A Comparative Analysis of Anglo-Dutch Approaches to ‘Cyber Policing’: Checks and Balances Fit for Purpose?
| Author | Adam Jackson,Chrisje Brants,Tim J Wilson |
| Published date | 01 October 2020 |
| Date | 01 October 2020 |
| DOI | http://doi.org/10.1177/0022018320952561 |
| Published By | Sage Publications, Inc. |
| Subject Matter | Articles |
Article
A Comparative Analysis of
Anglo-Dutch Approaches to
‘Cyber Policing’: Checks and
Balances Fit for Purpose?
Chrisje Brants
Northumbria University Law School, UK
Adam Jackson
Northumbria University Law School, UK
Tim J Wilson
Northumbria University Law School, UK
Abstract
This article examines two contrasting approaches to the governance of police investigations for
ensuring that cybercrime-policing is lawful and ethical. The Netherlands has a national police
force working under the direction of an equally centralised prosecution service according to
specific laws on the use of special powers of surveillance, with evidence tested judicially when
added incrementally to the case file. Theoretically, the process of adapting to the novel features
of cybercrime policing should be much easier than within the much more fragmented policing
structure in England and Wales, where unreliable evidence is challengeable only at the trial
stage and the laws governing police action are equally fragmented. The Dutch police, however,
have not found it easy to adapt concepts of covert policing developed in the 1990’s to their on-
line investigative activities, despite the existence of comparatively detailed guidance and case
law for undercover policing in the ‘real’ world.
In the UK, the police seem unsure which requirements and concepts actually apply to their
different on-line-investigations. More generally, it is concluded that legal comparisons of the
kind undertaken in this article can identify general bottlenecks and barriers to adapting to the
cyber environment, but such analysis cannot identify best practices that are readily transferable
from one country to another. Legal transplants are a potentially hazardous undertaking
because any practices and policies that work successfully will do so because they are neces-
sarily compliant with the underlying systemic legal-cultural factors that make each legal system
unique. Indeed, we make no attempt to identify best practices, other than to remark that the
Corresponding author:
Chrisje Brants, Professor of Law, Northumbria Centre for Evidence and Criminal Justice Studies, Northumbria Law School,
Northumbria University, Newcastle upon Tyne NE1 8ST, UK.
E-mail: chrisje.brants@northumbria.ac.uk
The Journal of Criminal Law
2020, Vol. 84(5) 451–473
ªThe Author(s) 2020
Article reuse guidelines:
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DOI: 10.1177/0022018320952561
journals.sagepub.com/home/clj
centralised nature of Dutch policing seems to afford some advantage, although, for historical
and legal-cultural reasons, centralisation is unlikely to be an option for the UK police forces
Keywords
Cybercrime, police organisation, Dutch prosecution service, disclosure, admissibility
Introduction
In this contribution that is concerned with the response of the criminal justice system to cybercrime, we
examine how different countries (England and Wales and the Netherlands) deal with policing crime on
the internet.
1
We do not intend to engage in the debate around the definition(s) of different forms of
crime that may be committed with the use of digital devices.
2
Rather, we want to focus on the particular
problem of regulating cyber-policing on both the clear and dark web, although we do wish to explain at
the outset what we understand by cybercrime.
The Crown Prosecution Service (CPS) in England and Wales recognises two ‘overarching’ areas of
cyber-crime:
- cyber-dependent crimes, which can only be committed through the use of online devices and
where the devices are both the tool to commit the crime and the target of the crime [e.g. Distributed
denial of service (Ddos) attacks]; and
- cyber-enabled crimes, traditional crimes which can be increased in scale by using computers.
3
The approach of the CPS mirrors that of the UK government’s National Cyber Security Strategy
2016–2021,
4
resulting in a broad definition of cyber criminality encompassing not only de facto com-
puter crime but also ‘traditional’ criminality that involves the use of a digital or cyber element in its
commission. As Karyda and Mitrou identify:
A cybercrime is an electronic crime that is perpetrated using the Internet, or a crime whose ‘crime scene’ is
the Internet. Cybercrimes are not necessarily new crimes; many cases involve rather classic types of crimes
where criminals exploit computing power and accessibility to information.
5
It is this definition of cybercrime that we have adopted for the purposes of this article, although we
shall sometimes use synonyms such as ‘on-line-crime’, ‘internet-crime’ or ‘digital crime’. This covers
the regulation and/or supervision of the police response to crime on the clear and the dark web, to ‘new
crimes’ that can only be committed by digital means and traditional crimes that are ‘enhanced’ by the use
of digital devices. There is a considerable body of literature about how and why such criminality poses a
new challenge for police and the criminal justice system, and also on whether police and criminal justice
institutions are sufficiently resourced and competent to meet these challenges.
6
This article is concerned
with whether current procedural and evidential frameworks provide sufficient checks and balances, and
with the development of systems and strategies to ensure that the regulation of policing in cyber space is
fit for purpose. The question will be a nswered through a nalysis of the re levant structur es, procedures
1. See Brants, Johnson and Wilson in this issue for the background to this research.
2. See, eg, DS Wall, Cybercrimes: The Transformation of Crime in the Information Age (Polity, Cambridge 2007).
3. <https://www.cps.gov.uk/cyber-online-crime> accessed 14 September 2020.
4. HM Government, National Cyber-Security Strategy 2016-2021 (London 2016) 17.
5. M Karyda and L Mitrou, Internet Forensics: Legal and Technical Issues (2007) Proceedings of the Second International
Workshop on Digital Forensics and Incident Analysis (Institute of Electrical and Electronics Engineers, New York 2007) 4.
6. See also Davies in this issue.
452 The Journal of Criminal Law 84(5)
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