Can deceptive police practices be justified when combating organised crime? Does the Crimes (Assumed Identities) Act 2004 maintain an appropriate balance between providing the appropriate tools for crime detection and protecting citizens civil liberties? The use of deceptive practices by Police is not a new phenomenon. Throughout history police have used illegitimate methods in order to investigate or solve a crime.
However the use of police deception in recent years has arisen as a result of common law, with cases such as Swaffield and Pavoc, which have led to the legitimising of certain deceptive conduct by the police. Some examples of the police deception being undertaken include the use of trickery in order to bring about a confession. For example in R v Clark, a make believe gang was created in order to extract a confession by Clark for the murder of a young girl.
Other examples of police deception include lying. Police may fabricate the existence of evidence in order to gain a confession or pressurise the suspect into pleading guilty. The debate on whether police deceptive practices are justified or unacceptable is very divided, with people on one hand arguing in order to convict criminals police deception is necessary with those on the other hand saying it infringes on individual rights and contradicts laws set up in order to protect civil liberties.
An important distinction to make is that we are concerned with the use of police deception in the fight against organised crime not just any petty crime. Therefore what is organised crime? It is very difficult to give a simple definition to this, but it does have many distinguishable features which include it being very serious in nature, it is committed by people who know what they are doing is criminal and is generally run for profit. Can it be justified? Yes, I believe it is an essential part to solving many serious cases and in particular cold cases.
However the use of police deception must attempt to minimise any trespassing on individual rights and the courts and legislation must ensure that when police powers are expanded, that individual rights are considered and held paramount. Through analysis of the Crimes Assumed Identities Act 2004, one can determine whether it does provide this vital balance between providing appropriate methods for crime detection and protecting civil liberties. There are many arguments in favour for the use of police deception, while there are also many arguments against it.
Ashworth explores these arguments in his article, 'Should the police be allowed to use deceptive practices? ' He begins by focusing on lies and how in certain moral circumstances lying can be justified. For example, if someone asks you if you think they are attractive (and clearly they are not), it is better in this situation to lie and say that they are beautiful than to say the obvious hurtful truth. In Ashworth's article he argues that lies in ordinary life 'can only be regarded as wrong if the bad consequences of doing so outweigh the good1'.
Generally, lying has been regarded as wrong and the courts have supported this view through doctrines which make lying illegal in certain contexts. For example misrepresentation in contract law and theft by deception are both illegal wrongs. So why has police deception been allowed to develop into legitimate police practices when it involves lying? The paramount reason for this is in its proven success at solving serious cold cases. For example in the case of R v Clarke, a six year old child was murdered and the culprit was never found.
Two decades after this murder police re opened the case and through the use of a covert operation, obtained from their suspect a confession to the murder of Bonnie Clarke. The operation by the undercover police involved the use of deceptive tactics which included fake acts of crime and pressurising the suspect by creating fabricated statements in order to illicit a confession2. Now some may argue that these types of actions by the police are wrong as they may result in false confessions and ultimately wrongful convictions.
However the courts have put safeguards in place to insure that evidence obtained through the use of deception is accurate and not prejudicial to the accused. For example in relation to confessional statements made by a suspect to authorities when it is unbeknown to the suspect that he is actually confessing to the police, the court must consider the voluntariness of the confession or statement, the reliability of the confession or statement and whether there is an unfair forensic advantage to the prosecution in admiting such evidence3.
These rules are set out in the lead case of Swaffield and Pavic. There are certain arguments in favour of police deception which I would not agree with. For example in Ashworth's article, some arguments in favour of police deception included the idea that it is justified as criminals constantly lie to the police4. This is a weak argument as police are the upholders of justice and lowering themselves to standards of criminals is immoral and contradictory. Another argument Ashworth raised is that police deception lowers the rights of criminals and therefore is justified.
However this is again a flawed argument as the acts of police deception generally take part during the investigation of the crime, at a time when the suspect has yet to be found guilty and should be presumed innocent. There were some arguments argued by Ashworth which did have some substance to them. For example he argued the integrity principle, where 'it is morally incongruous for the state to flout constitutional rights and at the same time demand that its citizens observe the law5'.
This is a fair argument but it ignores the fact that the deceptive practices are being controlled as opposed from recklessly wielded. In R v Clarke the accused right to silence was removed only temporarily, when he confessed to the "boss" that he had committed the murder. However immediately following this confession, the accused was taken into custody where he was read his rights which included the right to silence.
There are also two distinguishing factors which make the use of police deception appropriate when fighting organised crime; the seriousness of the offence and the difficulty of obtaining evidence. Organised crime is serious in nature and creates problems for the police in obtaining evidence. Deceptive practices enable the police to fight serious crimes which, without such methods, would remain unsolved or would simply continue to occur. Therefore the benefits toward the community and victims of crime outweigh the small infringement on the rights of the individual.