Corruption Investigations: Some Legal Issues

1. Corruption Investigations: Some Legal Issues

2. 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

3. 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

4. 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

5. Witness Protection: Extra-Judicial • Witness Protection Programmesi) Ordinary witnessesii) Tainted witnesses • Disclosure issues on nature of “benefits” afforded protected witness

6. 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

7. Witness Protection: Judicial X v United Kingdom (1993) 15 E.H.H.R C.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

8. 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

9. Doorson v Netherlands Held 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

10. 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

11. 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

12. Human Rights • Declaration of Commonwealth Principles • UN Charter • Other International and Regional Instruments

13. 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

14. 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]

15. 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.

16. 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

17. 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.

18. 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.

19. 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.

20. Shaping a test for “Entrapment” • Unexceptional Opportunity • Reasonable Suspicion • Proper Supervision • The “Loosely Test” applies to all covert activity: • UCs as well as TPs

21. 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