Security and Liberty: Restriction by Stealth? (original) (raw)
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Reasserting freedom? Response to the prevent agenda by the UK coalition government
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See also: ftp://ftp.jrc.es/pub/EURdoc/eur20823en.pdf. See also the contributions in Emmanuelle Bribosia & Anne Weyembergh (eds.), Lutte contre le terrorisme et droits fondamentaux, Brussels, Bruylant, 2002, 305p. 2 Institute for Prospective Technological Studies-Joint Research Centre, o.c., 95-96 : "September 11 both accelerated the rate of existing change processes and also created the opportunity for a changed security agenda: a) it brought about a more supportive public mandate for security-In addition to 'real time' information flow analysis and security hardening to increase protection against attack, public reaction also became more supportive of a range of pan-European 'policing' initiatives planned before September 11 in response to pre-existing concerns over threats to security, e.g. the Council of Europe's Cybercrime Convention was signed by EU and G8 countries; the European arrest warrant replaces in 2004 the current system of extradition; Eurojust, set up to assist the coordination , investigation and prosecution of serious cross-border crime and improve judicial cooperation ; and the cross-border Joint Investigation Teams. The willingness to cooperate within the EU and with the US over terrorist finance (including regulation of professionals), extradition and intelligence sharing was facilitated by sympathetic EU reactions to 'September 11'. b) it increased intelligence gathering through ICTs-The changing public discourse towards securitization has also increased the use of surveillance to gather intelligence to forewarn against attacks and continuous threats from traffickers in arms, drugs and people (many of the latter being economic migrants), plus the money laundering that is a routine component of all major crimes involving financial gain. Schemes that seek to generate trust through the application of advanced technologies are being introduced. Increased threat has been used to justify reliance upon ICT-based systems to facilitate data collection and sharing, authentication and identity." 3 Ibid., 9 : "In fact, normal access to many commercial and governmental services is now conditional upon the citizen's providing more comprehensive personal data than would have been the case previously. There can be little doubt therefore that the combined effect of the operational and legislative measures described has been to tip the security/privacy balance in favor of security interests. That they are principally based on the massive application of different technologies leads us to raise the question of how efficient and effective these technologies are in achieving their aims." 4 Gary T. Marx., 'La société de sécurité maximale', Déviance et société, 1988, 147-166. For a discussion of this concept and similar concepts by Michel Foucault, Stanley Cohen and Gilles Deleuze: see Serge Gutwirth, Privacy and the information age, Lanham, Rowman & Littlefield Publ., 2002, 71-78 ("Controlling societies"). 5 "Dans la société de sécurité maximale, il n'y a pas de distinction entre public et privé: nous sommes sous observation permanente, tout est transcrit dans un dossier définitif, et beaucoup de ce que nous disons, faisons et même pensons est connu et enregistré par d'autres que nous ne connaissons pas, que nous le voulions ou non, et même que nous le sachions ou non. On peut grouper et analyser des informations receuillies de régions, d'organismes et d'époques chronologiques trés éloignés les uns des autres. Le contröle préventif est imprégné d'un systþme où les informateurs, les dossiers et la classification prédominent. En même temps qu'elle pénétre comme un laser, la surveillance absorbe comme une éponge. On regroupe et on entend à la société en général la surveillance intensive qui normalement ne s'applique qu' à l'investigation des suspects criminels, des cas d'espionnage ou des prisoniers" (Gary T.
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Sergi, A. (2016) National Security vs Criminal law. Perspectives, Doubts and Concerns on the Criminalisation of Organised Crime in England and Wales, European Journal on Criminal Policy and Research, Online First, DOI 10.1007/s10610-016-9304-3 This paper will interpret and critically analyse the new offence for organised crime in England and Wales (Section 45 of the Serious Crime Act 2015) from a criminological perspective in light of evidence found in research in the country. It will argue that changes in the law relate to changes in political narratives rather than to variations in the criminal panorama of organised crime. It will discuss these changes within three perspectives, which address various levels of concern: a narrative perspective, which reflects on the overlapping of meanings in the use of the words ‘organised crime’; an evolution perspective, which reflects on the origins of the new participation offences with reference to both national and international pressures; a management perspective, which reflects on some of the immediate effects of the new offences of organised crime on the criminal justice system. This paper will conclude that political narratives have indeed influenced criminal policy, while there is no significant change in the phenomenon of organised crime to justify such narratives.
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The European Investigation Order (EIO) seeks to establish a complete system for obtaining evidence in crossborder cases. It represents a further step in the evolution of the mutual recognition agenda and the deepening of criminal cooperation among member states. It has far-reaching implications for individual rights because of its breadth, its application to individuals who are not suspects and the nature of its invasive provisions. Careful justification is required to ensure legitimacy. In analysing this proposal, this paper considers the following aspects: • the place of the EIO within the mutual recognition programme. It looks at judicial cooperation by way of mutual recognition and the common characteristics shared by such measures. It explores the lessons arising from experience with mutual recognition (specifically the European Arrest Warrant, EAW) and the need for mutual trust; and • the scope of the EIO-what is it and what does it replace? The paper investigates the EIO's potential scope and application. It asks whether it is really a measure of judicial cooperation and assesses how the EIO departs from existing measures on mutual recognition. It also asks the question, does the EIO go too far? Furthermore, what are the ramifications for human rights? The paper analyses the sufficiency of the safeguards in the EIO. It explores whether the lessons from the EAW have been learnt, e.g. the need for proportionality and the effect of inconsistency in the implementation of human rights standards. It considers whether the Roadmap for Strengthening Procedural Safeguards will assist and takes into account the views of the EU Agency for Fundamental Rights and the European Data Protection Supervisor. Mutual recognition requires mutual trust, which demands proportionality and fair processes. The EIO overlooks this at its peril. This paper recommends specific protections for the individual, to ensure proportionality and to guarantee the consistent implementation of the EIO in practice, including consistent standards for evidence gathering, data protection law and respect of human rights. The CEPS 'Liberty and Security in Europe' publication series offers the views and critical reflections of CEPS researchers and external collaborators on key policy discussions surrounding the construction of the EU's Area of Freedom, Security and Justice. The series encompasses policy-oriented and interdisciplinary academic studies and commentary about the internal and external implications of Justice and Home Affairs policies inside Europe and elsewhere throughout the world. Unless otherwise indicated, the views expressed are attributable only to the author in a personal capacity and not to any institution with which she is associated. This publication may be reproduced or transmitted in any form for non-profit purposes only and on the condition that the source is fully acknowledged.
Centre for European Legal Studies • 10 West Road • Cambridge CB3 9DZ Telephone: 01223 330093 • Fax: 01223 330055 • http://www.cels.and a member of the group that produced the Corpus Juris Project (1997). He holds a Cambridge LLD. He is also an honorary QC, an Academic Bencher of the Inner Temple and has an honorary degree from the University of Poitiers. Online at http://www.openeurope.org.uk/Content/Documents/PDFs/JHA2014choice.pdf 2 "Sir -The EU Commission's ambitions for a pan-European code of Euro Crimes highlight how Europe should be about co-operation rather than control. We need practical co-operation to fight terrorism, drugs, human trafficking and other cross border crimesnot harmonisation of national criminal laws. We do not wish to subordinate UK authorities to a pan-European Public Prosecutor. We do not want to see British police forces subjected to mandatory demands by European police under the European Investigation Order. We have deep concerns about the operation of the European Arrest Warrant for our citizens. We want the UK Supreme Court to have the last word on UK crime and policing, not the European Court of Justice. The recent study by Open Europe offers a pragmatic alternative. Britain should exercise its "opt out" from 130 measures under the EU's crime and policing plan by 2014. The UK would retain the right to opt back in to any specific policies deemed vital on a case-by-case basis. Yet, as British co-operation with Norway after its recent terrorist attacks and our longstanding intelligence relationship with the US shows, we do not have to cede democratic control with close partners in order to co-operate effectively with them. We should maintain our national standards of justice and democratic control over crime and policingbut let other nations integrate nire closely if they wish.