Week 2 Flashcards
(31 cards)
definition of an investigation
measures defined by law that the police can use to collect evidence
inquisitorial approach on investigation
- powers strictly codified in legislation
- based on legal certainty
- in all systems, procedures must be legally based
who conducts investigations in Germany
- prosecutor is ‘master of investigations’ (160)
- Investigations are carried out by prosecutor + police under the prosecutor’s direction
- prosecutor may order specific actions (163)
- case file is compiled during investigation, then passed to prosecutor who decides on prosecution
who conducts investigations in England
- police is largely independent from prosecution
- Crown Prosecution Service only has advisory role, not supervisory
who conducts investigations in Netherlands
- prosecutors have hierarchical authority over the police
- close coordination btw police and prosecution
- Assistant prosecutor: acts on behalf of the prosecutor during investigation
what are coercive measures
investigative actions involving force or interference with an individual’s will/rights –> heavily rely on suspicion
How does English law assess reasonable suspision?
Dual test
- Subjective: officer must personally suspect the individual of an offence
- Objective: would a reasonable person, knowing the same facts, suspect the same?
!! based only on facts known at the time, NO hindsight
What are the most general safeguards of coercive measures
- Subsidiarity (measure is only allowed if no less intrusive, but equally effective option exists)
- Proportionality (measure must be proportionate to the investigative goal, balancing public interest and individual rights)
what is the role of judicial oversight
- checks if legal requirements are fulfilled
- if measure is proportional
- if suspicion is sufficiently supported by evidence
What is stop & search?
to confirm identity, obtain evidence, ensure public safety, may be the first step towards arrest/detention.
Stop & search in England
STOP
- police officers may stop anyone without suspicion to ask for name, reason for being here, next destination
–> the person may refuse to answer (and this cannot be a reason to search/arrest
SEARCH
- reasonable suspicion needed based on objective facts
- no unlawful discrimination
- may be done by a police officer outside the station if they have reasons to believe they will pose danger, or they may have escape tools/evidence
- public searches need to be short and outer clothing only
- intrusive searches must be done by same sex, in private
Stop & search in Netherlands
STOP
- police can stop a suspect for identification (name, birth, address) ONLY with reasonable suspicion of guilt
- the suspect can refuse to stop/answer but police can use force to stop him
SEARCH
- police can search the clothing of suspect if necessary for identity confirmation ONLY with serious suspicion
Stop & search in Germany
Stop & Search allowed if less intrusive means are impossible
- suspect must be informed of the offence they are suspected of
- may stop someone that is not suspected when identity verification is necessary for investigation, in that case body search is only with the person’s consent
what is search of premises
to obtain & seize evidence or to arrest a suspect
Search of premises in England
- WITH search warrant:
–> issued by magistrate who has reasonable grounds for believing that
–> an indictable offence has been committed
–> there is material on the premises which has likely substantial value
–> evidence must be likely to be admissible at trial
WITHOUT search warrant:
–> entry to arrest or recapture suspects
–> post arrest search of suspect’s own/controlled property if reasonable grounds exist
–> entry/search of premises where suspect was present at/before arrest
CONSENT based search
–> always allowed without warrant if person with authority consent
(premises = buildings, vehicles, place…)
Search of premises in Germany
can search suspect’s AND non-suspect’s premises
NEED WARRANT: issued by a judge (unless imminent danger, then the prosecutor issues) (considered more restrictively in cases of house searches)
requirements:
1. probability that searched person has committed an offence
2. probability that the search will lead to discovery of evidence
3. proportionality (weighing of all facts, no less intrusive means, sufficiently serious offence)
NIGHT searches: must involve an immediate danger OR concern the pursuit of a person caught in the act
RESTRICTIONS
–> initial suspicion based on vague indications.presumption is not sufficient for a house search
–> search cannot be used to establish facts that only lead to the justification of the initial suspicion
–> judge, prosecutor or witness must be present during search
Search of premises in Netherlands
merely entering premises ≠ search
House search with the aim to seize evidence
–> police generally not allowed to conduct house search to seize objects, only prosecutors
–> UNLESS: urgent necessity, then assistant prosecutor does (authorisation granted 3 days later)
Police can seize objects the suspect is carrying
what are biometric evidence of identification
fingerprints, voice recognition, footprints, dental impressions, blood, semen, tissue, DNA
Biometric evidence in Germany
- DNA examinations can be performed on a suspect with judicial order, against will (81)
Biometric evidence in Netherlands
Prosecutor can order DNA test ex officio or by request of the defence
- if suspect refuses: prosecutor can order a compulsory DNA test, but only if serious offence
- may only examine external traits (sex, race…) not internal (diseases) unless it’s the topic of offence
Stored DNA can only be used for future cases, NOT RETROACTIVELY
Biometric evidence in England
intimate samples (blood, semen…)
- require suspect’s consent + senior officer’s authorisation
- must be taken by medical professional
Non-intimate sample (mouth swab, hair…)
- no consent or authorisation needed
RETENTION: if convicted, DNA can be kept indefinitely. depends on seriousness of offence
Electronic surveillance / online searches in Germany
Telecommunication surveillance
- conditions:
1: concrete suspicion of serious offence from 100a
2. particular severity of the individual cas e
3. subsidiarity
4: judicial order required (unless urgency, then approval after 3 days is ok)
- MAX 3 months (renewable)
Online searches
- enables access to all data stored on a device = more intrusive = stricter proportionality/subsidiarity
Electronic surveillance / online searches in Netherlands
Prosecutor may order recording of non-public communications via service providers
- requires warrant by investigative judge
- only for serious offences
- MAX 4 weeks
May obtain communication data (contacts, location)
- does not include content of communication
Recording communications
- serious crime
- judicial warrant
Electronic surveillance / online searches in England
all investigatory powers are authorised by judicial commissionner + reviewed for proportionality & legality
Double lock safeguard: interception warrants must be approved by both secretary of state + judicial commissionner
Grounds for necessity
- national security
- economic wellbeing
- prevention/detection of serious crime
- proportionality test (benefit justifies intrusion)
Scope
- not limited to serious offences
- no requirement of suspicion against specific individuals
- may target non-suspects if justified under necessity/proportionality
