Edited by Monica den Boer
Chapter 7: Undercover policing - a legal-comparative perspective
Undercover policing has become more mainstream throughout the years, and builds on the philosophy of pre-emption. It may be regarded as a field of policing that covers a variety of tactics used for the prevention of crime and disorder. However, the purpose of undercover policing may vary between jurisdictions: a commonplace tactic of choice in one jurisdiction may be highly exceptional or even unlawful in another. Discretion, disguise and deceit are the three strategic options for undercover policing. Focusing on deceit, it is observed that individuals who are the subject of undercover policing cannot exercise their informed autonomy. Several jurisdictions have adopted legal regulation of undercover policing, but a public policy debate remains mostly absent. Taking into account a wide variety of cases and examples from all many different countries, the author discusses the regulation of undercover policing from the perspective of three models, namely the negative liberty model, the positive authority model, and the exemption from liability model. Undercover policing is embedded in a strongly evolving landscape, marked by a dynamic interaction between national and international legal norms.
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