?Thirty years ago, crime was planned and carried out by conspirators who met face to face or used basic telephones to communicate. The last three decades have seen a revolution in communications, to the extent that crimes may be committed merely through use of the technology: conspirators may plan, discuss and carry out crimes without even having met.
While in Sherlock Holmes' time it may have been considered adequate to search for footprints, later on fingerprints and other physical evidence, this is no longer good enough. One of the relatively new tools in investigating crime is, thus, interception of telecommunications in the course of transmission.
This is used in many countries, but has not been given legitimacy in all of them. The result in such cases is that investigators are hamstrung (eg, service providers are under no obligation to assist in interception), and so the courts are denied the best evidence that might be available. In 1984, in the case of Malone, the European Court of Human Rights declared that the practice in England, where interceptions were guided merely by the Post Office Act and ministerial guidelines, violated the human rights of an individual: his right to privacy.
Investigatory powers
The authority of the minister was deemed "somewhat obscure and open to different interpretations." The UK's response to this was to pass the Interception of Telecommunications Act, 1985, which made it an offence to intercept communications transmitted by post, or in the course of public telecommunications system. The exception was where the Secretary of State issued a warrant addressed to a specific person, requiring him to intercept the communication described in the warrant.
Of note was the fact that the act provided that no evidence was to be given that a warrant had been issued. This act was eventually replaced in 2000 by the Regulation of Investigatory Powers Act, because it was found to be limited with the new developments in technology: the Internet and cellphones, and it did not cover private telecommunications.
The UK set the tone for the rest of the Commonwealth, and today most of the more developed countries within the Commonwealth and some not so developed have passed laws regulating the interception of communications. These include Canada, Australia, New Zealand, South Africa, Jamaica and even St Lucia. Trinidad and Tobago is an exception. Common to all of these are three issues: the power to intercept, the safeguards and whether the communication should be used as evidence.
The law allows certain people, on application to a specified authority, to obtain a warrant to intercept communications in the course of transmission. Such communications would include telephone calls (land and mobile); e-mail and other forms of transmissions over the Internet, including voice and picture recordings. In the UK, the application is to the Secretary of State. In Canada, New Zealand, Australia and Jamaica, the application must be made to a judge, usually by a member of the police.
In the UK, where the application is not to a judge, a list of people is specified in the act. The interception must be shown to be necessary in the interest of national security or to detect/prevent crime. There are various safeguards to protect citizens' rights. In those countries where there is need for an application to a judge, this in itself is considered a safeguard, the judge providing "the protection of a judicial decision between the citizen and the power of the State."
Other safeguards include restrictions in use limited number of people, limited disclosure, limited number of copies. There are also provisions for offences of unauthorised disclosure/breach of confidentiality of warrant and the protection of privileged information between a lawyer and his client.
While there is an ongoing debate in the UK, on whether or not an intercept product should be used as evidence in a court of law, UK Commissioner of Interception of Communications, Paul Kennedy, in his report for the year 2007, said, "Interception has contributed to a number of striking successes during 2007.
"It has played a key role in numerous operations, including, for example, the prevention of murders, tackling large-scale drug importations, evasion of Excise duty, people smuggling, gathering intelligence, both within the UK and overseas, on terrorist and various extremist organisations, confiscation of firearms, serious violent crime and terrorism."
So whether or not the recording itself is usable in evidence in a court of law, the fact remains that as a tool for investigative purposes, the power to intercept is proving to be invaluable in many countries in the world. What are we waiting for in T&T? This is another area in which instead of being avant garde, we are behind the rest of the world, it seems.