‘Information’ and ‘intelligence’
| Published date | 01 September 2017 |
| Author | Céline C. Cocq |
| DOI | 10.1177/2032284417723098 |
| Date | 01 September 2017 |
| Subject Matter | Articles |
Article
‘Information’ and
‘intelligence’: The current
divergences between
national legal systems and
the need for common
(European) notions
Ce
´line C. Cocq
Universite
´libre de Bruxelles, Belgium; Universite
´de Gene
`ve, Switzerland
Abstract
The European Union (EU) has no powers to dictate to its Member States how to structure their
criminal justice systems. But, it is a very good platform in which actors may think and work
together in order to combat transnational crime by agreeing common legislation and actions.
However, discrepancies remain with regard to definitions of key terms such as ‘information’ and
‘intelligence’ and also the distribution of competences between national authorities. These national
discrepancies – highlighted by the analysis of a sample of EU Member States – lead to diverging
methods and responses which may raise human rights issues and limit cross-border cooperation. A
vertical and horizontal analysis, focusing on the definitions of the two terms provided in the dif-
ferent jurisdictions and on the way in which these definitions are influenced by the distributions of
competences at the national level, calls for a more harmonized voice within the region.
Keywords
Information and intelligence, serious crime, cooperation, EU criminal justice systems, comparative
analysis
Introduction
Since the recent terrorist attacks in Europe, the flow of data has exponentially increased between
European Union (EU) competent national authorities, especially through Europol. Analysis carried
Corresponding author:
Ce
´line C. Cocq, Institute of European Studies, Universite
´Libre de Bruxelles, Avenue Franklin Roosevelt 50, 1050 Bruxelles,
Belgium; Universite
´de Gene
`ve, 1205 Geneva, Switzerland.
Email: celicocq@ulb.ac.be
New Journal of European Criminal Law
2017, Vol. 8(3) 352–373
ªThe Author(s) 2017
Reprints and permissions:
sagepub.co.uk/journalsPermissions.nav
DOI: 10.1177/2032284417723098
njecl.sagepub.com
NJECL
NJECL
out by Europol has even led to breakthroughs in investigations in terrorist cases. Exchanging both
information and intelligence is now clearly recognized to be crucial in preventing and combating
transnational crime.
Gathering, analysing, exchanging and using information and intelligence for criminal justice
purposes are some of the main tasks of law enforcement authorities, which involve, in some cases,
intelligence services. These activities aim to improve the likelihood of success of any prevention
operation and they also increase the competent national authorities’ ability to gather useful data
and high-quality compelling evidence.
1
However, the absence of a clear understanding of the
distribution of competences between competent national authorities and the absence of an inter-
nationally agreed definition of the two key terms, namely ‘information’ and ‘intelligence’, may
limit their activities.
2
Despite continuous important discussions among competent national, regional and international
authorities on the definitions of these two terms and on the diverging distribution of competence
between national authorities, Member States do not seem closer to identifying what ‘information’
and ‘intelligence’ mean.
3
‘Information’ and, more particularly, ‘intelligence’ are very complex
terms to define and are associated with different regimes. Existing definitions have a more or less
wide scope and have been used for different purposes.
4
Each history, legal tradition and language
brings its own particularities and understandings of these terms, which explains why there has been
no agreement as yet.
More particularly, there are many misconceptions about the meaning and application of ‘intel-
ligence’ not only in the general public but also within the law enforcement community. The use of
this term is unable to explain the diverse applications and rules associated with the function of
intelligence communities in different States.
5
The lack of a clear definition and of a legal framework governing the use of one term or another
may be an issue, especially when States aim to improve cooperation when exchanging information
and intelligence.
6
This is even more apposite in the EU, where States are required to harmonize
1. INTERPOL, Environmental Crime Programme, Project LEAF, Assessment of Law Enforcement Capacity Needs to
Tackle Forest Crime, June 2013, p. 7.
2. See, for example, House of Lords, European Union Committee, 5th Report of Session 2004–2005, After Madrid: The
EU’ Response to Terrorism. Report with evidence, HL Paper 53 (London: Authority of the House of Lords, 8 March
2005); K.J. Wheaton and M.T. Beerbower, ‘Towards a New Definition of Intelligence’ Stanford Law & Policy Review
17 (2006), p. 319. Australian Parliament Committee on Law Enforcement, Inquiry into the Gathering and Use of
Criminal Intelligence, Commonwealth of Australia (May 2013): Available at: http://www.aph.gov.au/Parliamentar
y_Business/Committees/Joint/Law_Enforcement/Completed_inquiries/2010-13/criminal_intelligence/report/index
(accessed 6 May 2016).
3. P.F. Walsh, Intelligence and Intelligence Analysis, (Routledge, 2011), p. 1; see also Australian Parliament, para 2.7.
4. H. Born and M. Caparini, eds., Democratic Control of Intelligence Services. Containing Rogue Elephants (Aldershot:
Ashgate, 2013), p. 127.
5. D.L. Carter, Law Enforcement Intelligence. A Guide for State, Local and Tribal Law Enforcement Agencies,U.S.
Department of Justice, Office of Community Oriented Policing Services (Washington: COPS, 2009), p. 10.
6. See, for example, UNODC, Doha Declaration on Integrating Crime Prevention and Criminal Justice into the Wider
United Nations Agenda to Address Social and Economic Challenges and to Promote the Rule of Law at the National and
International Levels, and Public Participation, Thirteenth United Nations Congress on crime Prevention and Criminal
Justice, Doha 12–19 April 2015 and UNODC documents on law enforcement. Available at: https://www.unodc.org/
unodc/en/organized-crime/law-enforcement.html (accessed 1 March 2016); also, European Commission, Communi-
cation from the Commission to the European Parliament, the Council, the European Economic and Social Committee
and the Committee of the Regions. The European Agenda on Security, COM (2015) 185 final, Strasbourg, 28 April 2015.
Cocq 353
To continue reading
Request your trial