There is also the argument that deception is an abuse of police power. Ashworth remarked that justifying the use of lies and deception by police 'should require an even higher standard of proof6'. The standard of proof is higher. The courts have enforced rules and requirements that the prosecution must satisfy when relying on evidence which has been obtained through deception. For example the courts have many avenues to assess whether the evidence is fair or whether the accused rights have been violated.
The courts have the involuntary confession discretion, the evidence more prejudicial than probative discretion, the public policy discretion and the unfairness discretion7. The courts can utilise these provisions to ensure the accused is treated fairly. For example, under the involuntary confession discretion, the court may exclude evidence if it believes the accused will was overborne. The community must also be considered when justifying the use of police deception. Organised crime, such as drug trafficking, directly affects our community.
Therefore the removal of some of the accused rights can be justified when it is for the benefit of the wider community. Lucy Martinez argues this in her article 'Confessions and Admissions to Undercover Police Agents', where she submits that the courts 'must be vigilant in resisting the tendency to disproportionately favour the rights of the accused over the rights of the community as a whole8'. Consideration will now be given to the Crimes (Assumed Identities) Act 2004 in order to determine whether it apples a fair balance between detecting crime and protecting the rights of individuals.
The Crimes (Assumed Identities) Act 2004 was released in Victoria, among with other legislation, to target the rising problem of organised crime. There were a number of acts which triggered this reaction by the government but some of the more significant reasons were the spate of unsolved gangland murders which were taken place and more significantly the spate of Police shootings in Victoria which included officers Silk and Miller in August 1998.
The above act was released in order to assist police in the investigation of such crimes and to combat the problem, as described by Chris Corns in his article, Combating Organised Crime in Victoria: Old Problems and New Solutions, of 'the extreme difficulty for the police in gathering relevant evidence9'. It appears from analysis of the Crimes (Assumed Identities) Act that it does provide the appropriate balance between crime detection and the protection of civil liberties.
The act does allow for a member of the police force to acquire and use an assumed identity. This would allow a police officer to assume a fake identity which obviously involves deception. Thus allowing for an officer to investigate a crime without giving the suspect the rights he would normally be entitled too, for example the right to silence. However there are measures put in place to ensure that the requirement of the assumed identity is necessary for the investigation of the particular crime and to insure that abuse of the assumed identity power does occur.
For example under S2 of the Act, the application for an assumed identity must be both approved by the chief officer and the reasons for the application must be given10. Furthermore under S2, the chief officer must be satisfied on reasonable grounds that the assumed identity is necessary for the purposes of the investigation and that the risk of abuse of the assumed identity by the authorised officer is minimal11. Further safeguards put in place to insure that the use of assumed identities is not abused is the requirement under S9 that each assumed identity granted is reviewed yearly or at least once every 12 months.
The purpose of this is to determine whether the use of assumed identities is still necessary and the reasons for this must be recorded in writing12. Under S20 of the Assumed identities Act, an authorised person who commits an offence while under the guise of an assumed identity can be protected against criminal prosecution13. One may argue that this entitles a police officer to commit a number of criminal offences, which may trespass on individual rights, with the knowledge that they will be indemnified from any legal against them.
However this is counteracted by S29 which makes it an illegal offence for an authorised officer or civilian to intentionally, knowingly or recklessly use the assumed identity not in accordance with their authority or in the course of their duty14. The act is effective against the fight against organised crime as it enables the use of assumed identities which may be pivotal to the success of solving and preventing serious crimes. It also overcomes the barriers which arise when investigating crimes which expand over multiple jurisdictions.
S 24 and 25 enable recognition of the act in other jurisdictions, which allows for the exchanging of criminal intelligence with other states. The act is also cross jurisdictional which enables officers to apply for an assumed identity that will be applied in another state. This assists in the fight against organised crime as it means that states can work together to fight crime. It also keeps a check on police by allowing for an effective investigation into police corruption to take place.
For example, if a Victorian officer was being investigated, a member from another state could investigate the Victorian officer without approval from the Victorian commissioner. Thus the act allows for appropriate measure to detect crime, while limiting acts or offences which may hinder the rights of individuals. It appears that police deception is a vital tool in the fight against organised crime. The Crimes Assumed Identities Act 2004, provides a fair balance between allowing the police to use deception in order to investigate crime, while providing measures to insure that the hindrance of citizens individual rights is kept to a minimum.
The current law in Australia provides this appropriate balance. However it must not be enhanced further for risk of outweighing the balance in favour of crime detection against the protection of individual rights. The courts and legislators must insure that the fear expressed by Corns, in his article Combating Organised Crime in Victoria, does not eventuate. The fear being that 'the new legislative environment relating to organised crime in Victoria is likely to expand further with more undermining of basic civil liberties15'. As it stands the balance is evenly weighted.