1. Introduction
1.2 Study methodology, terminology and structure
1.2.1 Methodology
This study conducts a comparative analysis of the legal regimes, interpretations by domestic and European tribunals as well as key developments and contemporary practices concerning the use – or non-use – of intelligence information as evidence during trials in the following EU Member States: the United Kingdom, France, Germany, Spain, Italy, the Netherlands and Sweden. The choice of these seven Member States is meant to provide a selection of national historical, constitutional and legal backgrounds and experiences of allowing (or not allowing) the use of intelligence information and state secrets in courts. It is also designed to illustrate different conceptualisations of ‘state secret’ or ‘national security’ in national legislation. Five of these EUMS were included in the previous study conducted jointly between the Justice and Home Affairs Section of the Centre for European Policy Studies (CEPS) and the Centre d’Etudes sur les Conflits, Liberté et Sécurité (CCLS): the UK, Sweden, France, Germany and the Netherlands.11
Findings are based mainly on consultation with a new network of independent scholars and experts established specifically for this study. Consultation culminated in the ‘Country Fiches’ in Annex 5, most of which were drafted by the leading national scholar on the basis of questionnaires completed by academics, practitioners and civil society actors. The national scholar summarised questionnaire findings, thus ensuring independent analysis. Research of primary and secondary sources rounded out overall study objectives and scope.
In addition, two focus groups were organised in order to present the key findings of a first draft of the study and to receive comments and inputs: a focus group of civil society organisations active in the debates over the use of CMPs and intelligence information in courts and counterterrorism, and a focus group of practitioners from the private, legal and public sectors. Two focus group meetings took place on 30 October 2014 at CEPS in order to allow for comments on a draft outline of the study. The Proceedings Report of these meetings is included in Annex 4. Results from these discussions were taken into consideration when drafting the final version of the study.
1.2.2 Terminology and concepts
The analysis of the use of intelligence materials in courts requires clarifying beforehand concepts and terminology used in the study.
The study uses the concept of ‘intelligence materials’. In doing so, it includes information gathered, exchanged or stored by ‘intelligence communities’ (police, secret services, military or other law enforcement authorities). Each of the EUMS under scrutiny has its own specificities regarding intelligence-gathering. The study thus deals with both ‘human intelligence’ (gathered from a person on the ground) and ‘signals intelligence’ (gathered from interception of signals), which, depending on the institutional structures of the EUMS, can be operated by the police, dedicated special services and/or the military.
Reference is also made to ‘information’ and ‘intelligence’, while taking into account the blurring of the distinction between these two terms in practice. In principle, the distinction between information and intelligence is well-established. Information consists of bits of data that, when combined and viewed together with relevant background knowledge, may be used to produce intelligence, which informs the actions and decisions of policing organisations. However, as previous scholarly contributions have rightly suggested,
11 Ibid.
there is increasing confusion between ‘information’ and ‘intelligence’ in contexts where there is strong reliance on intelligence in policing activities.12 Peter Gill provided insights on how intelligence-led policing, specifically in the UK, grew considerably in the 1990s due to public rejection of traditional methods such as interrogations and confessions.13 Previous reports for the LIBE Committee of the European Parliament have underlined the more recent drive for intelligence policies in EU internal security strategies.14
Intelligence-led policing is a law enforcement practice and strategy that focuses on the reduction of crime through the use of criminal (predictive) analysis and intelligence. In this context, the distinction between
‘information’ and ‘intelligence’ is increasingly blurred. As the work of Gary Marx has amply demonstrated, it is not uncommon to refer to any information that comes into police hands by covert means as intelligence.
Innes and Sheptycki have highlighted that this elasticity of terminology should serve as a warning: “As the practices of intelligence-led policing have spread internationally and across a variety of policing-type institutions, the terms associated with it have become subject to some looseness of definition”.15 This has important consequences for this study, as such ‘looseness’ can lead to ambiguity in the nature and validity of secret materials when presented as ‘evidence’ in court.
Indeed, this raises a subsequent challenge: the distinction between ‘intelligence’ and ‘evidence’. As noted by Kent Roach, “[T]he ideal types of intelligence and evidence are rooted in a Cold War consensus in which intelligence could be collected to inform government about security risks with the expectation that it would never be publicly disclosed beyond the narrow range of those who ‘need to know’ and alas the occasional mole. In contrast, evidence was collected after a crime was committed. It could be subject to cross-examination and adversarial challenge and it would be used in a public trial to prove guilt beyond a reasonable doubt”. Roach argued that “although there have always been departures from the ideal types, the creation of sweeping new terrorism offences after 9/11 has blurred the traditional distinctions between intelligence and evidence. Such new offences reflect an intelligence mind-set that focuses on threats, risk, associations and suspicion as opposed to an evidence or criminal law mind-set that focuses on acts, accomplices and guilt. One implication of the blurring of the distinction between intelligence and evidence is a convergence between the work of police forces and security intelligence agencies in terrorism investigations. This convergence is driven in part by the demands of prevention”.16
Therefore, this study takes into account the effects and consequences of preventive logic in policing, which affects both the status of the suspect and the nature of the evidence used against him. Special attention is therefore given to the challenges posed by the use of the concept of ‘secret evidence’ and, in particular, the extent to which the quality and the robustness of ‘secret evidence’ can be properly scrutinised.
The study often refers to the concepts of ‘national security’ and ‘state interest’. These concepts encompass many different meanings and conceptual features across the EUMS under examination, and these specificities are detailed in Section 1.6. Our research thus addresses the risk of secrecy being used in the interests of state authorities. While the use of secrecy may be legitimate, it can neither be entirely discretionary nor arbitrary or unfettered, nor can it be used to the detriment of accountability and the democratic rule of law with fundamental rights. Fundamental questions concern the role of the executive in a liberal-democratic State and its discretionary flexibility over ‘what’ constitutes an issue of national security that would require secrecy, and the power of oversight and room for manoeuvre left to parliaments and the judiciary.
1.2.3 Structure
While addressing the issues and challenges raised above, Section 1 of the study provides a comparative assessment across the Member States under examination of the ways in which their national regimes and
12 M. Innes and J. Sheptycki (2004), “From detection to disruption: intelligence and the changing logic of police control”, International Criminal Justice Review, Volume 14.
13 P. Gill (2000), Rounding up the usual suspects: developments in contemporary law enforcement intelligence, Aldershot, Hants, England; Burlington, VT: Ashgate.
14 J. Jeandesboz, E-P. Guittet and A. Scherrer (2011), “Developing an EU Internal Security Strategy, fighting terrorism and organised crime”, Report for the LIBE Committee.
15 Innes and Sheptycki, op. cit.
16 K. Roach (2010), “The Eroding Distinction Between Intelligence and Evidence in Terrorism Investigations”, in N.
McGarrity, A. Lynch and G. Williams (eds), Counter-Terrorism and Beyond, London: Routledge, pp. 48-68.
judicial practices allow or do not allow for the use of intelligence information as secret evidence. It also analyses how the notions of ‘state secrets’ and ‘national security’ are understood and implemented in their relevant legislation, as well as how these concepts have been used, interpreted or dealt with by competent courts. In particular, the analysis covers how the lack of scrutiny by the judiciary over processes of classification/declassification of information prevents independent judicial scrutiny and effective remedies for suspects.
Section 2 examines the extent to which the judiciary is prevented from accessing information of the utmost relevance for delivering justice and safeguarding the interests at stake, or information that may constitute incriminating evidence when the State is engaged in alleged unlawful practices infringing human rights. This raises the question of the deferential or minimal degree of scrutiny exercised by some judicial authorities towards the executive in cases where national security and state secrets are invoked. Section 3 thus analyses the role played by supranational legal principles and standards developed by the European Court and Human Rights and the Court of Justice of the European Union and how they limit States’ actions and decisions that interfere with fundamental rights.
Our analysis of EUMS laws and practices concerning intelligence materials introduced in legal proceedings, and of EU standards in the field, sheds an interesting light on two connected challenges: freedom of the press and protection of ‘whistle-blowers’. Section 4 describes the ways in which these rights and freedoms are often compromised and jeopardised when national security issues are raised. This Section argues that derogations from freedom of the press and protection of ‘whistle-blowers’ in the name of national security not only obstruct public awareness as regards the functioning of their institutions, but also weigh heavily on the reliability of intelligence materials introduced in judicial proceedings.