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Investigating crime; and

Investigating crime; and ensuring the integrity of the criminal process Page 79 and corruption (including corruption in the judicial sphere), the Strasbourg Court has stressed that the risk of police incitement entailed by such techniques requires that their use must be kept within clear limits. Certainly, ‘the Convention does not preclude reliance, at the preliminary investigation stage and where the nature of the offence may warrant it, on sources such as anonymous informants’. However, ‘the subsequent use of such sources by the trial court to found a conviction is a different matter and is acceptable only if adequate and sufficient safeguards against abuse are in place, in particular a clear and foreseeable procedure for authorising, implementing and supervising the investigative measures in question’. Moreover, ‘while the use of undercover agents may be tolerated provided that it is subject to clear restrictions and safeguards, the public interest cannot justify the use of evidence obtained as a result of police incitement, as to do so would expose the accused to the risk of being definitively deprived of a fair trial from the outset’. 230 Police incitement occurs ‘where the officers involved – whether members of the security forces or persons acting on their instructions – do not confine themselves to investigating criminal activity in an essentially passive manner, but exert such an influence on the subject as to incite the commission of an offence that would otherwise not have been committed, in order to make it possible to establish the offence, that is, to provide evidence and institute a prosecution’. 231 The use of undercover agents must thus be restricted and accompanied by appropriate safeguards. ■ In Teixeira de Castro v Portugal, two plain-clothes police officers acting as undercover agents had approached the applicant during a drug trafficking operation and had asked him to supply heroin. The applicant’s name had been supplied to the officers and he was arrested at the point where he handed over sachets of the drug. Relying on Article 6, he complained that he had not received a fair trial due to the fact that he was incited to commit an offence by plain-clothes police officers acting on their own initiative as agents provocateurs and without judicial supervision. For the Court, the behaviour of the officers had gone beyond what was acceptable of undercover agents ‘because they instigated the offence and there is nothing to suggest that without their intervention it would have been committed’ and so, ‘right from the outset, the applicant was definitively deprived of a fair trial’. Although recognising that the rise in organised crime called for appropriate measures, 230 Ramanauskas v Lithuania, judgment of 5 February 2008 at paragraphs 53-54. 231 Ramanauskas v Lithuania, judgment of 5 February 2008 at paragraphs 54-55.

The European Convention on Human Rights and Policing Page 80 the fair administration of justice could not be ‘sacrificed for the sake of expedience’ since the public interest could not be used to justify the admission of evidence obtained through police incitement. 232 ■ In Ramanauskas v Lithuania, a prosecutor had been convicted of bribery for agreeing to ensure the acquittal of a third party in return for money after having been approached several times by an individual who it later transpired had been an officer from a special anti-corruption police unit. The Grand Chamber considered that there had been a violation of the right to a fair trial since there had been no indication that the offence would have been committed without such an intervention, noting also that the domestic courts had taken no steps to carry out a proper examination of the applicant’s allegations of incitement. 233 ■ In Milinienë v Lithuania, no violation was established. Here, a judge had been convicted of corruption following a conversation between her and a private individual who had secretly recorded the discussion. The individual had then approached the police. While noting that the police had ‘influenced’ events (through approval to offer financial inducements and by supplying technical equipment to record conversations), the role of the police was deemed not ‘to have been abusive, given their obligation to verify criminal complaints and the importance of thwarting the corrosive effect of judicial corruption on the rule of law in a democratic society’. Further, the determinative factor had been the conduct of the individual and the judge, and on balance, ‘the police may be said to have ‘joined’ the criminal activity rather than to have initiated it’. 234 Questioning suspects: detainees’ rights while in police custody The questioning of suspects is a vital part of policing. However, this must take place alongside a recognition of the suspect’s rights. Two separate issues arise: first, respect for the right to silence and the right against self-incrimination; and secondly, the rights of detainees while in police custody (and in particular, the right of access to a lawyer). 232 Teixeira de Castro v Portugal, judgment of 9 June 1998 at paragraphs 34-39. 233 Ramanauskas v Lithuania, judgment of 5 February 2008 at paragraphs 62-74 (and at paragraph 50, noting that the Council of Europe’s Criminal Law Convention on Corruption (ETS 173(1999)), Article 23 requires states to adopt measures permitting the use of special investigative techniques). 234 Milinienë v Lithuania, judgment of 24 June 2008 at paragraphs 35-41.