Lecture 2 Criminal procedure

Investigative measures

General characteristics:
 Building the hypothesis
 Prosecution/trial
 Prevention
 Intelligence (information) – it could become evidence information that could prove or disprove
charges
 How can we tell what kind of information we need?
 In abstracto procedural rules (certain measures we can’t use)
 In concreto definition of criminal liability and facts (definition of the offence and the facts –
substantive criminal law. For every offence the investigation and the evidence needed
differs).
 How much? It really depends on the fact of the case
 Have we found a hypothesis?
 Yes: moving on
 No: dismissed

Variety of investigative measures:

 Searches
 Interview
 Surveillance (traditional: under-cover agents, technical as CCTV, telecommunications
interceptions, photos, internet surveillance …). It can be in private or public space.
It does happen also against 3rd party who are innocent.

The most important problem is how to make sure that they are not infringing our rights?
Security v Liberty
- Ultima ration and proportionality (it really depends on the measure)
- Balancing can take place at different levels
a. Lawful prima facie (from the beginning): e.g. torturing someone
b. How to execute? There are certain methods, guarantees …
c. How long? Duration
d. Against whom? E.g. minors
e. For which crimes? Serious offences or way of commissions e.g. cartels

What to look for in legislation?

a. What is the measure for?
b. Personal scope – what is the cool of candidates for this measure?
c. Material scope
d. Do you need authorization?
e. Length (duration)
f. Urgent circumstances – are there exception if there is no time to wait for the precise
procedure?
g. Other conditions

Rights to privacy: article 8 ECHR

(1): right to respect for his private and family life, his home and his correspondents
(2): interference by a public authority can happen if in accordance to law and necessary in
democratic society
a. private life? Expectation of privacy for a reasonable person
b. lawfulness
c. legitimate aim: for national security, public safety … prevention of crime (it is always this! When
it comes to criminal procedure)
d. necessary in democratic society: proportionality and subsidiarity
 In concreto
 Proportionality: proportional to the crime/investigative purpose? E.g. speeding offence –
search the house?
 Subsidiarity: is this the least intrusive?
Lawfulness and proportionality interlinked

Example of measure: Interception of telecommunication

Really big interference with privacy. It is efficient, cost-effective, prime prevention and it is very
strong as evidence.
Inquisitorial system: it is considered evidence
Adversarial system: until 200 there was no legislation about it, almost nothing was admitted to trial
and article 8 ECHR convictions e.g. Halford v UK police officer was not promoted for sexists
reasons, the wanted to prove it but there was not legal basis.

The ECHR set very strict Lawfulness requirement:

1. Very serious interference (Uzun v Germany)
2. National legal basis (Kruslin & Huing)

Which are the legal requirements for inter. Telecom. In German law? Denny Crane
Sections 100a and 100e GCCP

Germany surveillance
- Motivated by the NSA scandals
- Each measure is separate
a. 100a telecommunication
b. 100b online search
c. 100c acoustic surveillance
d. Other means 100h
e. 100i

England and Wales: RIPA 2000

Problematic legislation: wide powers to many authorities (e.g. city council), weak safeguards: no
suspicion and no judicial supervision, many abuses and gross proportionality violations.
Snowden global surveillance disclosure 2013.
New legislation: investigatory powers act 2016 IPA Certain positive steps to improve the
situation such as – unlawful surveillance criminalized and judicial supervision but also some
negative steps such as more powers: bulk hacking and footprint monitored. The date retention was a
violation of Eu law

ADD PARAGRAPH 1 OF SECTION 17 SUBJECT MATTERS … OF IPA

Section 19 IPA the authority to give the yes is the secretary of state: executive! When he considers
it is necessary on grounds of section 20
There are no provisions regarding material scope? Which means for which crimes? We have no
lists of crimes applicable, hence it excludes only minimum offences and the rest is considered part
of it.
Personal scope? S 17 a person, an organization or more persons … this is not against suspects it is
against all people!!!!