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

Taking a "Balanced" View of the Public Interestcommitted in a commercial or habitual manner, and that theFrench law extending the period of custodial remand, refers tooffences committed in an organised group. In both cases theinterpretation of the relatively broad concepts is crucial, for theycould easily be used in an expansive manner so as to encompasssmall-time repeat offenders who have a few contacts with otheroffenders.The expansion of definitions of key legal concepts would beless of a concern, however, if any special new powers wereaccompanied by special safeguards for suspects anddefendants—along the lines found in various laws in Austria,Norway and Sweden. If appropriate safeguards are introduced,the expansion of definitions is not a way of avoiding rights.However, the trend in this country and some others has been tointroduce enhanced powers of surveillance and investigationwithout going as far as some other European nations to ensurethat individual rights are safeguarded. For example, the Regulationof Investigatory Powers Act 2000 allows intrusions on theArticle 8 rights of individuals in certain circumstances, withoutjudicial supervision (as required by Convention jurisprudence)and without appointing someone whose task is to ensure thatthe rights of those subjected to surveillance are properly maintained.The idea of appointing someone for this kind of purpose,adopted in legislation in Norway and in Austria, 48 was notregarded as necessary for these purposes, 49 although it has beenadopted subsequently as part of the machinery for challengingthe certification of a person as a "suspected internationalterrorist" under the Anti-terrorism, Crime and Security Act2001. 50The response to some of these proposals is likely to take theform of an assertion that greater powers of investigation andspecial procedures are necessary on account of the seriousnessof these crimes, and that it may be necessary to curtail individualrights in order to protect public interests. It is now time toconfront this argument directly.C. MAKING EXCEPTIONS FORSERIOUS CRIME?One basic assumption, sometimes explicit and sometimesimplicit, underlying many judicial and political statements isthat where the public interests in detecting and prosecuting acrime are high—as with serious crimes—the case for individualrights is weaker. To what extent, if at all, should the safeguards108