Advising the Serious Organised Crime Agency: the role of the specialist prosecutors

Journal of Financial Crime

Volumn 12, Issue 3, 2005, Pages 251-263

  Fitzpatrick, David ^a  

^a BarristeratLaw ^*  (Hong Kong)

Author keywords

Criminal justice; United Kingdom

Indexed keywords

EID: 84992996395     PISSN: 13590790     EISSN: 17587239     Source Type: Journal    
DOI: 10.1108/EUM0000000007303     Document Type: Review

References (20)

1. SOCA's anticipated relationship with individual police forces is explained in paragraph 3.3. It is recognised that local forces should be providing the majority of criminal intelligence. NCIS has developed a ‘National Intelligence Model’ which has been adopted by the Association of Chief Police Officers (ACPO), ‘a standard template for the collection and dissemination of intelligence in all 43 forces in England and Wales’.
2. In R v Quinn [1990] Crim LR 581 Lord Lane CJ said, ‘the function of the judge is therefore to protect the fairness of the proceedings, and normally proceedings are fair if a jury hears all the relevant evidence which either side wishes to place before it, but proceedings may become unfair if, for example, one side is allowed to address relevant evidence which, for one reason or another, the other side cannot properly challenge or meet, or where there has been an abuse of process, eg because evidence has been obtained in deliberate breach of procedures laid down in an official code of practice.’ In Quinn identification evidence was obtained in such a way as precluded the usual safeguards to test its reliability, eg an identification parade.
3. An uncomfortable tension exists between thejudicial desire to see informants and those who help the police carry out surveillance protected from retribution and the need to avoid a miscarriage of justice. Guilty or innocent, the accused will allege the informant planted evidence out of animosity, or for gain, or had incited him at the police suggestion, so as to allow the accused the protection ofentrapment as a defence. ‘Allowing a defendant to put forward a tenable case in the best possible light’, R v Agar at p. 323, is not wholly consistent with the warning issued by the Court of Appeal in R v Turner [1995] Cr. App. R 94, ‘to alert judges to the need to scrutinise with great care applications for disclosure of such details about informants. They would need to be astute to see that assertions to the need to know such details were justified because they were essential to running the defence. If they were not so justified the judge would need to adopt a robust approach in declining to order disclosure.'
4. The RIPA/CHIS code says very little about what is permitted activity on behalfofpolice undercover officers and participating informants. The Undercover Operations Code of Practice, the latest editions of which were implemented in 2000, still appear to be the guide to the police and Her Majesty's Customs and Excise. In any event, the code and its predecessor (HO Circular 97/1969) reflect well-established limits described in case law. The editors of Archbold raise doubts as to whether present arrangements are sufficient guidance to meet the concerns expressed about the need for clear statutory safeguards in Teixeira de Castro v Portugal, 28 EHRR 101: see 2004 edn, at para. 15-515.
5. The author has simplified the disclosure tests: the obligation to make primary disclosure is to material ‘which has not been disclosed to the accused and which in the prosecution's opinion might undermine the case for the prosecution against the accused’, s. 3(1) of CPIA 1996. A second stage in the process then follows defence disclosure, to disclose material ‘which might be reasonably expected to assist the accused's defence as disclosed by the defence statement’, s. 7(2). The CJA 2003, when it comes into force, will alter the primary obligation to disclose material which ‘might reasonably be considered to be capable of undermining the case for the prosecution or assisting the case for the accused’.
6. In R v H [2004] 2 WLR 335, the House of Lords held that cases may arise where the appointment of a special advocate or counsel is necessary to represent the defendant's interests in PII hearing, but such appointments should be exceptional. Their Lordships explained the steps a court must proceed through in determining whether material should be protected from disclosure or otherwise. The process is explained in a manner akin to a flow chart. Though it does not appear to have been the intention of their Lordships to change the balancing test for a PII exercise, the language suggests that the level of protection given to sensitive material has been significantly lowered.
7. The Attorney General's Guidelines on the Acceptance of Pleas (No. 44 of 2000) [2001] 1 Cr. App. R 27 suggests that statutory intervention may be necessary to permit a scheme where a plea is ‘bargained’. The prosecution's acceptance of a reduced number of charges, or a plea to a lesser offence, must be explained in open court, the victim's views being taken into account and he or she being advised of the decision and why it was taken. The advocate should not do or say anything which could be construed as expressly or impliedly agreeing to a particular sentence.
8. CPS website: www.cps.gov.uk forawide range ofmaterials including ‘The Code for Crown Prosecutors’ and the extensive ‘Legal Guidance’.
9. Home Office website: www.homeoffice.gov.uk for the codes of practice published pursuant to s. 71 of the Regulation of Investigatory Powers Act 2000.
10. Office of Surveillance Commissioners (OSC) website: www.sur-veillancecommissioners.gov.uk.
11. ‘Regulation of Investigatory Powers Act 2000’ (1): ‘Big Brother. gov.uk: state surveillance in the age of information and rights’, by Yaman Akdeniz, Nick Taylor and Clive Walker [2001] Crim. LR 73.
12. ‘Regulation of Investigatory Powers Act 2000’ (2): ‘Evidential Aspects’, by Peter Mirfield [2001] Crim. LR 91.
13. ‘Redrawing the Boundaries ofEntrapment’, by Andrew Ashworth [2002] Crim LR 161.
14. ‘Telephone Intercepts and Their Admissibility’, by David Ormerod and Simon McKay [2004] Crim. LR 15.
15. ‘Going Round in Circles? Reflections on Fifty Years of Change in Sentencing’, by Martin Wasik [2004] Crim. LR 253.
16. ‘Terrorism and Criminaljustice: Past, Present and Future’, by Clive Walker [2004] Crim. LR311.
17. Criminaljustice Act 2003 (1): ‘Disclosure and its Discontents’, by Mike Redmayne [2004] Crim. LR 441.
18. Serious Fraud: Investigation and Trial, 3rd edn (2003), by David N. Kirk and Tony Woodcock.
19. ‘Undercover sting operations in money laundering cases’, by Dr R. E. Bell, Department of Public Prosecutions for Northern Ireland, writing in a personal capacity, published on the internet, www.iap.nl.com
20. Archbold, Criminal Pleading, Evidence and Practice, 2004: in particu-lar, for (i) the Attorney General's Guidelines on Disclosure of Information in Criminal Proceedings (see Appendix A-243); (ii) the Attorney General's Guidelines on the Acceptance of Pleas (see Appendix A-259); and (iii) Guidance of the Professional Conduct and Complaints Committee for the Preparation of Defence Case Statements, published 24th September, 1997 (see paras 12-99).