ABSTRACT

This chapter discusses the effects of the development of proactive and covert policing on judicial role(s) in England and Wales and the Netherlands. It explains the term ‘judges’ to indicate professional judges rather than all those who perform the function of judging within criminal justice systems. The chapter examines the continental practice of not referring to prosecutors as ‘judges’ but regarding them as ‘magistrates’ and as part of the ‘judiciary’ where they are recruited and trained within the continental career judiciary system. Given institutional traditions in England and Wales and the Netherlands several forms of judicial regulation of proactive or covert policing are easily imaginable within the criminal process itself. In England and Wales, significant use of prior judicial authority would require profound institutional change. The implications for judicial roles may be more radical for adversarial systems. The chapter suggests that there are means available for a calibrated judicial control of covert and proactive policing.