Human Rights, Serious Crime and Criminal Procedure - College of ...

Taking a "Balanced" View of the Public Interestthe fact is that, faced with the myriad of opportunities for concealmentof fraudulent activities which companies and trusts provide,Parliament has established an inquisitorial regime in relation toserious or complex fraud, and has given the SFO the power to callupon a person to come into the open and to disclose informationwhich may incriminate him. 35These words were written a few years before the StrasbourgCourt held that evidence obtained from the compulsory questioningcould not be used in an ensuing prosecution withoutviolating Article 6 of the Convention 36 ; the purpose of includingthem here is to identify the reasoning behind the decision toprovide stronger powers. It seems that the ease with whichthese offences can be concealed is cited no less frequently thantheir intrinsic seriousness when calling for greater powers.(iv) Special procedures arid defendants' rights:We have noticed that categories such as terrorism and organisedcrime are often used in order to introduce extended powers ofintrusion. In the countries surveyed above, it is not the rights ineither Articles 5 or 6 but rather the right to respect for one'spersonal life (the so-called privacy right) which is most ofteninterfered with. Under Article 8 of the European Convention,interference with the right can be justified on certain grounds,particularly if it can be shown to be "necessary in a democraticsociety" for the prevention of serious crime. 37 In Germany theConstitutional Court has constructed from the privacy right aRecht auf informationelle Selbstbestimmung (a right to determinethe use of one's own personal data), 38 and the provision forintrusive powers to investigate cases of organised crime anddrug trafficking may be regarded as a justifiable exception tothis. Similarly, the extended powers provided in Canada by theControlled Drugs and Substances Act 1996 interfere chiefly withthe privacy right. The same trend can be seen in Scandinaviancountries, in respect of what they term "new crimes" (terrorism,drug trafficking and organised crime). Thus in Norway an Actamending the Penal Code and Criminal Procedure Code relatingto "new investigation methods" was passed in 1999. Thislegislation both curtailed some forms of investigation, on thegrounds that they appeared incompatible with the EuropeanConvention, and expanded other forms in a way that wasbelieved to conform to the Convention. The "new investigationmethods" include secret surveillance, secret searches and seizures,and the use of undercover officers. However, it isnoticeable that this law incorporates several safeguards for the105