Intelligence as Evidence
It’s an old debate; Should intelligence gathered by a civilian intelligence agency be used as evidence in court for prosecution?
I can tell you from my experience as an intelligence officer for nearly two decades, that this issue has been visited, discussed, re visited and discussed again. Police organizations are designed to put criminals in jail, and in order to do this they need to prove in court, beyond a reasonable doubt that the accused is guilty of the crime they are being tried for. In the case of a civilian intelligence agency, with no police powers, they are looking to investigate national security issues in order to gather information to process into intelligence to provide guidance to government. The goal of a successful prosecution in court is not a consideration.
The question is one of “suspicion” vs “belief”. “Proactive” vs “Reactive”. In the case of the Canadian Security Intelligence Service Act, the catalyst for an investigation into individuals and groups that pose a threat to national security begins with a suspicion. That’s right, the fact that an individual or group is suspected of being involved in threats to national security is starting point for the investigation. This is a very different threshold than “belief”. This latitude is necessary to ensure the nimbleness and agility that is required of national security investigations. Being aware that an individual is planning to provide secrets to a foreign nation state or that a group is planning to travel for the purpose of committing an ideologically motivated act of violence is sufficient to begin that investigation. It is proactive in nature as to gather information in order to prevent the event from occurring. This can result in a proactive measure to disrupt the activity, or further monitoring of the individuals involved. Additionally, the sharing intelligence information with other nations, who are part of an international agreement, may be used to prevent similar actions from taking place outside of the nation which is investigating the individual or group.
The requirement for an investigation into a police matter is one of belief. A higher threshold to ensure that the rights of individuals are not trampled on, simply because information has come to light that an individual or group is may or may not be involved in a criminal act. If a criminal act has taken place, evidence can be gathered to be used in court to prosecute the accused. The investigation is in reaction to the crime.
Intelligence sources are not typically required to give testimony in court, as this would be counter to the clandestine nature of source recruitment and handling. Think of how many sources of national security investigations would be willing to sit in the witness stand, knowing that they would be vulnerable to repercussions of the community, state, or organization which they have been providing information against.
Conversely, many police informants or confidential informants (CI’s) are required to sign documentation requiring them to provide evidence in court. This again goes back to the goal of the police organization to acquire a successful prosecution against the accused.
There have been instances where an intelligence investigation by a civilian intelligence agency has resulted in a successful prosecution, by a police organization, of individuals involved in national threat related activities that were also criminal acts. But both the civilian intelligence agency and the police force must be cautious of the information that is being provided. Typically, intelligence collected cannot be provided as it is considered fruit of the poison tree. Or information that is collected and may be based on hearsay or other methods that do not hold up to the scrutiny of the level of belief that a crime was about to take place. When a defence lawyer becomes aware that evidence was collected by the police force, based on suspicion and not belief, it can result in the entire investigation being questionable and against the rights of the accused.
There are no easy answers in providing intelligence information to police organizations for the purpose of further investigation, which can appear extremely frustrating to both the intelligence agency and the police organization. But as with most legal precedence continued attempts on both sides to come up with a solution, will eventually lead to one.
