The Law in Undercover Policing: A Comparative Study of Entrapment and Covert Interviewing in Australia, Canada and Europe

Abstract

This article explores from a comparative perspective some of the legal, evidential and procedural issues raised by undercover policing. It focuses on two of the more common, yet legally problematic, techniques of covert investigation: namely, entrapment and covert interviewing. The comparison draws on legal developments in Australia, Canada and Europe.

Deceptive apparatus: Foucauldian perspectives on law, authorised crime and the rationalities of undercover investigation

“…In this context, the methodology deployed is necessarily determined by the nature of the crime being investigated. It may be in response to a reported or directly observed crime, the result of a series of events with a Maguire and John (1996); Fijnaut and Marx (1995); Bronitt (2004). 17 Ericson and Haggerty (1997).…”

“…41 As a technique, undercover investigations appear to have been professionalised and standardised firstly in the United States, but subsequently extended and effectively exported as policing methods by the Drug Enforcement Agent and the Federal Bureau of Investigation through a global network of foreign offices and international postings that involved 35 Dubber (2005). 36 Robertson (1994); Bronitt (1999Bronitt ( , 2002Bronitt ( , 2004; Roche (2000, 2001). 37 Vidocq (2003); Radzinowicz (1956); Rawlings (2002); Emsley and Shpayer-Makov (2006 Robertson (1994); Sharpe (1996); Fijnaut and Marx (1995).…”

Telecommunications interception in Australia: Recent trends and regulatory prospects

“…Secondly, there is uncertainty as to whether the common law right to a fair trial extends earlier into the investigative and evidence-gathering phase (Bronitt, 2004). Thirdly, it is unclear how the protection afforded by the Commonwealth Constitution to ''due process'' rights will entrench these common law developments.…”

“…1 Legislative developments in this area have reflected the broader trends within the Australian criminal justice system, namely, an increased use of police surveillance and significant expansion of the range of offences that may be targeted for covert investigation (Bronitt, 2004). This shift from ''coercion to deception'' in criminal investigation (Ashworth, 1998) comes at a significant cost to the rights to privacy and due process.…”

“…It is conceivable that formal warrants are only the ''tip of the iceberg'', with the bulk of privacy intrusion by state officials occurring outside the warrant system through use of these consensual monitoring exceptions. 50 From a regulatory perspective, the toleration of consensual monitoring promotes reliance on undercover agents and informers, thereby increasing the risk of both entrapment and other unfair proactive policing measures, such as covert interviewing (Bronitt, 2004;Marx, 1988).…”