Surveillance and criminal investigation: Blurring of thresholds and boundaries in the criminal justice system?

Abstract

Surveillance is increasingly used as in investigative technique, both as a tool of judicial investigation to gather evidence as a tool in a pre-active setting, before the preparation of an offence, to gather information about risks, threats and dangerousness of personal behaviour and thinking. The net widening and function creep of investigative surveillance imply conceptual changes which are strongly related to the information society and to transformations in the criminal justice system under the security paradigm. Classic thresholds and procedural guarantees in the criminal justice system have become obsolete. The human rights dimension of these surveillance measures are mostly dealt with under the protection of privacy. However, given the potential intrusive impact of surveillance and the coercive character of some surveillance techniques, also in the pre-emptive setting, it is logical to build in guarantees against disproportionate infringements of privacy, human dignity and the presumption of innocence. The latter could then be related not to the commission of offences, but also to the definition of dangerousness.