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Balancing the use of intelligence in criminal investigation and the protection of human rights Illustrate your essay with specific examples.

This paper explores aspects of the English legal system particularly relevant to criminal investigations, and how such investigations are informed by the relevant Human Rights Legislation. This is an area of great controversy. On one hand there is the need to acquire criminal intelligence either to prevent crime being carried out, or to catch the perpetrators of such crime. This must be balanced against certain human rights that are at the centre of what it means to be a free, democratic society; privacy, freedom of expression and association, and the right to independent legal advice and a fair trial. These issues have been put into focus by certain events over the past ten year; the passing into English law of the European Convention on Human Rights, the rise of Islamic terrorism and the 'war on terror', and political debates about the balancing of human rights with questions of national security.


There have been, of course, attempts to portray the need for further, and more wide ranging powers to prevent criminality as part of the 'war on terror'. Article 15 of the European Convention on Human Rights allows for derogations in time of war or other public emergency. What is difficult to reconcile in the war on terror is that no such war actually exists. Criminal acts, even on the most dreadful scale, remain within the ambit of the criminal law, subject what would be termed in the United States 'Due Process'. The difficulty in the size and scope of the threat now facing the UK. Yet, if those principles of freedom and the rule of law that are so entrenched in our society, that date back to the Magna Carte, the Bill of Rights 1688 and the Human Rights Act 1998 are derogated from, then it is assign that the terrorists hold the upper hand; that the freedoms we cherish have been usurped. There is also the fear of the all pervasive state, that of 'Big Brother'. There is no doubt that the use of DNA evidence in criminal intelligence has greatly increased the likelihood of perpetrators of crime being caught. However, there is also widespread anxiety about the creation of a nationwide (or even international ) DNA database. Such a database, containing the DNA of people who have committed crimes, or have had to provide a sample due to being charged with an offence, are obviously an aid to police in their future enquiries. Yet, they allow the investigation of crime to be focussed on such a singular, yet incredibly central issue; is there DNA evidence? At the time of writing there is much concern about the number of people whose names are on the DNA database, and whether the actions of police are sufficiently scrutinised in light of the determination of this government to allow them wider powers..

There is an underlying belief in the English legal system that the courts must remain robust in the defence of human rights. The scope of powers however, are required to  remain on statutory or common law footing, even during periods of war. This was made clear in the aftermath of the case of Liversidge v Anderson. This case concerned the detention of potential Nazi sympathisers during the Second World War. The burden of proof for interning the individuals was significantly less that for equivalent peace time offences. Lord Atkin, in dissenting opinion that is now accepted as reflecting the true position of English law on this matter, stated : 'amid the clash of arms, the laws are not silent'.

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