The road to greater surveillance and restrictions of liberties has been paved with good intentions from both the right and left, says Matthew Ryder. As the public mood changes, it is worth keeping this in mind


In a world of “intelligence-led policing” how do you identify the line between legitimate crime detection and improper state surveillance? Not easily it seems. This week’s revelation that the police are logging the names of thousands of protestors who have never committed a crime is chilling. But in truth, even as these practises are coming to light, the tide of draconian police powers may be turning.

Britain — as we are told frequently — treats surveillance differently from other countries. From CCTV cameras on public streets to the gigantic fingerprint and DNA databases of the innocent, the UK has the dubious honour of being a world leader. In recent years, voices on the right and left have converged in protest. The Daily Telegraph’s Philip Johnston, and the Observer’s stalwart, Henry Porter, have often sounded remarkably similar. Nevertheless, society as a whole, including the courts, seemed willing to accept that modern policing and public safety require that we all needed to be watched, and logged and assessed.

Over the last 12 months, however, something changed. In December, the European Court of Human Rights disagreed with a House of Lords decision and declared that the British policy of retaining fingerprints and DNA of the innocent breached human rights. It was an important decision for two reasons. First, the Strasbourg court was forceful in its criticism of the House of Lords. It reminded Britain that it was seriously out of step with other European democracies. Second, the decision was a salutary reminder to libertarian conservatives that the Human Rights Act, and the Strasbourg jurisdiction, may not be so bad after all.

The trend has continued. In February the European Court confirmed that holding foreign nationals without trial was a breach of their rights; but it went further and suggested that basing their detention on “intelligence” information, heard in secret, may also breach the right to a fair trial.

Shortly afterwards, the House of Lords dealt a mortal blow to the use of secret intelligence evidence in control order cases, where “suspected terrorists” not convicted of any crime, are required to live under a range of oppressive conditions including close monitoring of their movements. Also this summer, the Court of Appeal overruled the High Court and found for the first time that retaining the pictures of a campaigner for “intelligence purposes” had been disproportionate and breached his right to privacy.

All of this has coincided with other developments that suggest growing disquiet about existing powers. The government has finally accepted the end of its surveillance society election albatross — identity cards. The Home Office has agreed to review and reduce its use of police terrorism powers, particularly section 44 of the Terrorism Act 2000, which allows arrest without reasonable grounds for suspicion. Even the appointment of Sir Hugh Orde as the new president of ACPO is significant. He has talked less of “intelligence-led policing” and far more about “policing based on human rights”.

If many of the wide powers claimed by the state are now both unpopular and unlawful, how did we arrive here in the first place? The received wisdom is that it is the fault of New Labour and the centre-right. They were carried away in an effort to ‘protect us’ from everything from terrorism and hoodies to credit card fraud and foot and mouth. Before we knew it, they were using the Regulation of Investigatory Powers Act to see if little Billy had been walking on the grass. The truth is more complicated.

Last month, in her radio series Jeopardising Justice, the leading human rights barrister Baroness Helena Kennedy QC provided an alternative thesis. She noted that one of the ways that that surveillance and suspicion has crept into our criminal justice system was, unwittingly, through the initiatives of progressive lawyers from the left. During the 1970s their antipathy to what they believed to be a reactionary legal system that failed to protect the vulnerable led them to devise creative solutions for battered women and others. They used civil injunctions and other means to provide a remedy, when the obstacles to proving criminal allegations had proved too difficult. Thirty years later, in an ironic tribute to those ideas from the left, the same principles are being used to expand the powers of the state. In doing so, the government has side-stepped ancient protections provided to suspects by the criminal law. Instead of evidence and proof being the key requirements for dealing with offenders, it is now surveillance, intelligence and suspicion. This approach has come to underpin everything from ASBOs and restraint orders, to witness anonymity provisions and counter-terrorism powers.

There is an important lesson here on how all of us tackle the balance between the power of the state and the freedom of the individual. While we may think we are “winning” by achieving a just result in an individual case, in time we may come to realise that the compromise was too high. Good intention, convenience, and the desire for the vulnerable to be safe, should not be allowed to override the principles which form our legal heritage and of which we should be so proud. Each time we permit surveillance to promote public safety, or curb freedom of expression in order to ensure that no-one is offended or disturbed, we begin to walk a dangerous path. The police must, of course, be entitled to gather the intelligence that they need to prevent unlawful behaviour and keep protest within lawful limits. But thankfully the public, the courts and even the government are increasingly recognising that there are important limits. We may want our safety protected, but we want our liberties protected too.

Matthew Ryder is a barrister specialising in criminal law and human rights