Human Rights and Fair Trials

Investigators have repeatedly been asked whether it is included in their ‘instructions’ that they should remove any rubbish sacks they might stumble across. Needless to say the response has always been in the negative. However, what about the advice one normally receives from a lawyer?… It is usually extremely detailed.

I would therefore suggest that, if they consider this to be a lawful practice, lawyers would specifically instruct a given investigator to perform this intelligence-gathering action (particularly when you consider all of the privacy laws that can seriously impact on the investigation of crime).

Indeed, this issue has become so central to the discussions on identity theft that the Information Commissioner has recently called for a research paper specifically designed to examine the impact of the privacy laws on crime investigations. Further, the Fraud Advisory Panel is currently in the final stages of commissioning a survey into the effect the privacy laws have on the investigation and prosecution of fraud and money laundering.

Given the nature of today’s ‘privacy minefield’, I would fully expect lawyers to ensure they are crossing all of the Ts and dotting all of the Is. For one cynical moment, though, might I suggest that they recognise how effective a means of gathering information this is and are prepared – by distancing themselves from the investigator – to let him or her decide their own method of satisfying the client’s needs?

In my 30 years’ experience gained in the corporate investigations world I have – on numerous, even scores of occasions – heard the comment: “Chris. We don’t really care how you obtain this information. Just make sure you do, OK?”

The admissibility of evidence

If such methods have in fact been employed to gather information, what are you going to do with it? If you stumbled across a discarded bank statement showing that an individual has £15,000 in his or her account, one assumes you would serve a garnishee on both the individual and the bank.

The information gathered is not necessarily going to be presented as evidence in the subsequent case. What it does do is allow the astute lawyer to find another way of verifying that information, and then apply the appropriate remedies afforded by law.

It is common knowledge in the investigations business that it is much easier to check on something than it is to find something out. Therefore, you might be placed in a situation wherein the investigator wasn’t caught appropriating the rubbish. It turned out to be extremely valuable and, as a result of accessing the information, you were able to subpoena documents, garnishee accounts and track down shareholdings, etc. It is also more than fair to surmise that the investigator who perpetrated this act is unlikely to be called into Court and told to give evidence.

In criminal cases, wherever evidence is wrongly obtained, the Court would have to examine whether or not this fact adversely affected the fairness of the proceedings. If it did, then the evidence would have to be excluded

Assuming that we are talking about a civil action here, at some stage you are going to have to disclose the information you possess under the disclosure rulings. One assumes you are not going to disclose the fact that you tasked an investigator with stealing the defendant’s rubbish! One also assumes that, once the defendant’s lawyers see the evidence you have in your possession, they are going to expect you have done just that!

If they have any sense, those lawyers will exercise their client’s right – under the Data Protection Act 1991 – to see what information has been accessed through various databases such as Experian and Equifax.

One also assumes that the investigator has accessed both of these sites as the first step in the process because it is the easy thing to do. The defending lawyer now holds details of the investigator who handled the case, and one assumes that he will make an access request to him or her as to what information they do hold.

In their report to the lawyer’s client, one also assumes that the investigator has detailed the information they have obtained, or alternatively tried to disguise this in some way.

Remember… the defence lawyer has all of the weapons of civil law (eg subpoenas and injunctions) close to hand.

I will leave it up to you, the readers of Security Management Today, to decide what the chances are of the defence team being able to ascertain that the information was gathered as a result of an initial – and, possibly, unlawful – act of stealing someone’s rubbish. For the sake of this discussion, though, let’s say that they were able to demonstrate it and how, once in Court, they may question the validity of any evidence being presented against their client.

Case law: proof positive?

There are numerous case laws focusing on the admissibility of evidence, most of them prior to the privacy laws.

The whole question surrounding Article 6 of the Human Rights Act is now carrying far more weight than was initially the case when first mooted. Whether we like it or not, the privacy laws are beginning to bite. We ignore them at our peril

The most recent case law relates to Mrs Jean Jones versus The University of Warwick, heard in the Court of Appeal on 4 February 2003. The leading judgement was handed down by Lord Woolf, whom I am sure all of you would acknowledge is someone pretty high up the ‘food chain’ when it comes to legal authority.

Briefly, the case went something like this… Mrs Jones dropped a cash box on her hand, which resulted in a cut between her fingers. She then claimed a total of £135,000 from the University. An enquiry agent acting for the University’s insurers tricked her way (on two separate occasions) into Mrs Jones’ home and obtained covert video of her activities.

Subsequently, this evidence was presented in the initial case to defend Mrs Jones’ personal injury claim.

It was alleged – and agreed – that the investigator had committed a trespass, and that the evidence had been obtained unlawfully. Everyone involved concurred here.

The issue the Courts had to address was whether or not such unlawful evidence could be admitted. In the first instance, the Judge in the High Court said ‘No’. Now, whether or not he realised that this matter needed to proceed to a higher Court in order for a precedent to be set is debatable. Anyhow, the case came to the attention of Lord Woolf.

Lord Woolf and his fellow Law Lords considered a number of points, but that which is thought to be essential in our discussion is the following… In criminal cases, wherever evidence is wrongly obtained, the Court would have to examine whether or not this fact adversely affected the fairness of the proceedings. If it did, then the evidence would have to be excluded. In civil cases, the Court would need to balance two competing interests. The first is to ensure that evidence is not obtained unlawfully. The second is to ensure that the case is decided fairly, and that the material evidence is not excluded.

In this particular case, a number of other issues were also taken into account. Lord Woolf decided that the conduct of the insurers had not been so outrageous that the evidence ought to be excluded. He balanced this with the argument that, if it had been excluded, fresh medical experts would have to be instructed by each party, and the relevant evidence would be concealed from them – possibly leading to a wrong diagnosis.

Lord Woolf allowed the evidence to stand. However, he duly expressed his concern at the methods employed to gather this evidence. As a means of discouragement and censure of the behaviour of the insurers, he ordered that the University, in spite of the fact that it had won the appeal, would have to pay costs.

In civil cases, the Court would need to balance two competing interests. The first is to ensure that evidence is not obtained unlawfully. The second is to ensure the case is decided fairly, and that the material evidence is not excluded

Once the case returned to the High Court, Lord Woolf also recommended that the trial Judge should consider the possibility of refusing the University recovery of its costs from Mrs Jones. He also went on to state – in no uncertain terms – that he did not wish this judgement to afford reassurances that litigants could obtain evidence illegally and expect it to be admissible.

Breaching the Human Rights Act

The basis of the entire argument laid before Lord Woolf was that this was a breach of Article 6 of the Human Rights Act: ‘a person is entitled to a fair trial’. The argument suggested that information was gathered in breach of the Human Rights Act, and therefore Mrs Jones was not receiving a fair hearing.

What is interesting to note is that the arguments which could have been afforded by the Data Protection Act 1998 were not put forward. If they had, would Lord Woolf’s judgement have been the same?

Unfortunately, I have not yet been given the opportunity to put this question to Lord Woolf in person. However, I have discussed it at great length with other Data Protection Act specialists and the general opinion is ‘Yes, the judgement could well have been different’.

Dare I go so far as to suggest that Lord Woolf may not have admitted the evidence?

Let me say it once again… Out of his inadequate budget, the Information Commissioner has instigated a study into the impact of the privacy laws on the investigation of crime. The Fraud Advisory Panel has spent five years discussing and gathering together sufficient budget to instigate a survey into the impact of the privacy laws on the investigation and prosecution of fraud.

Both organisations are not going to waste valuable financial resources and precious time on something that isn’t worthwhile. You are either very brave – or extremely foolish – if you choose to ignore the concerns they now consistently express.