UK: Police Bill: new powers to "bug and and burgle"
01 November 1996
The Police Bill which is currently before parliament will allow the Chief Constables, or their designated deputies, to authorise "bug and burgle" operations - officially termed "intrusive surveillance". The police, in short, will be able to empower themselves to enter property (at home or workplace) in order to "interfere" with property (to remove or "plant" items) or to install surveillance devices ("bug" to record conversations or "video-bugs"). (A full summary of the provisions of the Bill are set out on pages 20-23).
Section 89 of the Police Bill has been presented to parliament and the public as simply placing on a statutory basis Guidelines on surveillance operations issued in 1984 after the passing of the Police and Criminal Evidence Act (PACE).
An examination of this contention - by comparing the 1984 Guidelines with Section 89 of the Bill - shows it to be totally false and transparently misleading.
Where the Bill differs from the 1984 Guidelines
1. The 1984 Guidelines did NOT cover "interference with property" only "wireless telegraphy" (literally wire-less surveillance devices).
2. The 1984 Guidelines did NOT confer a power of "entry" except to effect "wireless telegraphy".
3. The 1984 Guidelines set much narrower criteria for "authorisation": normal methods must have been "tried and failed"; the use of intrusive surveillance "would be likely to lead to an arrest and conviction"; devices should only be used for "major organised conspiracies and other particularly serious offences, especially crimes of violence." None of these limitations are included in the Bill or in the draft Code of Practice.
4. The 1984 Guidelines only allowed the delegation of "authorisation" from the chief constable where there was a "degree of consent" by a member of the public - this test is absent.
6. The 1984 Guidelines set the time limit for "authorisation" at 1 month - not 6 months.
7. The 1984 Guidelines did not allow for agencies like the NCIS to have powers to conduct surveillance anywhere in the UK or on behalf of any "law enforcement agency" in the world.
Moreover, controversial powers of entry and search given under PACE were, except in emergency or for arrest, only granted with a warrant from a magistrate or a circuit judge (a judge who normally presides over the crown court).
Self-regulation is a recipe for abuse
If there is one lesson to be learnt from the Van Traa inquiry in the Netherlands - which involved 100 tons of drugs being recirculated with informers being allowed to keep the "profits" - it is that to allow police forces the powers of self-regulation is to invite abuse.
MI5 were empowered to "bug and burgle" under Section 3 of the Security Service Act 1989, a power extended to "serious crime" under the Security Service Act 1996. But to exercise these powers to enter and interfere with property MI5 have to obtain a warrant from the Home Secretary. Chief Constables on the other hand are to be allowed to authorise themselves. Self-regulation is a dangerous practice especially in the use of exceptional powers to clandestinely enter homes and workplaces.
The idea that the police are more "accountable" than the judiciary (in great need of reform though it is) is nonsense. A judge, before granting a warrant, would have to take into account the circumstances of the case and any legal rulings or precedents interpreting and defining the use of such warrants. It is not the job of police officers to make such judgements. It is also an argument that confuses the constitutional roles of the enforcement of the law by the police and the interpretation of the law by the judiciary as set out in statutes passed by parliament.
The appointment of a Commissioner to deal with complaints will be greeted with well-founded scepticism given the record of the current Commissioners dealing with telephone-tapping, MI5 and the intelligence agencies who have never upheld a single