The use of intelligence information in criminal procedure: a challenge to defence rights in the European and the Spanish panorama

Abstract

Intelligence information that law-enforcement authorities may present as evidence in criminal proceedings is a questionable procedure. Intelligence reports are usually preventive and proactive measures for internal security and their discussion is important, in so far as they may be used as evidence and may have been acquired before the trial and even the prosecution phase. From the standpoint of defence rights, the use of such information undoubtedly calls for a review of criminal procedural principles; the accused and counsel cannot challenge such intelligence reports as the sources are secret and their introduction in a criminal proceeding circumvents the observance of the ordinary rules of criminal procedure. Despite the absolute absence of specific guidelines on national ordinary judicial procedure for the assessment of such intelligence information in Spain, a practical working arrangement has nevertheless evolved in the field. In this paper, the example of the Spanish panorama is described and some thoughts are advanced on a potential European approach. The concept of intelligence, whether such a concept is clearly identified in legal terms at a European and national level, as well as the practical ramifications of intelligence information used in criminal procedure with its consequences for the accused are all examined in the paper. The legal basis for the submission of such evidence both in Spanish legislation and in the judicial practice of the Spanish Supreme Court are also presented. The challenge is to ensure that the nature of such sensitive information and its assessment as evidence is at all times compatible with the observance of fundamental rights and, most especially, the procedural guarantees of the defendant.