The use of intelligence information in criminal procedure

Published date01 June 2017
Date01 June 2017
DOI10.1177/2032284417711574
Subject MatterArticles
Article
The use of intelligence
information in criminal
procedure: A challenge to
defence rights in the
European and the Spanish
panorama
Mar Jimeno-Bulnes
University of Burgos, Spain
Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety
1
Abstract
Intelligence information that law-enforcement authorities may present as evidence in criminal
proceedings is a questionable procedure. Intelligence reports are usually preventive and proactive
measures for internal security and their discussion is important, in so far as they may be used as
evidence and may have been acquired before the trial and even the prosecution phase. From the
standpoint of defence rights, the use of such information undoubtedly calls for a review of criminal
procedural principles; the accused and counsel cannot challenge such intelligence reports as the
sources are secret and their introduction in a criminal proceeding circumvents the observance of
the ordinary rules of criminal procedure. Despite the absolute absence of specific guidelines on
national ordinary judicial procedure for the assessment of such intelligence information in Spain, a
practical working arrangement has nevertheless evolved in the field. In this paper, the example of
the Spanish panorama is described and some thoughts are advanced on a potential European
approach. The concept of intelligence, whether such a concept is clearly identified in legal terms at
a European and national level, as well as the practical ramifications of intelligence information used
in criminal procedure with its consequences for the accused are all examined in the paper. The
legal basis for the submission of such evidence both in Spanish legislation and in the judicial practice
Corresponding author:
Mar Jimeno-Bulnes, University of Burgos (Spain) and a non-practicing member of the Bar Association of Burgos, Hospital del
Rey s/n, Burgos, E-09001, Spain.
E-mail: Mjimeno@ubu.es
1. Benjamin Franklin, Pennsylvania Assembly: Reply to the Governor, 11 November 1755. Available at: http://franklin
papers.org (accessed 11 November 2016).
New Journal of European Criminal Law
2017, Vol. 8(2) 171–191
ªThe Author(s) 2017
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DOI: 10.1177/2032284417711574
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of the Spanish Supreme Court are also presented. The challenge is to ensure that the nature of
such sensitive information and its assessment as evidence is at all times compatible with the
observance of fundamental rights and, most especially, the procedural guarantees of the defendant.
Keywords
Intelligence information - criminal procedure – evidence – expertise – European Union strategy -
fundamental rights - defence
SUMMARY: 1: Introduction. 2: The intelligence paradigm at EU level. 3: National framework
and legal regulation: the Spanish perspective. 4: Functioning of intelligence information in Span-
ish criminal procedure according to judicial practice. 5: Concluding remarks.
Introduction
At present, there are no general provisions on the use of intelligence information in criminal
procedure, but it is in fact commonly used as a sort of evidence worldwide, especially in relation
with cases of terrorism. Nevertheless, a fundamental distinction between intelligence information
and evidence must be drawn as their nature and the way they are gathered differ in many respects.
2
Hence, special care must be taken whenever intelligence reports are presented as evidence in
criminal proceedings.
Not only is Spain no exception, but it may be one of the countries where such intelligence
information has been employed most frequently in criminal procedure due to the conflagration of
terrorism; the days of ETA terrorism in the past and nowadays by Islamic Jihadist extremists.
3
Of
course, no regulation on the use of intelligence information is foreseen in Spanish criminal
procedural legislation, despite considerable amendments to the law on criminal procedure, a
legislative act that dates back to 1882.
4
As previously mentioned, intelligence reports are com-
monly accepted in judicial practice by different judges and courts. In fact, this extensive recourse
to intelligence information arises from the global trend towards ‘securitisation’.
5
In brief, this trend
2. See generally K. Roach, ‘The Eroding Distinction between Intelligence and Evidence in Terrorism Investigations’, in
N. McGarrity, A. Lynch and G. Williams, eds., Counter-terrorism and Beyond. The Culture of Law and Justice After 9/
11 (London & New York: Routledge, 2010), pp. 48–68. The author employs the example of a classic Cold War novel
written by Graham Greene, The human factor, in order to qualify intelligence as ‘patchy’ and ‘circumstantial’.
3. For example, J.M. Terradillos Basoco, ‘Terrorismo yihadista y polı´tica criminal del siglo XXI’, Revista Nuevo Foro
Penal 12(87) 2016, pp. 18–59.
4. Criminal Procedure Act (Ley de Enjuiciamiento Criminal, acronym LECrim), enacted by Royal Decree on 14 Sep-
tember 1882. Available at: https://www.boe.es/buscar/act.php?id¼BOE-A-1882-6036 (accessed 3 January 2016). An
English version is available on payment of 3 Euros at Available at: https://tiendaonline.mjusticia.gob.es/Tienda/
mostrarDetallePublicaciones.action?idPublicacion¼10751 (accessed 13 December 2016). Although the year 2016 is
indicated, it is in fact the original law of Royal Decree of 14 September 1882, which underwent a profound reform in
2015 in Organic Law 5/2015 of 27 April, Organic Law 13/2015 of 5 October and Law 41/2015 of 5 October.
5. On the Copenhagen School theory of ‘securitisation’ in international relations, especially on Barry Buzan and Ole
Waever, see M.C. Williams, ‘Words, Images, Enemies: Securitization and International Politics’, International Studies
Quarterly 47(4) 2003, pp. 511–531. A theory of (in)securitization is also argued at EU level; see especially E. Guild
and S. Carrera, ‘Towards an Internal (in)security Strategy for the EU?’, CEPS Policy brief, 12 January 2011. Available
at http://www.ceps.eu/book/towards-internal-insecurity-strategy-eu (accessed 13 December 2016), criticizing the EU
172 New Journal of European Criminal Law 8(2)

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