The Act was expedited through parliament with a significant degree of urgency (it was only introduced on 19 March) and therefore evaded the scrutiny typically given to crucial pieces of legislation. It aims to enable public bodies to respond more effectively to the Covid-19 pandemic, and in doing so has some potentially significant consequences for the criminal law.
Powers under the Investigatory Powers Act
The Act introduces powers to amend the usual requirements for signing warrants under the Investigatory Powers Act. Due to the implications for privacy and national security, warrants must usually be signed by one of 15 judicial commissioners and the secretary of state. Citing concerns over Covid-19 related sickness, the bill allows additional commissioners to be appointed on a temporary basis.
“Unless there are enough available judicial commissioners, there is a real danger that the warrant regime would cease to function, which would have extremely significant impacts on national security”, outlines the Bill’s summary of impacts document.
Commissioners are also granted an extended period of time in which to retrospectively approve an urgent warrant – from the usual three days to a maximum of 12.
During the draft stage of the bill, the human rights advocacy organisation, Liberty, expressed concerns that “[g]reater surveillance could be ushered in through the back door”. They issued a statement arguing that “[t]he emergency legislation may increase state capacity to issue warrants to access our personal information and data for state surveillance”. The government’s own summary of impacts admitted that warrant extensions may lead to interference with citizens’ rights to privacy under Article 8 of the ECHR, but judged them “necessary and proportionate in the circumstances”.
The debate over these powers likely represents a harbinger of wider issues to come, as emergency legislation introduced to deal with an urgent pandemic clashes with established human rights and data protection legislation. It has previously been reported that the government is working with mobile phone networks to analyse anonymous smartphone location data, with a view to seeing whether social distancing guidelines are being followed correctly. We can expect contentious judicial reviews of the use of such powers in the months and years ahead.
Extension of time limits for retention of fingerprints and DNA profiles
On a similar note, the government has extended the period for which biometrics (fingerprints and DNA profiles) may be retained, for purposes of national security, for up to six months following the direct approval of the secretary of state. There is also scope for a further extension up to a maximum of 12 months, without carrying out a further review of the individual’s risk to national security.
The Home Office stated that the measure was necessary due to the unprecedented pressure on police resources, making them unable to follow their normal processes of approval – termed National Security Determinations (NSDs).
The Biometrics Commissioner, who has a degree of independence from government, has said that their office will continue to “examine carefully the use and consequences of this extension period and produce a report for Parliament detailing my/their findings."
The Act makes provisions for parties and witnesses in court proceedings to appear via live video link rather than in person, significantly speeding up the criminal judiciaries’ use of technology in trials. The Act amends existing legislation with the aim that proceedings can now be conducted entirely by video or telephone link, where appropriate and lawful, to avoid the risk of spreading the disease through congregation in the public courts.
The measures have been introduced to deal primarily with urgent business during the outbreak, with other hearings and trials being postponed indefinitely.
All jury trials at the Crown Court have been temporarily suspended due to the pandemic, and the position of the Lord Chief Justice is that it is not currently possible to undergo these remotely, though the courts will endeavour to improve their resources as quickly as possible. As he said on Monday: “My unequivocal position is that no jury trials or other physical hearings can take place unless it is safe for them to do so.”.
The legislation will hope to lay the groundwork by which more hearings can move online in the coming weeks and months, as judicial technology attempts to keep pace with the necessity of government lockdowns and social distancing advice.
Where an individual involved in a trial is potentially infectious, the Act explicitly allows for hearings to be conducted entirely by video link unless the court directs otherwise.
Given the contention of the some of the additional powers, the Act requires a parliamentary debate to be held in both Houses of Parliament in 12 months’ time to assess the continuing relevance of the legislation. As indicated in its title, much of the Act has an explicit longstop date of two years, after which provisions will cease unless specifically renewed by lawmakers.
We can expect judicial scrutiny alongside legislative scrutiny, as legal challenges inevitably emerge. The powers contained in the Act are not revolutionary, but they lay the groundwork for an era of increasing government control over the lives of citizens, and increasing autonomy for government bodies to take decisions outside of usual processes. Alongside shifts in the way the courts operate, the coming months will pose interesting and controversial questions about the operation and function of the criminal law.