Surveillance And Crime Control Tutorial PDF

Contemporary Developments in Criminal Law Session 1 Tutorial: Surveillance and Crime Control Keith Wharton [email protected] Surveillance in a changing landscape. Minority Report (2002) by Stephen Spielberg https://www.youtube.com/watch?v=901lYbPmqu4 Far fetched?...

Contemporary Developments in Criminal Law Session 1 Tutorial: Surveillance and Crime Control Keith Wharton [email protected] Surveillance in a changing landscape. Minority Report (2002) by Stephen Spielberg https://www.youtube.com/watch?v=901lYbPmqu4 Far fetched? http://www.msn.com/en-gb/news/world/use-of-police-robot-to-kill-d allas-shooting-suspect-believed-to-be-first-in-us-history/ar-BBu6qZ B?li=AA59G2&ocid=spartandhp Electronic probe evidence is lawful if properly authorised. Evidence was produced at the Steven Lawrence murder trial - An extract can be seen at: (PTO) Intrusive surveillance. https://www.theguardian.com/uk/video/ 2012/jan/03/police-surveillance-stephen- lawrence-killers-video Please be mindful that the evidence generated is of a racist nature and is clearly offensive. What we need to consider ECHR Introducing surveillance History and theoretical perspective Surveillance and criminal justice Technology and policing of surveillance Open source surveillance “Surveillance is conventionally perceived as a key component of the crime control apparatus” (Haggerty, 2011:1). Edward Snowden: Hero? Whistle- blower? Dissident? Patriot? Traitor? Google him- What do you think? The ECHR had a view……….. It was disclosed that the GCHQ was secretly intercepting, processing and storing data concerning millions of people’s private communications, even when those people were clearly of no intelligence interest. Subsequent ruling in 2018 by the ECHR held that UK laws enabling mass surveillance violate the rights to privacy and freedom of expression. Big Brother Watch and Others v United Kingdom (58170/13, 62322/14, What is surveillance? ‘surveiller’ (fr.) –‘to watch over’ Focused, systematic and routine attention to personal details for purposes of influence, management, protection or direction (Lyon 2007) Surveillance as ‘a wide range of methods of monitoring the behaviour, lifestyles or property of suspected or potential offenders- not just visual and optical, but aural, olfactory and electronic’ (John and Maguire, 1998: 42). Historic in nature Often linked to technology, but also human surveillance, and prevalent in ancient civilisations, China and Egypt to ensure state security. Edicts from 1215, Pope Innocent III, in relation to a duty of all citizens to watch out for heresy. ගැන විමසිලිමත් විය යුතු සියලුම පුරවැසියන්ගේ යුතුකමක් සම්බන්ධයෙන් 1215, III වන අහිංසක පාප්තුමාගේ නියෝග. ’’salvation could be found only through the Roman Catholic Church. Anyone who disagreed was to be handed over to secular lords for punishment, stripped of their property, and cast out of society until they proved their orthodoxy, or else be executed’’ The Perception Negative connotations of the word Involves relations of power Orwell’s 1984:dystopian novel. Mass surveillance, public manipulation. Adjective Orwellian: Describes official deception, secret surveillance, and manipulation of recorded history by a totalitarian or authoritarian state Traditional Criminological outlook Jeremy Bentham – (1748 – 1832) The Panopticon Prison (from Greek: ‘all’ and ‘seeing’)- Jeremy Bentham in late XVIII adapted this principle for his proposed prison- an ‘Inspection House’ – circular building, with the prisoner's cells arranged around the outer wall and the central point was the inspector’s tower. Form this point the inspector could observe the prisoner at any time, however the inmates were never able to see the inspector. Bentham called it:” new mode of obtaining power of mind over mind”. The concept meant to ensure that prisoners would modify their behavior and work hard in order to avoid punishment. Modern vision? Inspection functions ceaselessly. The gaze is alert everywhere. ~Michel Foucault Michel Foucault - Discipline and Punish: The Birth of the Prison (Penguin 1985) 208 Bentham’s panopticon enforces conformity and eliminates need for physical force to control behaviour. Michel Foucault described panopticon as a ‘cruel, ingenious cage’, a symbol of the repressive, disciplinary society, the modern ‘society of surveillance’. Sociologists: Michel Foucault (1926 –1984) philosopher, social theorist. His theories addressed the relationship between power and knowledge, and how they are used as a form of social control through societal institutions. Power; saw it as dispersed and pervasive- spreading widely throughout an area or a group of people. ‘Power is everywhere’ and ‘comes from everywhere’ so in this sense is neither an agency nor a structure (Foucault 1998: 63). The Viewer Society Foucault (1975)- Discipline and Punish: The Birth of the Prison. Fundamental change from social and theatrical arrangements, where the many saw the few, to modern surveillance activities where the few see the many.  From Encycopedia Brittanica… ‘With the advent of “man,” the notion that human character and experience were immutable gradually gave way to the notion that both body and soul could be manipulated and reformed. The latter notion lent the technologies of modern policing their enduring rationale. For Foucault, the epitome of the institutions of “discipline”—a mode of domination that sought to render each instance of “deviance” utterly visible, whether in the name of prevention or rehabilitation—was the Panopticon, a circular prison designed in 1787 by the philosopher and social reformer Jeremy Bentham, which laid each inmate open to the scrutiny of the dark eye of a central watchtower. Among contemporary instruments of discipline, the surveillance camera must be counted one of the most representative.’ Foucault in the modern world? Foucault contributes in an important way to our understanding of and sensitivity regarding modern surveillance systems and practices, which are expanding at an accelerating rate BUT……………… Thomas Mathiesen ’The Viewer Society, (1997) 1 (2) Theoretical Criminology – (A pioneer in prisoners' rights in the UK) But……he overlooks an opposite process of great significance which has occurred simultaneously and at an equally accelerated rate: the mass media, and especially television, which today bring the many — literally hundreds of millions of people at the same time — with great force to see and admire the few. In contrast to Foucault's panoptical process, the latter process is referred to as synoptical.- presenting or taking the same Moving on again from 1997 Synoptical. Affording a general view of a whole Internet – a total change? The boundaries between private life and public life has been blurred. There is a generation bought up on Internet applications that support social relationships and the ever increasing use of new tools of self- publication on the web, a large number of people are able to utilize online platforms to upload personal content, and share private details, photos, and videos, with a vast network of ‘friends’, and often an unspecified number of strangers… producing, in this way, long lasting digital information that remains on the web for a long time, exposed to intrusive eyes. Social network and apps From Facebook to Youtube to Instagram - a vast amount of personal material is shown to a mass audience of the Internet. The desire to put oneself on display it seems, is stronger than the fear of being monitored. Social media applications are radically changing not only the way we interact with other people, but also our view of what is private. A move toward a more interactive, social, and collaborative web, but also one that is more and more coming under surveillance. Personal need to record and share. Revenge Porn legislation Sections 33-35 of the Criminal Justice and Courts Act 2015 Instagram millionaires https://letsreachsuccess.com/become-instagram-millionaire/ Creation of fads Planking – to grumpy cats Blue whale group https://www.news.com.au/lifestyle/real-life/true-stories/blue-whale- suicide-game-administrator-arrested-in-moscow/news-story/ a5b16a802f7dc21a79dbff78e9f11bd3 Murder - https://www.youtube.com/watch?v=3K_6HWO-FKE /news/article-6067569/ Murder of child posted to dark web live Continued… Youtube -https://www.birminghammail.co.uk/news/ midlands-news/man-alleged-gang-links- arrested-13748856 Content focused on the most vulnerable https://www.theguardian.com/media/2019/ jan/30/social-media-urged-to-take-moment -to-reflect-after-girls-death What Surveillance includes. CCTV Electronic Monitoring of Offenders DNA databases Online surveillance Human surveillance Olfactory Surveillance You can also consider consumer surveillance, cards but also pop ups. Balance – moral and legal -doubt Surveillance Care Control Balance between: Crime prevention and national security vs. information privacy Legal context. (current) European Court of Human Rights- breach of privacy by phone tapping and listening devices – (Malone v UK (1984) 7 EHRR 14) Human Rights Act 1998 –Section 8 Police must take only such measures as are strictly necessary to achieve the required objective and the degree of intrusion into privacy must not outstrip the importance of the aim pursued (Colvin and Noorlander, 1998). කරගැනීම සඳහා දැඩි ලෙස අවශ්‍ය වන ක්‍ ප්‍ පමණක් පොලිසිය විසින් ගත යුතු අතර පුද්ගලිකත්වයට ඇතුළුවීමේ රමාණය අනුගමනය කරන ඉලක්කයේ වැදගත්කම ඉක්මවා නොයා යුතුය (Colvin and Noorlander, 1998). Police Act 1997 part III Data Protection Act 1998 Regulation of Investigatory Powers Act 2000 (RIPA) And now………………(PTO) Investigatory Powers Act 2016 (IPA). –Under the  Malone v UK (1984) 7 EHRR 14 Malone challenged the Whereas the House of legality of a tap on his Lords had previously telephone, mainly on rejected this the grounds that the argument, the ECtHR invasion of his privacy ruled in his favour, was authorized by insisting that any executive order rather interference with than by law passed by privacy had to be Parliament. firmly grounded in and hence limited by law passed by the legislature One step beyond? Investigatory Powers Act 2016 (IPA). The ability to hack under warrant Yet to be tested………….but consider Public Interest immunity…………would you ever know? A continual pushing of the boundaries - RE v United Kingdom (62498/11) 63 EHRR 2 RE v United Kingdom (62498/11) 63 EHRR 2 Solicitors in Northern Ireland became aware that their private conversations with detainees in police stations were subjected to covert surveillance. Breach of Articles 6 and 8 of Convention.  Contd… ‘The present case concerns the surveillance of legal consultations taking place in a police station, which the Court considers to be analogous to the interception of a telephone call between a lawyer and client. The Court has recognised that, while Article 8 protects the confidentiality of all correspondence between individuals, it will afford “strengthened protection” to exchanges between lawyers and their clients, as lawyers would be unable to defend their clients if they were unable to guarantee that their exchanges would remain confidential (Michaud v. France, no. 12323/11, § 118, ECHR 2012). The Court therefore considers that the surveillance of a legal consultation constitutes an extremely high degree of intrusion into a person’s right to respect for his or her private life and correspondence…’ Violation of Article 8 upheld. CCTV Estimated 4 million cameras in Britain CCTV as the ‘Fifth Utility’ 1960 temporary cameras in Trafalgar Square 1975 London Underground Northern Line & 145 cameras in central London 1970s & 1980s football crowds & political protests Now owners of public systems must register with Information Commissioner (DPA 1998) So what do you think?  Does CCTV work? Evidence mixed – Gill & Spriggs (2005) 13 areas (Welsh & Farrington 2002) 5 positive; 3 increase in crime; 5 no effect or unclear evidence Cameron et al (2008) 44 evaluations, 43% no effect or uncertain effect – only 19 statistically significant: 36.8% reduction; 52.6% increase; 10.5% no change or very small change ‘Works’ in some places but not others - https://researchbriefings.files.parliament.uk/documents/SN0 5624/SN05624.pdf Does it breach privacy laws? (Herbecq v Belgium, App No. 32200/96). Images taken at a demonstration – simply public behaviour, but care needed in relation to how the images are used. IE 1995 case of Geoffrey Peck, and Brentwood Council who subsequently gave images to the media as a ‘good CCTV story’. Peck v UK EHRR 287 (App. No. 00044647/98) Court emphasise Article 8 can be engaged when public authorities store and use personal information.  Peck v UK EHRR 287 (App. No. 00044647/98) The applicant was Some months later, filmed by a CCTV the Council issued two camera operated by photographs taken Brentwood Borough from the CCTV footage Council in a public street for publication in an moments after he had article about the attempted to commit preventative benefits suicide by slashing his of CCTV. The wrists with a kitchen applicant’s face was knife. not specifically masked Contd… The Applicant Held: the sought judicial applicant’s actions review of the were seen to an Council’s decision extent which far to release the exceeded any CCTV footage. His exposure to a application was passer-by or to a rejected and security confirmed by the observation and to Court of Appeal. He a degree applied to the surpassing that ECHR. which the applicant Contd… justify the The disclosure disclosure by the by the Council Council without therefore obtaining the constituted a applicant’s consent serious or ensuring as far interference with as possible that his his right to identity was respect for masked. private life. Disproportionate There were not interference with relevant or Article 8 sufficient CCTV Good or bad? The role of CCTV is identified as particularly strong, although the influence on its implementation has been neglected Political context in which they operate “In doing so, public policy is identified as the vehicle through which camera surveillance systems become installed and disseminated throughout public space”(Fussey, 2007:1) We have just become used to them. Electronic Monitoring Electronic Monitoring (EM) – equipment used as a surveillance tool to track whether offenders serving curfews comply with them. Tag around an ankle - Rehabilitation technique Cheaper than custody Removal of the need for a human co- presence Effectiveness as a public protection tool? DV issues – equipment is unreliable – 50% breach conditions. Body samples – DNA/FP The UK has the world’s first national DNA database. In 2010 it contained over 5 million people’s DNA profiles – mostly those who have been suspects in investigations or convicted of crimes. First – Collin Pitchfork How are they taken and from whom? S. AND MARPER v. THE UK (Applications nos. 30562/04 and 30566/04) No conviction/no retention –led to Protection of Freedoms Act 2013 Invasion of privacy or effective crime fighting tool? (Brian Field and the 33 year gap.)  S. AND MARPER v. THE UK (Applications nos. 30562/04 and 30566/04) The Court concluded that the nature of the powers of retention of the fingerprints, cellular samples and DNA profiles of persons suspected but not convicted of offences, as applied in the case of the present applicants, failed to strike a fair balance between the competing public and private interests and that the UK had overstepped any acceptable margin of appreciation in this regard. Accordingly, the retention at issue constituted a disproportionate interference with the applicants’ right to respect for private life and could not be regarded as necessary in a democratic society Human surveillance CHIS Undercover policing – Code of conduct June 2016 https://www.ucpi.org.uk/ - the Pitchford enquiry began July 2015 Proactive Intelligence gathering. Electronic surveillance – UC on line/open source (see next slide) Neighbourhood watch Crimestoppers Man who threatened to blow up a UK hospital avoid s terror charges after 'legal technicality' due to his Facebook privacy settings (Oct 17) Arrested on a malicious communications charge on October 8 and told officers 'if he was going to bomb somewhere it would be the Trafford Centre'. Olfactory Surveillance Electronic nose, Fido sensor, insect sensor, dogs… Information detected include: Police/BA uses - cash detection, DVDs, mobile phones, firearms, explosives and drugs Human Rights Act 1998 Expansion in the use of drug detection dogs Without specific legislative authority Absence of code of practice In Australia and US the use of dogs is subjected to Supreme Court decisions Olfactory comment Legally an interesting and growth area. Legal issues surrounding olfactory surveillance are similar to those raised by other forms of ‘new surveillance’ in the criminal justice system The failure of the legal system to deal with these issues in the case of olfactory surveillance could amount to a dangerous precedent for the regulation of other surveillance technologies In the UK, a significant expansion in the use of enforcement detection dogs has taken place over the last decade (Gordon, 2003) Olfactory continued. Drug detection dogs are now regularly deployed on public transport routes, in schools and on licensed premises. This development has taken place with relatively little debate, without specific legislative authority and in the absence of a code of practice. Their deployment has not been subjected to any scrutiny and its justifiability is yet to be determined. There is yet to have been any challenge to the use of drug detection dogs in any court in England and Wales. As with many new surveillance technologies, the rapid expansion in their deployment and lack of public debate has meant that the challenges posed have received little public attention. Other forms of surveillance Satellite imagery. Radio Frequency Identification (RFID) Geolocation devices Black box fitment Tagging employee’s ID badges/IT etc Verchip human insert – size: a grain of rice New surveillance New surveillance is the use of technical means to extract or create personal data. It makes the term close observation of a subject obsolete. It is the technical means by which this information is obtained that makes the surveillance intrusive because it permits information reasonably expected or assumed to be confidential to be obtained They challenge fundamental assumptions about personal and social borders (these after all have been maintained not only by values and norms and social organisation, but by the limits of technology to cross them) (Marx, 2002: 16). A whole new business of Open source surviellance Third man Social media feed surveillance. https://geofeedia.com/solutions/educ ation/ Net trawlers. Some modern society descriptors ‘maximum surveillance society’ ‘total surveillance society’ ‘new surveillance’ (Marx) Lianos & Douglas (2000) ‘automated socio- technical environments’ What impact does it have? Are you for or against surveillance? Considerations: surveillance as: Protection from terrorists and criminals Article 8 v Article 2 Restriction of privacy Breach of human rights? "You have zero privacy anyway. Get over it.” (McNealy, 2009)  Do you act differently? http://www.bbc.com/future/story/20140209 -being-watched-why-thats-good If you aren't doing anything wrong then you don't have anything to fear. When people think they are being watched, they donate more and litter less. Reading Of interest. https://www.youtube.com/watch?v=8tSXtR Tvn7A&feature=related http://www.criminallawandjustice.co.uk/fea tures/Electronic-Monitoring-Offenders https://www.gov.uk/government/publicatio ns/protection-of-freedoms-act-2012-dna-an d-fingerprint-provisions/protection-of-freed oms-act-2012-how-dna-and-fingerprint-evi dence-is-protected-in-law Reading Of interest https://www.theguardian.com/uk/2008/jan/ 16/ukcrime.forensicscience http://internetofthingsagenda.techtarget.c om/definition/VeriChip Marks, A. (2007) Drug Detection Dogs and the Growth of Olfactory Surveillance: Beyond the Rule of Law? Surveillance & Society; Special Issue on ‘Surveillance and Criminal Justice’ Part 1, 4(3): 257-271 Reading www.theguardian.com/world/2014/jun/19/ online-surveillance-undermines-intelligenc e Foucault M, Discipline and Punish: The Birth of the Prison (A Sheridan tr, Penguin 1985) Harris D, O’Boyle and Warbrick, Law of the European Convention on Human Rights (4th edn, OUP 2018)  Neyroud P, A Beckley, Policing, Ethics and Human Rights (Willan Publishing 2001) Starmer K, European Human Rights Law (LAG 1999) Anderson D, ‘The investigatory powers review: a question of trust’ (2015) 4 EHRLR 331 Gilbert S, ‘Someone to watch over me’ (2018) 23 Cov LJ 76 Cayford M and Pieters W, ‘The effectiveness of surveillance technology: What intelligence officials are saying’ (2018) 34(2) The Information Society