Controlled deliveries and undercover operations: where the line is
A large share of European drug cases are made rather than found. A consignment is detected and allowed to continue under surveillance; an officer or an informant enters the group; a meeting is arranged. All of this is lawful within limits — and the limit is the difference between joining a plan that already existed and creating one that did not.
The controlled delivery
Where a shipment is detected, the authorities may allow it to continue to its destination rather than seizing it, in order to identify the people behind it. The technique is expressly provided for by the 1988 United Nations convention and by the Schengen framework, and it is authorised in advance by the prosecuting authority.
For the defence the questions are procedural and they are worth asking in every such case.
- Was the delivery authorised, by whom, and when? An authorisation given after the fact is not the same thing.
- Was the substance substituted? Where it was, what the person is proved to have handled changes.
- What is the chain of custody between detection, transport and seizure?
- Who arranged the meeting, and on whose initiative?
- Where did the shipment cross a border, and under which state's authorisation?
Undercover officers
European systems permit officers to operate under cover in drug investigations, and shield them from liability for conduct necessary to the operation. Italian law does this through a dedicated statute, and other member states through comparable provisions.
The shield has a shape. It covers participation in an offence already under way; it does not cover instigating one. An officer or an agent who supplies the idea, the buyer, the price or the pressure has stepped from infiltration into provocation, and the European Court of Human Rights held in Teixeira de Castro v. Portugal that a conviction obtained on evidence produced that way breaches the right to a fair trial.
That is a real defence and it is decided on a factual question: who moved first. The record of the contacts, the sequence of the messages, and the identity of the person who first proposed the transaction are what answer it — which is why obtaining the complete exchange rather than extracts matters so much.
Informants and cooperating witnesses
Behind many undercover operations there is an informant, and their position is deliberately obscured: they are not officers, they are frequently themselves under investigation, and they are frequently paid.
| Question | Why it matters | How it is answered |
|---|---|---|
| Who initiated the contact? | The line between infiltration and provocation | Records of the first approach |
| Was the informant an agent of the state? | It determines which rules apply | Their tasking and supervision |
| What did they receive? | It bears on reliability | Payments, and any benefit in their own case |
| Were their contacts recorded? | Gaps in recording are significant | Logs and authorisations |
| Is there corroboration? | Their account alone rarely suffices | Independent of the same source |
The corroboration point is the same one that governs evidence from a co-accused, dealt with in the guide on assisted witnesses: the confirming material has to be genuinely independent, not derived from the informant themselves.
Frequently asked questions
What is a controlled delivery?
Allowing a detected shipment to continue under surveillance instead of seizing it, in order to identify the people behind it. It is authorised in advance by the prosecuting authority.
Can an undercover officer suggest the deal?
No. The protection covers joining an offence already under way, not instigating one. The European Court has held that a conviction built on instigation breaches the right to a fair trial.
How is that proved?
On who moved first. The record of contacts, the sequence of messages and the identity of whoever first proposed the transaction are what answer it.
Can a conviction rest on an informant alone?
Their account requires corroboration, and the confirming material must be genuinely independent rather than derived from the informant themselves.
If an operation of this kind is behind the case
The authorisations, the tasking records and the sequence of first contact are what decide these cases, and they have to be requested. First contact is free and covered by professional privilege.