Secret audio recordings etc. obtained through infiltration could be ...

Case no. 106/2023
Order made on 14 May 2024

The Prosecution Service
vs.
T

On 4 November 2016, Louise Borglit was stabbed to death in Elverparken in Herlev. The police suspected T of the murder. In 2020, T was serving an eight-year prison sentence for another crime. In order to clear up the suspicion regarding the murder of Louise Borglit, the police and the Prosecution Service decided to place a police officer, “Frank”, in the same wing as T in Enner Mark Prison.

Conversations between T and Frank, which took place in the period from 30 October 2020 to 21 November 2020, were recorded using a covert listening device carried by Frank, and T’s and Frank’s cells were bugged until at least 22 November 2020. Also, one of T and Frank’s exercises in the prison was video recorded. Furthermore, T’s cell in Nørre Snede Prison was bugged and video surveilled as was the visiting room where Frank visited T on several occasions in the period from 8 December 2021 to 30 March 2022.

The issue in the interlocutory appeal was whether the recordings and the police officer Frank’s statement could be used as evidence in the criminal case.

The Supreme Court ruled that infiltration such as in this case could be performed under the general investigative powers that the police have, and that a general requirement of objectivity and proportionality therefore applied to this investigative measure.

When assessing whether using Frank as an infiltrator was an objective and proportionate investigative measure, regard had to be had to the fact that this was an intensive form of infiltration which was aimed at a suspect who was imprisoned, concerned a crime that had already been committed and had the aim of befriending T to get him to divulge information and thereby incriminate himself. However, the Supreme Court also had to consider the extremely serious nature of the investigated crime and the information concerning the suspicion against T and that other investigative avenues had been exhausted.

Based on an overall assessment of the case, the Supreme Court held that the police’s and the Prosecution Service’s decision to infiltrate T was objective and proportionate. The Supreme Court also stated that the infiltration had been sufficiently controlled.

According to the European Court of Human Rights’ case law, secret surveillance and recording of private individuals for the purpose of an investigation carried out with the cooperation and technical support of public investigating authorities constitutes an interference with the exercise of the targeted person’s private life under Article 8(1) of the Human Rights Convention. To comply with the ECHR, such measure must, among other things, be in accordance with the law, cf. Article 8(2). The Danish Administration of Justice Act does not regulate in detail whether the police are authorised to record conversations in which the infiltrator himself participates as part of the infiltration.

The Supreme Court held that the legality requirement in Article 8(2) ECHR had not been met with regard to the recordings made by the police officer Frank wearing a covert listening device in a prison as part of the investigation of T.

According to the European Court of Human Rights’ case law, Article 6 ECHR on the right to a fair trial does not generally preclude the use of evidence obtained in violation of national law or the use of evidence obtained in violation of the ECHR. What matters is whether the national procedure is reasonable based on an overall assessment that includes the nature and gravity of the violated right, and whether the rights of the defence were respected, including whether the defence is able to challenge and contradict the evidence and to produce further evidence. It also includes whether the evidence is reliable, including whether the circumstances under which the evidence was obtained puts its value or accuracy into question. The importance of the evidence is also a factor, as the assessment must also determine whether the evidence is the only or conclusive evidence. Finally, a balance must be struck between the public interest in the investigation and prosecution of the offence and the accused’s interest in the evidence being obtained lawfully.

Referring to the reasons stated by the High Court, the Supreme Court agreed that the fact that the legality requirement in Article 8(2) ECHR had not been fulfilled did not in itself prevent recordings from covert listening devices from being used as evidence in a criminal case.

Whether T’s right to remain silent and not to incriminate himself had been infringed depended on an assessment of the conversations between him and the police officer Frank.

With regard to the conversations, regard had to be had to the facts that T himself brought up the murder in Elverparken several times in the conversations, and that he took charge of many of the conversations, while Frank mostly listened or asked general conversational questions about what T was telling him. However, the Supreme Court stated that during some of the conversations there were moments where they, seen in isolation, had features comparable to an interrogation, because Frank steered the conversation and repeatedly said, among other things, that T’s previous statements about the murder could not be true.

The Supreme Court stated that the conversations between T and the police officer Frank were voluntary without T being subjected to undue pressure to get him to talk to Frank about the murder being investigated.

As stated by the High Court, there was no doubt as to the authenticity of the audio recordings, and T had been given the opportunity to challenge the use of the recordings in the case, and he would be free to argue in the District Court against the evidence having evidential value in the determination of guilt. The Prosecution Service had stated that it also relied on other evidence in the case.

Based on an overall assessment of the circumstances of the case, the Supreme Court agreed with the High Court that it would not be contrary to the right to a fair trial under Article 6(1) ECHR to allow the Prosecution Service to use all of the video and audio recordings and the police officer Frank’s statement as evidence in the case. In the above-mentioned circumstances, T’s due process rights had not been violated to such a degree that the recordings and statement could not be used as evidence.

Against this background, the Supreme Court, like the High Court, held that the video and audio recordings played before the District Court and the police officer’s statement could be admitted as evidence in the case.