THE DEPLOYMENT OF SPECIAL INVESTIGATIVE MEANS IN PROACTIVE ANTI-CORRUPTION INVESTIGATIONS. Background. Criminal investigations into allegations of corruption or economic crime traditionally reactive
Means or techniques used to gather evidence and/or information in such a way that they do not alert those being investigated.
Invariably their deployment will involve a breach of the right to a private life, which will have to be justified by those carrying out/authorising the operation
A special investigative technique, whether for intelligence-gathering or evidential purposes, must only be used when:
Article 6.1 of the Convention provides that:
"In the determination of…..any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law."
Article 8 provides: ANTI-CORRUPTION INVESTIGATIONS
"1. Everyone has the right to respect for his private and family life, his home and correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
The right to privacy enshrined in Article 8 is not absolute, it is a qualified right. Interference with the rights protected by Article 8(1) will give rise to a violation of Article 8 unless the interference is:
-the interests of national security;
-the interests of public safety;
-the interests of the economic well-being of the country;
-the prevention of disorder or crime;
-the protection of health or morals;
-the protection of the rights and freedoms of others; and
This means that the restriction on the exercise of an individual's Article 8(1) rights must:
There must also be adequate and effective safeguards and remedies against the abuse of such methods.
Factors to consider in determining whether a covert measure is proportionate to the aim pursued include:
In its widest sense, entrapment or provocation refers to any involvement of police operatives, or other agents of the State, in any form of trick or trap to obtain evidence of the commission of an offence, where more than merely an opportunity to offend has been given to the target(s).
If beyond ‘opportunity’, then = unlawful entrapment (i.e. Provocation)
Some key considerations: