ABSTRACT
The upsetting of the relationship between judicial supervision and defence participation has been the cause of failures of accountability in several European jurisdictions, notably Holland and Belgium. Changes in the operation of systems of judicial supervision, in the balance of arms and in defence participation are only part of the way ‘new information gathering’ can shift the traditional balance between suspect and state. The adversarial reliance on due process guarantees based on extensive defence rights, and probably traditional views of judicial function as based on the model of trial referee, seems to have cut across extensive pre-trial involvement of judges. Covert or proactive techniques that entail significant intrusions of privacy should always require prior judicial authority. Restrictions may take two forms in relation to covert or proactive policing: of defence rights to pose questions directly to undercover officers or informers and of defence rights to information on the detail of the methods used.
