Raptor Persecutions & Prosecutions Take 2: How investigatory powers legislation read with human rights requirements might explain recent COPFS decision-making

This post is by Dr Phil Glover.

As an academic opposed to wildlife crime and with no ‘huntin/shootin/fishin’ interests (or indeed abilities) to declare, I have penned this article as a follow up response to my colleague Professor Peter Duff’s recent contribution to this blog relating to the correctness of recent Crown Office and Procurator Fiscal Service (COPFS) decisions not to prosecute in some recent wildlife crime cases. His piece stimulated robust debate on the emotive issue of wildlife crime and the admissibility of evidence pertaining to it, an issue that I wholeheartedly agree is crying out for greater legal (and legislative) certainty in Scotland and the UK. A number of the comments posted on the Raptor Persecution Scotland blog following Professor Duff’s article reflect complex research issues currently vexing me and on which I am seeking comments. As the academic responsible for Professor Duff’s references to the Regulation of Investigatory Powers (Scotland) Act 2000 (RIP(S)A) and the Data Protection Act 1998 (DPA) I feel it is necessary to expand upon them in light of some of the comments they have received.

The comments reflected questions I believe the COPFS would have to address in their decision-making. Some of them were partially (but in my view incompletely) addressed in a very helpful COPFS letter (PDF) of 30 May 2017 to Graeme Dey MSP (in his capacity as Convener of the Scottish Parliament’s Environment, Climate Change and Land Reform Committee). This article provides my arguably fuller answers and a suggestion or two as to how the current impasse or inconsistency in achieving successful prosecutions might be achieved.

Assuming no disingenuousness as to their purposes on the part of the Royal Society for the Protection of Birds (RSPB), it appears settled that its conduct in the controversial cases involved covertly placing and subsequently monitoring video-recording (data capturing) equipment adjacent to vulnerable wildlife sites for the (laudable) purpose (sole or otherwise) of processing the recorded film so as to provide Police Scotland and the COPFS with evidence identifying persons committing crimes against wildlife. On my admittedly skim reading of the cases referred to it appears that it is the RSPB, rather than Police Scotland, who undertakes the covert investigatory conduct. If not, disregard much of the analysis that now flows.

What are the legal implications of the RSPB’s conduct?

The legal implications of the RSPB’s conduct depend on the interpretation of two distinct legislative regimes that arguably apply.

The older, clearer, obviously applicable regime is that within the DPA. My PhD thesis concluded, inter alia, that virtually all forms of covert surveillance as commonly understood can be deconstructed to be reconceptualised as covert investigative data acquisition. Data acquisition and subsequent processing includes video recording of camera images and their subsequent use-  (Peck v United Kingdom, (2003) 36 EHRR 41 at [59] ) An excellent synopsis of the applicability of the DPA 1998 as regards the acquisition and processing of video recorded personal data in Scots law can be found in the recent case of Anthony & Deborah Woolley v Nahid Akbar or Akram [2017] SC Edin 7 (at paragraphs 72-74). For present purposes however, evidence suggests the RSPB are self-declared registered data controllers and data processors within the meaning of section 1 of the DPA insofar as they manage members’ personal data (defined in Section 1 of the DPA as … data which relate to a living individual who can be identified—(a) from those data, or (b) from those data and other information which is in the possession of, or is likely to come into the possession of, the data controller. Their role as controllers mandates them (DPA, s4(4)) to comply with all the data protection principles (DPA, Schedules 1-4 according to context).

Initial inspection suggests that the first principle has the most relevance:

(1) Personal data shall be processed fairly and lawfully and, in particular, shall not be processed unless

(a) at least one of the conditions in Schedule 2 is met, and (b) in the case of sensitive personal data, at least one of the conditions in Schedule 3 is also met.

In the context of the present analysis, the relevant Schedule 2 conditions are:

• that the subject of the personal data has consented to the processing (not realistic in investigative covert information acquisition) OR
• the data processing is necessary for the administration of justice OR
• for the exercise of any functions of the Crown, a Minister of the Crown or a government department, OR
• for the exercise of any other functions of a public nature exercised in the public interest by any person.

Schedule 3(6) additionally provides that sensitive personal data may be processed where such processing is necessary for the purpose of, or in connection with, any legal proceedings (including prospective legal proceedings), and 3(7) replicates the permissions in Schedule 2 regarding administration of justice etc.

On this reading, the registered data controller (here the RSPB) can lawfully obtain and process personal data tending to identify a living wildlife offender for these purposes under the DPA and its principles. Added weight to this assertion can be given by the fact that section 29 of the DPA provides, inter alia, that personal data processed for (a) the prevention or detection of crime or (b) the apprehension or prosecution of offenders are exempt from the first data protection principle (except to the extent to which it requires compliance with the conditions in Schedules 2 and 3).

If it is lawful, necessary and proportionate to the legitimate aim pursued (prevention of wildlife crime)  it is also ECHR compliant. Within the DPA regime therefore, all looks rosy for evidence of wildlife crime obtained and processed by the RSPB using covert investigative technical measures.

My view however, is that a second, more modern legal regime applies, namely that within the RIP(S)A. (HOLD THAT ‘PUBLIC AUTHORITY’ ARGUMENT, I WILL DEAL WITH IT!) The RSPB’s conduct directly equates to ‘directed surveillance’ as defined in RIP(S)A 2000, s1(2), namely covert, non-intrusive surveillance undertaken for the purposes of a specific operation or a specific investigation in such a manner as is likely to result in the obtaining of private information about a person. The same section (at s1(8)(a)) additionally provides that ‘surveillance is covert if, and only if, it is carried out in a manner that is calculated to ensure that persons who are subject to the surveillance are unaware that it is or may be taking place’. Meanwhile, ‘Private information in relation to a person, includes any information relating to the person’s private or family life’ (s1(9).

The term ‘equates to’ is not chosen lightly. This is because the RIP(S)A further provides that conduct amounting to directed surveillance shall be ‘lawful for all purposes if authorised’ (s5(1)) and that such an authorisation can only be issued by a ‘designated person’ (s6) within a ‘relevant public authority’ (s8). Inspection of s8 reveals that ‘relevant public authority’ does not include the RSPB. The RIP(S)A definitions for conduct amounting to covert directed (and intrusive) surveillance clearly state that such definitions apply only for the purposes of that Act (s1). Covert investigative conduct outside the RIP(S)A is not ‘surveillance’ within the meaning of the Act.

One initial view therefore might be that the RSPB’s covert investigative conduct as a ‘non-public authority’ takes place outside any statutory regime and therefore outside any European Convention on Human Rights (ECHR) safeguards. This view would mean that all the purportedly ECHR-compliant provisions of the RIP(S)A 2000 vis a vis ‘directed surveillance’ do not apply and are non-enforceable against the RSPB, meaning that their acquisition of private information about persons via covert video recording (in these cases the images enabling the identification of the alleged offenders) did not require to be authorised and would ultimately be admissible under the Scots law of evidence as no more than ‘irregularly’ obtained. This cannot in my view be correct, and I infer from their reference to ‘not authorised’ in their letter that the COPFS agree with me. Here’s why.

Strict adherence to this view creates the anomaly, indeed absurdity, that if it were Police Scotland covertly placing the video data-capturing equipment in identical circumstances to the RSPB for the same purpose (prevention of crime), an authorisation under s6 of the RIP(S)A, issuable only after strict considerations of the investigation or operation’s necessity and proportionality would be required, with the very real risk that if not issued, the evidence would be rendered unlawfully obtained and therefore inadmissible. Police Scotland have not been immune to severe censure for failure to adhere to RIP(S)A’s authorisation matrix (David Moran & Others v Police Scotland, IPT/15/602/CH, IPT/15/603 CH, IPT/15/613/CH, IPT/16/263/CH, IPT/16/264/CH, IPT/16/387/CH) It seems unthinkable therefore, that even before reading the Human Rights Act 1998 alongside the RIP(S)A, evidence obtained via covert investigative activity outside the RIP(S)A mechanism and safeguards would be considered lawfully acquired. If it were, Police Scotland would simply be able to ‘contract out’ of their ECHR-compliance obligations regarding covert surveillance by allowing non-State actors such as the RSPB to undertake it for them when it suited.

European Human Rights Expectations

Unsurprisingly, the European Court of Human Rights (ECtHR) has made decisions that acknowledge this potential circumvention. Simon McKay, author of Covert Policing Law and Practice (OUP, 2011) outlines in Chapter 10 (Private Surveillance) the decisions in MM v The Netherlands (2004) 39 EHRR 19 and Van Vondel v The Netherlands (Application No 38258/03, 25 January 2008) holding that investigating authorities cannot evade their ECHR responsibilities by the use of evidence obtained by non-State or ‘private’ agents. Crucially, in MM the police and the public prosecutor ‘made a crucial contribution’ to the eventual criminal proceedings, thus engaging the responsibility of the State. It is highly likely that the COPFS, as Scotland’s public prosecutor, would be held as being similarly engaged and therefore responsible for flaws in the human rights compliance of surveillance undertaken outside the RIP(S)A. It is this consideration of the implicit failure of the RSPB to adhere to the RIP(S)A, by seeking authorisation from Police Scotland to undertake ‘directed surveillance’ on an agency basis, that may have influenced the COPFS decision not to prosecute in the recent cases referred to. In my view the COPFS would be correct to consider this, as it seems unacceptable that public authorities are bound by the RIP(S)A compliance safeguards whilst bodies such as the RSPB remain currently exempt.

In the absence of a rapid amendment to the RIP(S)A, a simple solution to this problem, if no one has already thought of it, would be for the RSPB to engage Police Scotland in the practical implementation of covert investigative conduct, with Police Scotland taking all the relevant requisite steps under the RIP(S)A to ensure ECHR compliance and thus the lawfulness of the conduct. This might involve no more than the secondment of a Police Scotland operative to ‘supervise’ the RSPB investigation teams, but with the necessary RIP(S)A authorisations in place.

When considering the notion of amending legislation, a question arises as to whether the RSPB could or should be added to the ‘relevant public authority’ taxonomy in the RIP(S)A, s8(3) so as to enable them to authorise their conduct in ECHR-compliant terms. Regrettably, due to my favourite bugbear (legislative drafting), this could be problematic: section 8(4) provides that the Scottish Ministers may by order amend section 8(3) by adding or removing a ‘public authority’, but there is no provision for adding entities such as the RSPB that fall outside the ‘public authority’ definition.

At this point it can be noted that nailing down a set definition for ‘public authority’ appears beyond the UK and Scottish legislatures and is purpose-dependent.

The RSPB does not constitute a public authority for the purposes of the Freedom of Information (Scotland) Act 2002, Schedule 1, but can be designated as such under that Act (s4 and s5(2)). This point is worth expanding upon: s4 empowers the Scottish Ministers to amend Schedule 1 by adding or removing particular ‘bodies’, with s5(2) further empowering them to ‘designate as a Scottish public authority for the purposes of this Act any person mentioned in subsection (2) who (a) is neither for the time being listed in schedule 1 nor capable of being added to that schedule by order under section 4(1); and (b) is neither a public body nor the holder of any public office’. Subsection 2 provides that such persons include, inter alia, those who ‘appear to the Scottish Ministers to exercise functions of a public nature’. It seems strange that legislative drafting has enabled this here, but not in the RIP(S)A.

A further argument for applying the RIP(S)A – Domestic Human Rights Expectations

The arguably overarching Human Rights Act 1998 mandates: that courts and tribunals must take into account, inter alia, any judgment, decision, declaration or advisory opinion of the European Court of Human Rights (s2); that so far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights (s3) and that “public authority” includes—(a) a court or tribunal, and (b) any person certain of whose functions are functions of a public nature (s6(3)(b)).

The first point therefore is that the RIP(S)A must be read and given effect in a way that is compatible with the Article 6 right to a fair trial and the presumption of innocence and the Article 8 right to respect for private and family life, home and correspondence. One possible outcome of this is that the RIP(S)A cannot be read in such a way as to render directed surveillance by bodies not designated as relevant public authorities and that a section 4 declaration of incompatibility might be required. Another is that section 8 could be ‘read down’ to include all bodies exercising functions of a public nature.

Examples abound of jurisprudence and associated academic commentary on what constitutes ‘functions of a public nature’. To my knowledge, and subject to the caveat that airing a hasty academic legal opinion can leave gaps in analysis, covert investigative information acquisition equating to covert directed surveillance under the RIP(S)A conducted by a registered charity has not yet been the subject of domestic or European legal challenge. Given the Strasbourg jurisprudence already mentioned however, I am of the view that such conduct would be construed as ‘of a public nature’ and would render the RSPB a ‘public authority’ for RIP(S)A purposes. Put another way, I believe that the RIP(S)A would be ‘read down’ to incorporate conduct amounting to covert directed surveillance on the part of any body undertaking conduct amounting to covert investigative information acquisition that assists the State (in this case the COPFS) in bringing a prosecution. This would undoubtedly require the RSPB and similar bodies to seek an authorisation under the RIP(S)A by involving Police Scotland as outlined previously.

Conclusions

What we are left with then, is that the COPFS, when weighing up whether or not to lead evidence comprising recorded video data acquired covertly for investigative purposes by an organisation not currently recognised in law as a public authority, have to consider the effect of two distinct regimes. The first, ‘older’ regime is that within the DPA, in which the RSPB as a lawful registered data controller, processes data acquired covertly for a purpose exempted under s29 from a requirement to be fair and lawful and which will therefore be processed lawfully in the course of prospective legal proceedings and appears admissible. The second, ‘newer’ regime is that framed by an inadequately drafted RIP(S)A read, as it must now be read, with the relevant provisions of the Human Rights Act 1998. On this reading, the RSPB cannot currently lawfully undertake conduct amounting to lawful directed surveillance.

Having revisited the limited available published information surrounding the Colin Marshall case (heard in 2006), I am of the view that the Sheriff erred in admitting evidence of what may have started out as a nest surveillance, but what ended up as being directed surveillance of Marshall over 3 nights in 2003. There is no indication that the RIP(S)A was even considered. The second case, that of Mutch, similarly involves no recorded discussion of the RIP(S)A or the Sheriff’s view on its applicability. It is my respectful view that the Sheriff’s decision here was courageous and taken for public policy reasons, but that it either ignored or circumvented the applicable law (the RIP(S)A) albeit for laudable reasons. It is a disingenuous and ultimately untenable position to assert that an ‘RSPB investigation team’ (their description, not mine) monitors nests as part of a survey and captures/processes video evidence of criminality as a ‘by-product’ of that survey. It is my belief that the COPFS feel the same and are therefore unfortunately bound to discount video recorded evidence if it has been obtained by investigation teams not listed as public authorities in RIP(S)A s8. Consequently, in my view, the answer lies in ‘contracting’ directed surveillance of vulnerable sites back to Police Scotland, seconding Police Scotland personnel to supervise RSPB investigation teams, or in the longer term amending the RIP(S)A after suitable public consultation.

It is understandable that champions for wildlife protection will feel frustrated at inconsistencies in the bringing of criminal proceedings and that courts represent the best and most transparent arbiter on matters of admissibility. However it is not the role or function of Scottish courts to decide whether or not to prosecute. That thankfully wholly independent decision is for COPFS. Having weighed the evidence that has been obtained outside the requirements for lawful, authorised, directed surveillance conduct and therefore outside the guaranteed ECHR compliance, the COPFS are probably right to err on the side of caution and avoid risking widespread public censure for abuse of process. Bodies such as the RSPB, in the short-term absence of them being added to the RIP(S)A mechanisms, should engage with Police Scotland to ensure lawful RIP(S)A and Human Rights Act 1998 compliance. In the mid- to longer term, those in government entrusted with wildlife protection should be lobbying vigorously to have the RIP(S)A amended to incorporate the RSPB, in the same manner as SEPA. Wildlife crime is too serious not be prosecuted, but the overarching requirement under ECHR Article 6 that proceedings be fair mandates that evidence acquisition must be lawful, on a legal basis, necessary and proportionate.