Corruption Investigations: Some Legal Issues

Covert Investigations: Interception of Communications

Intercept Product may be for intelligence, evidence or both

Various models of regulation Benefits/Challenges of live

monitoring LPP Disclosure issues

Covert Investigations: Undercover Agents and Accomplices

Deployment of UC Agent usually requires judicial or administrative authorisation

UC Agent’s methodology should preserve admissibility of evidence

Corroboration is highly desirable

Witness Protection

Extra-judicial and Judicial Basic principle: to minimise trauma

and preserve the quality of their evidence, vulnerable witnesses should be protected whilst seeking to ensure the measures adopted do not deprive the defendant of his right to a fair trial

Witness Protection: Extra-Judicial

Witness Protection Programmesi) Ordinary witnesses

ii) Tainted witnesses

Disclosure issues on nature of “benefits” afforded protected witness

Witness Protection: Judicial Issues:

a) Does the witness need protection? b) Can measures be taken to protect the witness while preserving the fair trial rights of the accused?

Use of Screensa) Child witnessesb) Adult witnesses

Video conferencing Anonymous witnesses

Witness Protection: Judicial

X v United Kingdom (1993) 15 E.H.H.RC.D. 113 [Witness screened from Everyone except Judge and Counsel]Held fair trial rights not breached as: Was no restriction on XXN Was not the only basis of the judgment Only interference with right to public

hearing was exclusion from sight

Witness Protection: Judicial

Doorson v Netherlands (1996) 22 E.H.H.R 33[Identity of 2 witnesses withheld from the defence. Defendant was drug dealer]Held there were sufficient safeguards to counterbalance defence handicaps as: Anonymous witnesses were questioned in

presence of Counsel by Magistrate who new their identity

Magistrate gave basis on which he assessed the reliability of their evidence

Doorson v NetherlandsHeld cont’d Counsel was present and could ask any

question that might lead to identification of witnesses

While it is accepted a conviction should not be solely or mainly based on such evidence, that was not the situation in the instant case

Evidence obtained under conditions where the rights of the defence under the ECHR cannot be secured in usual ways should be treated with extreme care

Taking Witness Statements from Co-operating Defendants

Defendant has been convicted and Sentenced

Defendant convicted but not sentenced

Defendant neither convicted nor sentenced

Requests for Immunity Cautioned Statements

The Charging Decision Often based on multiple inputs e.g. anti-

corruption investigative units, immigration, customs, organised crime units, FIU’s etc.

Best charges and cases flow from early broad based investigative and prosecutorial collaboration within boundaries of domestic law

Corruption offences or General offences? Be careful to avoid overloaded/duplicitous

indictment Alternative/Lesser Charges

Human Rights

Declaration of Commonwealth Principles

UN Charter Other International and

Regional Instruments

Restrictive Rights

IHRL permits States to restrict or limit certain rights to allow for public order/safety. However, such limitations must be:

Lawful Necessary Proportionate

Relevant Rights engaged

Right to privacy/family life [Article 17 ICCPR, Article 27 African Charter refers to family within the context of society as a whole]

Right to a fair trial [See, e.g., Art 7 of the African Charter and Art 6 of the ECHR]

Right to Private/Personal Life A ‘qualified’ right. Must be a basis in domestic law for the

breach, and that law must be clear and accessible.

Must be necessary (in a democratic society)

Must be a reasonable relationship of proportionality between the breach (e.g. covert means) used and the legitimate aim pursued. There must also be adequate and effective safeguards against the abuse of such methods.

Right to a Fair Trial See, e.g, Art 7 of the African Charter and

Art 6 of the ECHR An absolute or restrictive right? Equality of arms An impartial tribunal The opportunity to mount a ‘full’ and

robust defence Disclosure by the prosecution/Handling

sensitive information

ENTRAPMENT: R v LOOSELY - Attorney General’s Ref. No 3 of 2000

Principle in R v Sang confirmed: entrapment is no defence in English law.

The court has a jurisdiction to stay proceedings as an abuse of process and a discretion to exclude evidence.

R v LOOSELY cont’d...

However, a stay will usually be the most appropriate remedy in response to entrapment. In arguing entrapment, it is not being said that admission of the evidence will render the trial unfair; rather that it is unfair to try the defendant. A stay is appropriate because to continue the prosecution would be “an affront to the public conscience”, not because the defendant is not guilty of the offence or could not receive a fair trial.

R v LOOSELY cont’d...

Although an application to stay was the appropriate response to alleged entrapment, in limited circumstances a subsequent application to exclude evidence is not precluded.

Shaping a test for “Entrapment”

Unexceptional Opportunity Reasonable Suspicion Proper Supervision The “Loosely Test” applies to

all covert activity: UCs as well as TPs

Conclusion

Investigative agencies should work as closely together as possible

As far as laws allow, the prosecutor should guide investigations from as early as possible

The human rights of the suspect should be protected and balanced against the wider public interests of societal protection and prevention of crime