Intelligence as Legal Evidence: Comparative Criminal Research into the Viability of the Proposed Dutch Scheme of Shielded Intelligence Witnesses in England and Wales, and Legislative Compliance With Article 6 (3) (d) ECHR

Abstract

At present, a shift in criminal law in both the European Union (EU) and the United States (US), but maybe even around the globe, is noticeable. States find ways to make more extensive use in the criminal procedure of intelligence collected by the intelligence services. The Netherlands has recently adopted an 'Act on shielded witnesses' that enables intelligence officers of the two Dutch intelligence services, AIVD and MIVD, to provide evidence in the pre-trial phase to the examining magistrate. The hearing will be predominantly ex parte and in camera. Both the official report of the intelligence services (Ambtsbericht) and the transcript of the witness testimony provided by an intelligence officer may be adduced as evidence. This paper examines the viability of such a regime of shielded intelligence witnesses under the rules in place in England and Wales, and legislative compliance with fair trial rights as laid down in Article 6 ECHR, in particular the right to confrontation (Article 6 (3) (d) ECHR).

Keywords: intelligence, evidence, ECHR, shielded intelligence witness, anonymous witness, right to confrontation