]

[18] In R. v. Edwards, 1996 CanLII 255 (SCC), [1996] 1 S.C.R. 128, a majority of this Court held that a “reasonable expectation of privacy is to be determined on the basis of the totality of the 22

[14] [30] 24 [2010] 3 SCR 211, 2010 SCC 55 23

circumstances” (para. 45). In subsequent cases, the reasonable expectation of privacy analysis proceeded in two steps, asking whether the accused had a subjective expectation of privacy and whether that expectation of privacy was objectively reasonable (R. v. Tessling, 2004 SCC 67 (CanLII), [2004] 3 S.C.R. 432, at para. 19; R. v. Kang-Brown, 2008 SCC 18 (CanLII), [2008] 1 S.C.R. 456; and R. v. Patrick, 2009 SCC 17 (CanLII), [2009] 1 S.C.R. 579).

[19] In Tessling, Binnie J. wrote that because privacy is a varied and wide-ranging concept, the s. 8 jurisprudence has evolved to recognize a number of privacy interests, namely: (i) personal privacy, involving bodily integrity and the right not to have our bodies touched or explored; (ii) territorial privacy, involving varying expectations of privacy in the places we occupy, with privacy in the home attracting heightened protection because of the intimate and private activities taking place there; (iii) informational privacy, involving “the claim of individuals, groups, or institutions to determine for themselves when, how, and to what extent information about them is communicated to others” (para. 23, quoting A. F. Westin, Privacy and Freedom (1970), at p. 7).

Tessling also recognized that these categories, though analytically useful, do not necessarily exist in isolation and may overlap.

[20] If, in the first instance, a reasonable expectation of privacy is determined to exist, a search intruding upon that interest will engage s. 8 of the Charter. Because the Charter protects only against unreasonable searches, the next step after a reasonable expectation of privacy has been established is to inquire whether the search is reasonable. A search involving a Charter-protected privacy interest will be reasonable if the police are authorized by law to conduct the search, if the law authorizing the search is reasonable, and if the search is conducted in a reasonable manner (R. v.

Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265, at p. 278). In most cases, this requires obtention of a search warrant requiring police to satisfy a judicial authority that there are reasonable and probable grounds to believe that a search will reveal evidence of an offence (see, e.g., Criminal Code, R.S.C. 1985, c. C-46, s. 487). In certain situations where only a lowered expectation of privacy is recognized, police must instead have a reasonable suspicion that a search will uncover evidence of an offence before they may undertake it (see, e.g., Kang-Brown). Where no reasonable expectation of privacy is established, no threshold justification is required because the search does not trigger Charter protection (see, e.g., Patrick). …

45] The case law has long recognized a heightened constitutional expectation of privacy in our dwellings (R. v. Evans, 1996 CanLII 248 (SCC),[1996] 1 S.C.R. 8; R. v. Silveira, 1995 CanLII 89 (SCC), [1995] 2 S.C.R. 297; R. v. Feeney, 1997 CanLII 342 (SCC), [1997] 2 S.C.R. 13; Tessling andPatrick).

Viewed purposively, the rationale behind the elevated expectation of privacy is that although s. 8 of the Charter protects “people, not places”, the home is where our most intimate and personal activities often take place (Tessling, at para. 22). In recognizing a heightened expectation of privacy in the home, the law thus employs “the notion of place as an analytical tool to evaluate the reasonableness of a person’s expectation of privacy” (para. 22 (emphasis in original)).

[46] As is true of all constitutional rights, the Charter’s protection of territorial privacy in the home is not absolute. The Constitution does not cloak the home in an impenetrable veil of privacy.

To expect such protection would not only be impractical; it would also be unreasonable.

[47] In discharging their duties, many legitimate avenues are open to police seeking information about activities taking place in the home. As in the present case, they are free to view the home while in the public areas surrounding it. They may take up a position in a publicly accessible location and note what or who is entering and leaving the home. They may ask neighbours about what they have observed taking place around the home. None of this information, though capable to varying degrees of supporting inferences about what is taking place in the home, attracts Charter protection. Indeed, in the case at bar, police had already exhausted these legitimate means to build a foundation for the belief that a marijuana grow operation was taking place in the home. I note that they had already spoken to neighbours, learning that the living pattern of the occupants was odd for the neighbourhood; the neighbours had noticed unusual condensation, steam emanating from the house (the house was “sweating”) and closed blinds on many windows, and while standing on an adjacent public footpath, Constable McCallum could be “absolutely certain” that it was marijuana she was smelling.

Kyllo v United States25, a decision of the United States Supreme Court stands in contrast. Police used thermal imaging to see whether there was excessive heat coming from defendant’s house as this could be indicative of marijuana cultivation. Having so found, a warrant was obtained. The issue was whether the thermal imaging was lawful.

The USSC did not agree with the 9th Circuit’s view that there was no reasonable expectation of privacy because the imaging did not reveal intimate details and held that where new technology permitted intrusion into the home that would hereto before only been possibly by a search, a warrant would be required. Otherwise homeowners would be at the mercy of advancing technology in the hands of the state.

Our hypothetical throws up another issue which we must consider. Does it matter that Ken was a squatter? Harrow London Borough Council v Qazi26 established that the concept of 'home' for the purposes of the right to privacy is not limited to premises which are lawfully occupied but it depends on the existence of sufficient and continuous links with the premises.

Does it matter that Ken and Jean Luc’s conversations were a criminal conspiracy? Did they attract an expectation of privacy?

Decisions of the Bahamas Court of Appeal, including Maycock v Attorney General of the Commonwealth of The Bahamas and another and other appeals27, applied the analogy of privilege in holding that there was no constitutional right to privacy for criminal conversations and in fact no

25

[2001] USSC 50; 533 U.S. 27 [2003] UKHL 43, [2004] 1 AC 983,[2003] 4 All ER 461 27 (2010) 76 WIR 10 26

reasonable expectation of privacy in wireless communications. The UKPC disagreed in Newbold v Commissioner of Police and other cases28: “ [11] The Board cannot agree with the Court of Appeal's approach. First, the technical possibility of intercepting a private conversation cannot mean that the parties are content that it should be intercepted. Were it otherwise, human communication would have to be reduced to surreptitious whispers by the side of a running bath to be private. As to the allegation, for at this stage it is no more, that the intercepted conversations related to or evidenced criminal activity, that reinforces the view that the parties wished them to be private. Those engaging in suspicious activity do not wish or expect to have their conversations intercepted, recorded or used against them. Hence, indeed, quite probably any use of coded language in the present cases. …

[26] The Board does not consider that the boundaries between privacy and freedom of expression can be so neatly drawn. 'The very efficacy of electronic surveillance is such that it has the potential, if left unregulated, to annihilate any expectation that our communications will remain private', as La Forest J said in R v Duarte [1990] 1 SCR 30 at 44. But by the same token, human enjoyment of and willingness to exercise our freedom of expression, by receiving and imparting ideas and information, will certainly be hindered and so interfered with if we are conscious that anything we write or say may be the subject of unregulated surveillance. The more difficult to detect that surveillance is at the time, the more inhibiting its effect. Accordingly, the Board considers that interception of telephone conversations falls within the concept of 'interference with correspondence' within art 23 and its predecessors.”

Recently, Lords Toulson and Hodge in the UKSC opined that a person engaged in a public riot has no expectation of privacy and that the police could publish his photograph taken from that event to aid in his apprehension29. It is respectfully submitted that the point is better resolved by finding that the intrusion was clearly proportional and for a legitimate aim, as explained in the next section.

Summing up, the recording of images of persons as they are about in public raises no expectation of privacy. Retaining and publishing these images, as in Roy’s case, are likely to engage an expectation of privacy. Where surveillance intrudes into the home the expectation of privacy is immediately engaged.

As in Ken’s case it does not matter that he was a squatter or that his conversation was unlawful.

28 29

(2014) 84 WIR 8 Re JR38's Application for Judicial Review (Northern Ireland) - [2015] 4 All ER 90

“Demonstrably justified in a free and democratic society” For an interference with human rights to be justifiable it must satisfy the captioned criteria, that is, the infringement must have a legitimate aim, a "pressing social need”, and that the degree of infringement must have been proportionate to the legitimate aim pursued30.

The factual context of this paper will give rise to the legitimate aims of controlling, detecting and prosecuting crime but the exception is not satisfied merely by good intentions. There must be a reasonable relationship of proportionality between the means employed and the aim sought. This means that there must be a rational connection between objective and the means, a fair balance between demands and interest of the community and the protection of an individual’s rights, and relevant or sufficient reasons for restriction or interference. It would be absurd to control crime by bugging the homes of all citizens.

Lord Clyde speaking for the Board in the UKPC in de Freitas v Permanent Secretary of the Ministry of Agriculture, Fisheries, Lands and Housing and Others31 pronounced that the opposite of an infringement which is “demonstrably justified in a free and democratic society” is one which is arbitrary and excessive.

“Their lordships were referred to three cases in which that phrase has been considered. In Government of the Republic of South Africa v The Sunday Times Newspaper [1995] 1 LRC 168 Joffe J adopted from Canadian jurisprudence four criteria to be satisfied for a law to satisfy the provision in the Canadian Charter of Rights and Freedoms that it be 'demonstrably justified in a free and democratic society'. These were a sufficiently important objective for the restriction, a rational connection with the objective, the use of the least drastic means, and no disproportionately severe effect on those to whom the restriction applies. In two cases from Zimbabwe, Nyambirai v National Social Security Authority [1996] 1 LRC 64 and Retrofit (Pvt) Ltd v Posts and Telecommunications Corporation [1996] 4 LRC 489, a corresponding analysis was formulated by Gubbay CJ, drawing both on South African and on Canadian jurisprudence, and amalgamating the third and fourth of the criteria. In the former of the two cases (at page 75) he saw the quality of reasonableness in the expression 'reasonably justifiable in a democratic society' as depending upon the question whether the provision which is under challenge – 'arbitrarily or excessively invades the enjoyment of the guaranteed right according to the standards of a society that has a proper respect for the rights and freedoms of the individual.'

In determining whether a limitation is arbitrary or excessive he said that the court would ask itself 'whether: (i) the legislative objective is sufficiently important to justify limiting a fundamental right; (ii) the measures designed to meet the legislative objective are rationally connected to it; and (iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective.'

30

S v UK (2008) 25 BHRC 557, [101]; Handyside v UK 24(1976) 1 EHRR 737; Barthold v Germany (1985) 7 EHRR 383 [55] 31

(1998) 53 WIR 131

In Peck, the ECHR concluded that the distribution of the images were not “necessary in a democratic society”. The court noted that P had not been charged, much less convicted of a crime but that the interference with his privacy had been severe. Although detecting and preventing crime was a “strong interest” of the state and the advertising of the effectiveness of the CCTV would enhance its effectiveness, the release of the image without pixilating P‘s face was not proportionate as: “…the Council had other options available to it to allow it to achieve the same objectives. In the first place, it could have identified the applicant through enquiries with the police and thereby obtained his consent prior to disclosure. Alternatively, the Council could have masked the relevant images itself. A further alternative would have been to take the utmost care in ensuring that the media, to which the disclosure was made, masked those images. The Court notes that the Council did not explore the first and second options and considers that the steps taken by the Council in respect of the third were inadequate.32”

Their lordships in R (on the application of Wood) v Metropolitan Police Commissioner33 weighed the legitimate aim of the surveillance but felt that given the importance of the right and the extent of the interference, it was not proportionate to retain the photographs after it was clear that there was no disorder. But in R (on the application of S) v Chief Constable of South Yorkshire; R (on the application of Marper) v Chief Constable of South Yorkshire34 the House of Lords ruled that the policy to retain, save in exceptional cases, all fingerprints and DNA samples taken from those who had been acquitted of criminal offences or against whom proceedings had not been pursued was lawful as the aim of the policy was directed to the prevention or detection of crime, the investigation of offences, the facilitation of prosecutions and the speedy exculpation of the innocent as well as the correction of miscarriages of justice. Similarly, in R (on the application of Catt) v Association of Chief Police Officers and another; R (on the application of T) v Metropolitan Police Commissioner35, the UKSC considered the rules and practice surrounding the keeping of photographic and other data of C’s involvement in a number of protests in a police database. C was 91 years old and had never been convicted of any criminal conduct related to these protests. Some of these protests involved violence. He sought judicial review. T objected to the retention of a minor complaint made by a neighbor in the police database. Although the right to privacy was engaged, the UKSC reasoned that the legal and regulatory framework provided sufficient protections to make the infringement proportionate. They took into account that: a. Although the collation of the information in the form in which it appeared in police records was not publicly available, the events recorded were and always had been in the public domain. b. The material was not usable or disclosable for any purpose other than police purposes, other than as a result of an access request by the subject. c. The material was periodically reviewed for retention or deletion according to rational and proportionate criteria based on an assessment of danger to the public and value for policing purposes.

32

[80] [2009] 4 All ER 951 34 [2004] UKHL 39 33

35

[2015] UKSC 9

d. The purposes for which the evidence was retained were for a legitimate policing aim.

Campbell proved a difficult case in this regard. Unlike Peck and Wood there was no crime prevention aim but there was the virtue of the freedom of the press. In considering how to balance the competing rights the majority in the House of Lords decided that this kind of publication required special justification and in the case, publication went beyond what was necessary. The right to privacy, in these circumstances, outweighed the right to a free press. Lord Hope set out the approach: “113 But decisions about the publication of material that is private to the individual raise issues that are not simply about presentation and editing. Any interference with the public interest in disclosure has to be balanced against the interference with the right of the individual to respect for their private life. The decisions that are then taken are open to review by the court. The tests which the court must apply are the familiar ones. They are whether publication of the material pursues a legitimate aim and whether the benefits that will be achieved by its publication are proportionate to the harm that may be done by the interference with the right to privacy. The jurisprudence of the European Court of Human Rights explains how these principles are to be understood and applied in the context of the facts of each case.

Any restriction of the right to freedom of expression must be subjected to very close scrutiny. But so too must any restriction of the right to respect for private life. Neither article 8 nor article 10 has any preeminence over the other in the conduct of this exercise. As Resolution 1165 of the Parliamentary Assembly of the Council of Europe (1998), para 11, pointed out, they are neither absolute not in any hierarchical order, since they are of equal value in a democratic society.”

To return to our hypotheticals, the publication of Roy’s interaction was disproportionate with the legitimate aim of advertising that persons in the vice district were subject to scrutiny. The surveillance of Ken’s cabin is not so clear cut. The aim was legitimate and Ken suffered no embarrassment apart from his criminal conspiracy being exposed. But the surveillance was done absent any regulatory framework for its propriety to be monitored.

“In accordance with law” As noted earlier, this element does not specifically appear in the Constitution but it is contended that the state must regulate possible infringements of rights to protect inhabitants from arbitrary actions. It is important to set out the principles under which rights might be restricted. Such rules must be accessible to the public so that they may, perhaps with legal advice, regulate their conduct36. The rules must be accessible, enforceable and foreseeable to the general public37 but need not release details of covert methods. The law must not be too wide so as to be arbitrary and open to abuse. Rules should be promulgated that support and follow the statutory framework.

In the United Kingdom covert investigations methods are regulated by the Regulation of Investigative Powers Act, 2000 (RIPA). Previously, their legislative arrangements were piecemeal: the Interceptions of Communication Act (1985) for telephones; the Security Service Acts of 1989 and 1996 for bugging of 36

Purdy v DPP [2009] UKHL 45;[2010] UKHL 345 Huvig v France (1990) 12 EHRR 528/ Hewitt and Harman v UK (1992) 14 EHRR 657, R v Khan [1997] AC 558, Khan v UK (2001) 31 EHRR 1016, Kennedy v UK (2011) 52 EHRR 4 37

premises, and Part III of the Police Act (1997) for entry onto property or wireless telegraphy. Before RIPA, the regime was much criticized in Strasbourg. In Malone v UK38the court disparaged the absence of clear statutory rules for the Secretary of State’s granting a warrant to intercept telephone communication. The citizenry were denied the minimum degree of legal certainty. In response the Parliament passed the Interception of Communications Act to control interception of telephony.

Bugging of premises was first regulated by the Security Services Act of 1989. Hewitt and Harman v UK39, like Malone, held that given the absence of a statutorily regulated arrangement, the right to privacy was breached.

In R v Khan40one ground of appeal argued that evidence of incriminating conversations was obtained by bugging devices placed at the appellant’s residence in what would have amounted to trespass. Whilst dismissing the appeal the court thought that statutory control analogous to that for intercepting telephone conversations ought to have been enacted. The court noted that although the adage: “An Englishman’s home is his castle” was not a legal maxim, it “is a tenet jealously held and widely respected”. At the House of Lords the absence of statutory control was described as “astonishing”.

At Strasbourg41 it was held that the absence of statutory control meant that the right to privacy was breached. Although internal guidelines existed they did not satisfy the requirement of legal regulation as they were not legally binding, not accessible to the public and there was no scheme to independently deal with complaints.

Uzun v Germany 42was an ECHR case concerning the lawfulness of the use of GPS surveillance. The ECHR held that compatibility with the rule of law necessitated that domestic laws provide adequate protection against arbitrary interference with the right to privacy. All attendant circumstances must be assessed including “the nature, scope and duration of the possible measures, the grounds required for ordering them, the authorities competent to permit, carry out and supervise them”.

From interception of communications, to surveillance, to the use of covert human intelligence sources.

The Secretary of State is empowered to establish codes of practice. In Part 1 the regime for intercepting communications is set down. As regards other forms of surveillance, RIPA treats with directed and intrusive methods. “Directed surveillance” means covert methods likely to obtain private information, whilst intrusive surveillance extends to devices and persons deployed in the home or a private vehicle43.

Directed surveillance may be authorized by named senior officers44. Intrusive surveillance must be authorized by named very senior officers45 and be approved by a surveillance commissioner46.

Authorizations must only be granted if the measure is necessary and proportionate. RIPA, specifically enumerates the legitimate aims to make surveillance necessary. These include national security,

38

(1985) 7 EHRR 657 (1992) 14 EHRR 657 40 [1997] AC 558 41 (2001) 31 EHRR 1016 42 (App. No. 35623/05) - [2010] ECHR 35623/05 43 S. 26.

44 s.28 45 s.32 46 s.36 39

detecting and preventing crime, public order and the economic well-being of the state47. The Act further provides for the appointment of independent commissioners to review the conduct of persons given authority under the Act48 and a tribunal to hear complaints49.

The arrangements in Jamaica roughly approximate to where the UK was prior to RIPA. Only some areas of possible intrusions are covered. The Interception of Communication Act is an example but we have no law covering video surveillance. It is rather contradictory to have well developed laws regulating searching of premises when the police may employ technology to see into our homes and to have well developed laws on intercepting our telephone conversations when the police can use technology and eavesdrop on our regular conversations. This unregulated frontier provides conditions under which abuses can thrive. These could include using the technology for personal reasons, and improper disclosure of private information. I can do no better than to repeat the views of Lord Nolan in R v Khan: “There is only one further word which I would add. The sole cause of this case coming to your Lordships' House is the lack of a statutory system regulating the use of surveillance devices by the police. The absence of such a system seems astonishing, the more so in view of the statutory framework which has governed the use of such devices by the Security Service since 1989, and the interception of communications by the police as well as by other agencies since 1985.�

Jamaica needs bespoke legislation, followed by operational policies to safeguard against abuse of covert surveillance measures by providing for a fair and independent procedures for the prior authorization.

Following and adapting Kopp v Switzerland 50at a minimum what is required is a law that states: a. b. c. d. e. f.

the nature of the offences or aims which may give rise to a surveillance order; a definition of the categories of persons liable to have different kinds of surveillance; a limit on the duration of surveillance; the procedure to be followed for examining, using and storing the data obtained; the precautions to be taken when communicating the data to other parties; and the circumstances in which recordings may or must be erased or the tapes destroyed.51

Recourse Under the Constitution, anyone who thinks their rights have been or are likely to be abused may bring an action for redress52.

47

See for example s.28 s. 57 to 59 and 62 49 s.65 50 (1999) 27 EHRR 91 at [72], 4 BHRC 277 at [72], ECtHR. 51 See also Re McE [2009] UKHL 15 at [30], [2009] 1 AC 908 at [30], [2009] 4 All ER 335 at [30](citing Weber v Germany [2006] ECHR 54934/00 at [95], ECtHR) 52 S.19 48

At common law, an action in trespass is available for physical intrusion unto private property, an action for breach of confidence for revealing private information, and the law of defamation for injury to reputation. Roy may well consider the last two of these.

Breach of confidence requires further exposition. In Campbell v MGN their lordships explained that the cause of action requires no previous relationship of confidentiality as it is essentially misusing private information Per Lord Nicholls: 13 The common law or, more precisely, courts of equity have long afforded protection to the wrongful use of private information by means of the cause of action which became known as breach of confidence. A breach of confidence was restrained as a form of unconscionable conduct, akin to a breach of trust. Today this nomenclature is misleading. The breach of confidence label harks back to the time when the cause of action was based on improper use of information disclosed by one person to another in confidence. To attract protection the information had to be of a confidential nature. But the gist of the cause of action was that information of this character had been disclosed by one person to another in circumstances "importing an obligation of confidence" even though no contract of non-disclosure existed: see the classic exposition by Megarry J in Coco v A N Clark (Engineers) Ltd [1969] RPC 41, 47-48.

The confidence referred to in the phrase "breach of confidence" was the confidence arising out of a confidential relationship.

14] This cause of action has now firmly shaken off the limiting constraint of the need for an initial confidential relationship. In doing so it has changed its nature. In this country this development was recognised clearly in the judgment of Lord Goff of Chieveley in Attorney General v GuardianNewspapers Ltd (No 2) [1990] 1 AC 109, 281.Now the law imposes a "duty of confidence" whenever a person receives information he knows or ought to know is fairly and reasonably to be regarded as confidential. Even this formulation is awkward. The continuing use of the phrase "duty of confidence" and the description of the information as "confidential" is not altogether comfortable. Information about an individual's private life would not, in ordinary usage, be called "confidential". The more natural description today is that such information is private. The essence of the tort is better encapsulated now as misuse of private information.�(Emphasis mine) Per Lord Hope of Craighead: 85‌As Lord Woolf CJ said in A v B plc [2003] QB 195, 207, paras 11(ix) and (x), the need for the existence of a confidential relationship should not give rise to problems as to the law because a duty of confidence will arise whenever the party subject to the duty is in a situation where he knows or ought to know that the other person can reasonably expect his privacy to be protected.

Secrecy and the courts Law enforcement agencies have not been as transparent and accountable as they ought to be with regards to their use of new surveillance methods. The state must use secret surveillance to secure our lives, property and comforts. Conspiracies are almost always hatched in secret. Surreptitiousness is therefore an important tool but it may be open to such abuse where we cede what is personal and

cloistered to the state, and possibly to all. Scrutiny by the independent judiciary must be the check on executive action.

The common law has developed one tool to balance the needs for secrecy and accountability in the trial process. By hearing a public interest immunity application-once called “Crown Privilege”-the court will be able to determine whether the state agent can be absolved of his normal obligation to disclose material. The law on this area is now well settled. Whether public interest immunity is applicable is for the court not the executive53. Although the court must give full weight to the grounds of a properly made objection, the court can overrule the objection54.The court may ask for clarification or amplification of the objection, and has the power to inspect documentary evidence privately and to order its production notwithstanding ministerial objection55.

In R v H, R v C56, the House of Lords summarised the law on public interest immunity and laid down this useful test for criminal cases: “1. What is the prosecution seeking to withhold?

2. Will it weaken the Prosecution or strengthen the Defence? If the answer is yes then full disclosure is required (but see 3,4 and 5). If the answer is no then no disclosure is required.

3. Is there a real risk of prejudice to an important public interest if disclosure is made? If the answer is no then full disclosure is required, 4. If the answer to questions 2 and 3 is yes then ask: Can the defendant’s interest be protected by partial disclosure and the public interest be yet protected? Court can consider appointing special counsel to test prosecution’s claims.

5. If the partial disclosure at 4 is the minimum necessary derogation then do so. If not then employ the minimum necessary.

6. If this limited disclosure/non-disclosure will render trial unfair then order further disclosure even if this might cause prosecution to withdraw proceedings to protect the public interest.

7. Even where the answer to 6 is no the court must continue to reassess the matter during trial”

The prosecution must initiate putting the matter before the judge for determination. It ought not to be for the other side to get wind that the state has possibly relevant material and demand its production.

The state can secure sensitivity during the application by initially applying ex parte or by only revealing to the other side the category of the secret that they seek to have a ruling on. At the end of the analysis and where the court rules against public interest immunity the state will have the option of disclosing the material or terminating the litigation57.

53

Conway v Rimmer [1968] AC 910; RvH, RvC , Harry Daley v R [2013] JMCA Crim 14 Halsbury’s Laws of England Vol. 11 paragraph 579 55 Conway v Rimmer [1968] AC 910 56 [2004] UKHL 3, [2004] 3 ALL ER 1 57 R v Davis [1993] 1 WLR 613 54

There is not a lot of jurisprudence from Jamaican courts on public interest immunity. The Court of Appeal in, Harry Daley v R58, did not see the resolution of this issue as necessary to decide the appeal. In that case the appellant had sought to appeal the trial judge’s decision not to order the police to reveal the devices used to covertly record conversations between the appellant and a witness. The defence had been concerned about admitted deletions and omissions from the recordings. Panton, P expressed the view that the entire recordings ought to be put before the court for determination of relevance.

There is also a very learned discussion of the law in Resident Magistrate Jackson Haisley’s, as she then was, ruling in the matter of R v Merrick Miller.

The relative dearth of applications in this matter could indicate that state agents are avoiding scrutiny of the courts by keeping secrets from the courts in failing to initiate public interest immunity applications.

Where the public interest to be balanced is one of national security, English courts have shown great deference to the views in the ministerial certificate. Some authorities describe those certificates as being “all but conclusive” and that the courts need not even inspect the documents59. It is respectfully submitted that local courts should recognize the developments in the law in this area and not at all abdicate its remit. This is particularly so as ministers have not consistently shown sufficient scrutiny of the security forces. The judiciary must play an important role as the independent check and balance envisaged by the doctrine of separation of powers. The recognition of ministerial failure to properly assess the issues before granting a certificate in England following the Matrix Churchill inquiry has led to fewer applications for immunity in civil cases60.

Even in England this historical “deference” is not being allowed to circumscribe judicial independence today. In Regina (Mohamed) v Secretary of State for Foreign and Commonwealth Affairs (No 2) (Guardian News and Media Ltd and others intervening) 61 the House of Lords held that although the court must demonstrate utmost respect to the minister’s views in his public interest immunity certificates; it was for the court to decide whether to give effect to such certificates. The minister’s views could not command the court's unquestioning acquiescence and, while the court would require very solid and cogent reasons to reject and override an assessment, it would do so if the executive were acting unlawfully or if it considered the claim for public interest immunity unjustified. It is for the court to judge whether the minister's judgment and assertions are rational and sufficiently evidence-based.

Given the foregoing the prosecution in Ken’s case ought to apply to the judge for public interest immunity if they want to rely on the tape and transcript. Beginning with an ex parte application may be appropriate. The cogency of the attribution of the voices, and that Ken’s was one of them, seem quite critical. It would appear that if the crown does not want to reveal how they made the tape and transcript, they ought not seek to tender it in evidence.

A breach of the right to privacy will not ipso facto mean that the evidence obtained is inadmissible. R v Ali (Masqud) [1966] 1 QB 688 was a case where the police had covertly recorded the defendant’s conversations in his cell. The UKPC ruled that taped evidence was generally admissible so long as the 58

[2013] JMCA Crim 14 [53] Balfour v Foreign and Commonwealth Office [1994] 1 WLR 681 60 Phipson 17th Ed. 25-25 61 [2011] QB 218 59

voices are identified and the tape is relevant and otherwise admissible. A transcript of the tape recording is useful but the jury must be directed to come to their own conclusions as to what was said on the tape. The issues of right to privacy was considered in R v Khan (Sultan) [1997] AC 588 and Khan v UK (2001) 31 EHHR 1016, [2000] Crim LR 684. A bugging device was placed in the home without permission from the homeowner but the House of Lords ruled that the evidence was nevertheless properly admitted. The ECHR ruled that the breach of the right to privacy did not violate the right to a fair hearing.

Another case is PG and another v United Kingdom62, at this time the police’s use of covert listening devices was governed by Home Office guidelines. The chief constable approved an application and devices were placed at B’s apartment. B and the applicants were arrested. When they refused to give voice samples, their voices were surreptitiously recorded whilst they were in custody. At trial by a public interest immunity application, the police were permitted to conceal details of their surveillance methods.

The court held that: a.

The recording in B’s apartment breached privacy. The absence of any legal framework for this interference meant that it could not have been “according to law” and there was therefore a violation. b.

“Private life” was a broad term and could include events in a public context. Particularly where a permanent record was created. Again absence of law meant that it was not “according to law”. c.

However the right to fair trial was not breached as they had ample opportunity to challenge authenticity and self-incrimination not breached.

Conclusion The need for secrecy in the use of new surveillance technology is no excuse for failing to provide a proper legal framework that endeavours to control infringement of our right to privacy. RIPA provides a template. A balance can be found between national security and the detection of crime, on the one hand, and our privacy on the other. If this is not achieved the state will have failed in its responsibility to secure our rights and expose us all to capricious, unnecessary and abusive invasion into our intimate affairs.

Such abuses are not fanciful. In Liverpool operators of a CCTV system used it to spy on a lady in her apartment as she undressed63, some members of the US governments National Security Agency employed state surveillance assets to spy on their romantic partners64, and for a long time the FBI conducted covert, and often unlawful surveillance of domestic political organizations some of which posed no threat to national security or public order, Dr. Martin Luther King, Jnr being amongst them65.

Regarding the latter Nicholas Katzenbach, counsel to Robert Kennedy said: 62

(App. No. 44787/98) - [2001] ECHR 44787/98 http://news.bbc.co.uk/2/hi/uk_news/england/merseyside/4503244.stm 64 https://www.washingtonpost.com/news/the-switch/wp/2013/08/24/loveint-when-nsa-officers-use-theirspying-power-on-love-interests/ 65 http://www.npr.org/templates/story/story.php?storyId=5161811 63

“You cannot, in our society, allow any person in the Executive Branch, be it the President, be it the head of the FBI, the head of the National Security Agency, to have an unsupervised power to invade the privacy of people on national security grounds.�