The Catalysing Effect of Serious Crime on the Use of Surveillance Technologies for Prevention and Investigation Purposes
| Published date | 01 September 2013 |
| DOI | 10.1177/203228441300400307 |
| Date | 01 September 2013 |
| Subject Matter | Article |
256 Intersent ia
THE CATALYSING EFFECT OF SERIOUS
CRIME ON THE USE OF SURVEILLANCE
TECHNOLOGIES FOR PREVENTION AND
INVESTIGATION PURPOSES*1
C C** and F G***
ABSTRACT
is article conduct s a comparative critical study of the develo pment in the use of surveillan ce
technologies for the prevention and investigation of serious cr ime within three selected
national jurisdictions – France, Italy and the United Kingdom. It tests the existence of a
perilous double shi: (a) surveillance technologies introduced in relation to serious cr ime
are increasingly used for the pur pose of preventing and investigating ‘minor’ oences; at the
same time, surveillanc e technologies originally used for public order pu rposes in relation to
minor oences are now increasing ly aected to the prevention and investigation of serious
crime; (b) means at the disposa l of each actor (intelligence and law enforcement agencies) for
the prevention and investigation of seriou s crime are evolving so that the share of tasks and
competences has beco me blurred. Two surveillance technologies are selected a s case studies:
the interception of telecommunication s and video-surve illance. e human right s dimension
– most importantly, the right to privacy and the pr inciple of proportionality, which are at
stake in this context – con stitutes the normative background of the present work.
Keywords: cou nter-terrorism legislation and policies; crim inal procedure; intelligence
services; law enforcement authorities; su rveillance technologies
* is artic le builds upon a deliverable sub mitted to the Europea n Commission in the fr amework of
the FP7 SURVEIL LE Project (www.surveil le.eu). e authors would like to sincerely t hank Anne
Weyembergh for her in-dept h and valuable comments on e arlier dras of t his contribution.
** Junior researcher i n charge of the FP7 SURVEI LLE Project at the Instit ut d’Etudes Européen nes –
Université de Bruxelles.
*** FNRS post-doc toral researcher at the I EE-ULB. e author would lik e to express her appreciation
to the Fonds de la R echerche Scientiqu e (FNRS) for its generous nancial supp ort over the years of
her post-doctora l research at the Institut d’Etude s Européennes (ULB), focusing on ‘L’Un io n
européenne et l a prévention du terro risme: impact su r le droit pénal et redé nition de la relation e ntre
le droit pénal euro péen et les droits pénau x nationaux’.
e Catalysi ng Eect of Serious Cri me on the Use of Surveilla nce
Technologies for Prevention a nd Investigation Pur poses
New Journal of Eur opean Crimina l Law, Vol.4, Issue 3, 2013 257
1. INTRODUCTION
e years following 11September 2001 wit h the 2004 bombings in Madrid, the 2005
attacks in London, the 2011 attacks i n Norway and the 2012 attacks in Toulouse show
profound changes in the terrorism threat and the frig htful emergence of the parallel
phenomena of home-grown terrorism and lone-wolf terrorist actors.1
Such changes have had a tremendous impact on the cri minal justice system as a
whole leading to a progressive vicious shi towards prevention in the ght against
terrorism at the national as wel l as at the EU level.2 e evolving ter rorist threat has
had most importantly a catalysing eect on: t he enactment of new inchoate oences
and the crimi nalisation of preparatory activities3; a nd, the problematic development
of anticipative/proactive crimi nal investigation repositioning the role of the crim inal
justice system in providi ng security as well as the cooperation and d ivision of
responsibilities between law enforcement and i ntelligence.4
In relation to this second dimension, this article will focus on one fu ndamental
change, namely the increa sing use of surveil lance technologies in the ght against
serious crime,5 and especially aga inst terrorism.6 e use of these means is not
challenging a s such but their use must be subject to judicial scrut iny as it is potentially
prejudicial to the right to privac y, which must be balanced against the need for
increased security. In addition the use of the information gathered via surveillance
technologies has to follow a number of criteria a nd should become evidence at tria l
1 Se e EUROPOL, EU Terroris m Situation and Trend Repo rt (TE-SAT) (2012); K.L. achu k et al.,
Homegrown Terrori sm. e reat Within , Center for Technology and Nat ional Secu rity Policy,
National Defense Uni versity (2008); T. Precht, Home grown Terroris m and Islamist Radicali sation
in Europe, Dani sh Ministry of Jus tice (2007).
2 Se e e.g. G. de Kerchove, ‘L’Union européenne et le monde da ns la lutte contre le terrorisme’ in M .
Dony (ed.), La dimension ext erne de l’esp ace de liberté , de sécurité e t de justice au l endemain de
Lisbonne et de Stockholm: un bilan à mi-parcours, Editions de l’ Université de Bruxelles (Bruss els,
2012); M. Donini, ‘Sicure zza e diritto pena le’ (2008) 10 Cass pen 3558.
3 Se e e.g. K. Sugman Stubbs and F. Ga lli, ‘Inchoate oences. e sa nctioning of an act prior to and
irrespect ive of the commi ssion of any harm’ in F. Ga lli and A. Weyemberg h (eds.), EU counter-
terroris m oences: what imp act on national l egislatio n and case law, Edit ions de l’Universit é de
Bruxelles (Br ussels, 2012).
4 Pro active/anticip ative crimi nal investi gations have a prima ry preventive f unction, combine d to
evidence gathe ring for the pur pose of an eventu al prosecution . See e.g. M.F.H. Hir sch Balli n,
Anticipative cr iminal investigations. eo ry and counter-terrori sm practice in the Netherland s and
the United States, TMC Asser Press (e Ha gue, 2012).
5 Yet serious c rime is not dene d as such in EU law (Art icle83(1) TFUE). For the purpose of the
analysis ex amples are hence ta ken from national legislation, mos tly with refere nce to organised
crime and terr orism. Both cat egories are par ticula rly relevant becau se they have lead to t he
introduction of sp ecic legal reg imes for the use of s urveil lance technolog ies withi n the three
countries.
6 Se e e.g. H. Fenwick (ed.), Develo pment in counter-t errorist m easures and u ses of technolo gy,
Routledge (Abingdon, 2012).
Céline Cocq a nd Francesca Gal li
258 Intersent ia
only if gathered with reference to a category of oences and on the basis of specic
rules.
e comparative critical s tudy tests the existence of a perilous double shi ma inly
resulting from the c atalysing eect of serious crime.
Firstly, surveilla nce technologies introduced in relation to serious crimes (e.g.
interception of telecommunications) are increasing ly used for the purpose of
preventing and investigating ‘minor’ oences; at the same time, su rveilla nce
technologies origina lly used for public order purposes in relation to minor oences
(e.g. CCTV cameras) are now increasingly employed for the prevention and
investigation of serious crime. e genera lised deployment and use of sur veillance
technologies witnesse s an increased attention to security to t he detriment of the right
to privacy.
On the one side, serious crime includi ng terrorism has had a cata lysing eect on
the crimina l justice system, prompting an increased use of sur veillance tech niques
and technologies. e subsequent introduct ion of exceptional provisions has been
rst regarded as exceptiona l and limited in scope rst to terrorism and then to
organised crime. However, through a long-lasti ng normalisation process at the
initiative of the legislator, specic measures have become institutiona lised over time
as part of the ordina ry criminal just ice system and they have a tendency to be applied
beyond their origina l scope.7
On the other side, a parallel shi has occu rred in the opposite direc tion. Video
surveilla nce technologies, which are one of the most obvious and widespread sig ns of
the development of surveillance, were originally conceived by t he private sector for
security pur poses. ey have been subsequently employed for public order purposes
and nally in the prevention of minor oences and/or petty crimes (such as street
crimes or small drug dealers), without any signicant change in the level of judicia l
scrutiny and on the basis of a simple administrative authorisation. In such contexts,
they were rather a tool to deter would-be criminals rather than an investigative
means.8 e terrori st threat has become an arg ument to justify an even more extensive
deployment and use of video sur veillance a s well as a broader use of the in formation
gathered for the purposes of invest igation.
e change of scope of both means (interception of communicat ions and video-
surveilla nce technologies) has a detrimental impac t on the competence of the dierent
actors involved as authorising and execut ing authorities, and t he nal use of the
7 O. Gros s, ‘Chaos and rule s’ (2003) 112 Yale Law Journal 1011, 1090; D. Dyzenhaus, ‘e per manence
of the temporar y’ in R.J. Daniels and othe rs (eds.), e securit y of freedom, University of Toronto
Press (Toronto, 2001).
8 E .g. A. Bauer and F. Freynet, Vidé osurveillance et vidéoprotection, PUF (Pa ris, 2008); EFUS ,
Citizens, Cit ies and video sur veillance, Towards a democ ratic and responsib le use of CCTV, ed. EFUS
(Paris, 2010), pp. 183–84; Vidéo- surveil lance Infos , ‘Dispositif de s écurité au sta de de France:
ergonomie et évolutiv ité’ (14October 2011).
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