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Informal Transnational Police-To-Police Information Sharing: Its Structure and Reform Michael Robert Walton

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Informal Transnational Police-To-Police Information Sharing: Its Structure and Reform Michael Robert Walton Osgoode Hall Law School of York University Osgoode Digital Commons LLM Theses Theses and Dissertations 2014 Informal Transnational Police-to-Police Information Sharing: Its Structure and Reform Michael Robert Walton Follow this and additional works at: http://digitalcommons.osgoode.yorku.ca/llm Part of the Human Rights Law Commons, and the International Law Commons Recommended Citation Walton, Michael Robert, "Informal Transnational Police-to-Police Information Sharing: Its Structure and Reform" (2014). LLM Theses. 2. http://digitalcommons.osgoode.yorku.ca/llm/2 This Thesis is brought to you for free and open access by the Theses and Dissertations at Osgoode Digital Commons. It has been accepted for inclusion in LLM Theses by an authorized administrator of Osgoode Digital Commons. INFORMAL TRANSNATIONAL POLICE-TO-POLICE INFORMATION SHARING: ITS STRUCTURE AND REFORM MICHAEL WALTON A THESIS SUBMITTED TO THE FACULTY OF GRADUATE STUDIES IN PARTIAL FULFILMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF LAW GRADUATE PROGRAM IN LAW YORK UNIVERSITY, TORONTO, ONTARIO April 2014 © Michael Walton, 2014 abstract This thesis examines the informal sharing of information and cooperation between police agencies across international borders, and how it is or should be informed by international human rights law. The author looks at how intelligence-led policing theory has affected transnational policing. A distinction is made between police actions made on domestic soil that have adverse consequences abroad and police actions made on foreign soil that have adverse consequences. The first category of cases is firmly within jurisdiction and covered by domestic and international legal obligations. The second category of cases introduces the concept of the extraterritorial application of international human rights instruments. The theory is illustrated by the case studies of the Bali Nine and of Maher Arar. Finally the author suggests methods of best practice for transnational information sharing and suggests that all government agencies should follow these rules. – ii – Acknowledgements • Lionel Murphy Foundation • Osgoode o Margaret Beare o James Sheptycki o Craig Scott o Liora Salter o Osgoode Hall Law School Librarians • UNSW o David Brown o Sandra Egger o George Williams o Jill Hunter • NSW Council for Civil Liberties • Catherine Hume, Head of Library and Archive, Commonwealth Secretariat Library • John Hann – iii – Table of Contents ABSTRACT ............................................................................................................................................... II ACKNOWLEDGEMENTS ........................................................................................................................... III 1 INTRODUCTION ...............................................................................................................................1 2 INFORMAL TRANSNATIONAL INFORMATION SHARING IN LAW ENFORCEMENT ................................5 2.1 PRELIMINARY DEFINITIONS .......................................................................................................................... 5 2.2 THE LEGITIMATE NEED TO SHARE INFORMATION ............................................................................................... 7 2.3 INFORMAL INFORMATION-SHARING MECHANISMS .......................................................................................... 9 2.4 INTELLIGENCE-LED POLICING ...................................................................................................................... 39 2.5 LIMITING COOPERATION ........................................................................................................................... 42 3 INFORMAL TRANSNATIONAL POLICING: CASE STUDIES .................................................................. 45 3.1 INFORMATION SHARING BETWEEN AFP AND INP: THE ‘BALI NINE’ ................................................................... 46 3.2 INFORMATION SHARING BETWEEN RCMP AND US AUTHORITIES: MAHER ARAR ................................................. 49 4 LEGAL OBLIGATIONS AFFECTING INFORMATION SHARING ............................................................. 56 4.1 DOMESTIC OBLIGATIONS .......................................................................................................................... 57 4.2 INTERNATIONAL OBLIGATIONS ................................................................................................................... 62 5 EXTRATERRITORIAL HUMAN RIGHTS OBLIGATIONS ........................................................................ 76 5.1 EXTRATERRITORIAL JURISDICTION UNDER PUBLIC INTERNATIONAL LAW ............................................................... 78 5.2 EXTRATERRITORIAL JURISDICTION UNDER INTERNATIONAL HUMAN RIGHTS LAW ................................................... 84 5.3 EUROPEAN COURT OF HUMAN RIGHTS........................................................................................................ 99 5.4 INTER-AMERICAN COMMISSION ON HUMAN RIGHTS ................................................................................... 136 5.5 OTHER DOMESTIC COURTS ...................................................................................................................... 137 5.6 AUSTRALIAN PRACTICE ........................................................................................................................... 146 5.7 CANADIAN JURISPRUDENCE ..................................................................................................................... 148 5.8 SOME FINAL COMMENTS ......................................................................................................................... 154 6 BEST PRACTICE: INFORMAL INFORMATION SHARING ................................................................... 157 6.1 POLICE CULTURE AND HUMAN RIGHTS ....................................................................................................... 157 6.2 REQUEST ASSESSMENT ............................................................................................................................ 162 6.3 CONTENT ASSESSMENT ........................................................................................................................... 170 6.4 CONTENT CONTROL: CAVEATS .................................................................................................................. 175 – iv – 6.5 WRITTEN COOPERATION AGREEMENTS ....................................................................................................... 179 6.6 DEALING WITH EXCEPTIONS ..................................................................................................................... 180 6.7 IMPLEMENTATION ................................................................................................................................. 185 6.8 CENTRALISATION OF DECISION MAKING: INTERNAL OVERSIGHT ........................................................................ 186 6.9 THE NEED FOR EXTERNAL OVERSIGHT ......................................................................................................... 187 6.10 AUSTRALIA-SPECIFIC REQUIREMENTS .................................................................................................... 188 7 SOME FINAL REMARKS FOR FURTHER RESEARCH ......................................................................... 191 8 BIBLIOGRAPHY ............................................................................................................................ 193 8.1 CASES ................................................................................................................................................. 193 8.2 LEGISLATION, REGULATIONS AND OTHER INSTRUMENTS ................................................................................ 196 8.3 UN CONVENTIONS, TREATIES AND OTHER DOCUMENTS ................................................................................ 197 8.4 ARTICLES AND BOOKS ............................................................................................................................ 203 8.5 INQUIRY REPORTS ................................................................................................................................. 211 8.6 GOVERNMENT AND PARLIAMENTARY INQUIRIES & HANSARD ........................................................................ 213 8.7 SPEECHES AND MEDIA RELEASES ............................................................................................................... 215 8.8 PRESS AND OTHER MEDIA REPORTS ........................................................................................................... 217 8.9 GOVERNMENT AND OTHER REPORTS ......................................................................................................... 219 8.10 WEBSITE MATERIAL .......................................................................................................................... 220 APPENDICES ......................................................................................................................................... 222 APPENDIX 1: INTERNATIONAL COUNTER-TERRORISM INSTRUMENTS ......................................................................... 222 APPENDIX 2: AFP PRACTICAL GUIDE ON INTERNATIONAL POLICE TO POLICE ASSISTANCE IN DEATH PENALTY CHARGE SITUATIONS ..................................................................................................................................................
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