Editorial: A trialogue on regulating data-driven criminal procedure
| Published date | 01 December 2023 |
| DOI | http://doi.org/10.1177/20322844231213484 |
| Author | Maša Galič,Lonneke Stevens,Bert-Jaap Koops |
| Date | 01 December 2023 |
Editorial
New Journal of European Criminal Law
2023, Vol. 14(4) 423–433
© The Author(s) 2023
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DOI: 10.1177/20322844231213484
journals.sagepub.com/home/nje
Editorial: A trialogue on
regulating data-driven criminal
procedure
Maˇ
sa Galiˇ
cand Lonneke Stevens
VU University Amsterdam, Netherlands
Bert-Jaap Koops
Tilburg University, Netherlands
Abstract
This editorial introduces a special issue on the challenges of regulating data-driven criminal in-
vestigations, in light of the interplay –or rather, the lack thereof –between criminal procedure law
and data protection law. The aim is to bring together scholars from both fields, to facilitate mutual
understanding and to present ideas on better aligning these bodies of law to form a comprehensive
normative framework. In data-driven investigations, police typically assemble large data sets to build
an information position, followed by automated analysis to detect patterns and find evidence of
potential crimes. The shift from traditional targeted, “case-seeks-evidence”investigations to data-
driven untargeted, “evidence-seeks-case”investigations challenges the current normative frame-
work. Discussing this challenge and the insights offered by the six contributions to this special issue,
the authors identify multiple problems: people in criminal law lack knowledge ofand therefore
undervalue data protection law; data subject rights do not function well in the criminal procedure
context; there may be an increasing emphasis on instrumentality in criminal law, at the cost of legal
protection; criminal law strongly focuses on legal protection of suspects, particularly during trial,
and does not cope well with investigations that never end up in court, nor with the protection of
innocent citizens whose data are now also pervasively processed as by-catch in criminal inves-
tigations; and the law has relatively strong norms on data collection, but not on data analysis. The
way forward lies in evolving towards a system that does not only protect suspects and victims but
that systematically incorporates the rights of innocent thirds; developing an integrated and con-
clusive system of data processing rules in law enforcement, including data analysis and on-going
reuse of data; and establishing a system of supervision that is adequately equipped to deal with the
new reality of data-driven criminal procedure.
Corresponding author:
Bert-Jaap Koops, Tilburg University, Postbus 90153, Tilburg 5000 LE, Netherlands.
Email: e.j.koops@tilburguniversity.edu
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