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Informant Evidence: Tactics and Strategy

4 March 2005

What is an informer?

A pedestrian who calls 999 after witnessing a crime is an 'informant' in that he or she is informing the police about a crime. That person may become a witness and there might be factual disputes about what the informant saw, but there can be no attack on the motives of the witness in assisting the police. Then there is the paid informant - this is altogether a different animal. The paid informant will be registered and have a police handler and will periodically provide intelligence to the police for reward. This sort of person is unlikely to become a witness in a trial. The prosecution would never reveal the identity of their informant, even if it were somehow relevant to the defence case. However, if this type of informer were to come out of the shadows and testify in Court then their credibility as a witness of truth would certainly be an issue - assuming the evidence was disputed by the accused. This is when tactical defending counts. Material relating to the credibility of the informer can be demanded, e.g. de-briefing notes, first accounts, meetings with officers etc. If there were any suggestion that the informer would expect reward for testifying then that would have to be disclosed to the defence; R v Smith (unrep.) 29th July 2004, para. 17. This might not be enough to exclude the informant's evidence from the trial, but it would help establish the informant's unreliability in the eyes of the jury.

The Supergrass

There is no particular definition for determining when a 'grass' becomes a 'supergrass'. The only difference in reality is that a supergrass will be responsible for putting a number of defendants in the dock by providing information from the inside - i.e. by admitting to involvement in crime and testifying against his former associates.

Arguably the supergrass is the most unreliable of all the categories of informer. Wherever the truth lies the informer knows he has crossed a line. It becomes in his interests to ensure that those in the dock are convicted - he becomes a man with a motive, he knows he will not be sentenced until the defendants in the dock have had their trial. If they are acquitted then that could affect the way the Judge views him. Again if the evidence is disputed then credibility will be in issue and attacks on the motive and the character of the supergrass can be made - though under the provisions of the new Criminal Justice Act 2003 the defence must be astute to the fact that notice of such tactics must be given, and justified, at a very early stage of the proceedings (s100). The defence should be entitled to, and be demanding, early disclosure of formal records of the authorities' dealings with the supergrass. If the supergrass is himself in prison then this will include his prison records as that material can assist the defence, e.g. in showing visits from police officers etc, see R v McCartney, Hamlett & Ors, (unrep.) CA 2003. In a recent drugs supergrass case that the authors of this article were defending in the extent of this type of disclosure was found by the trial Judge to include transcripts of the telephone calls made by the supergrass from prison. This in turn showed remarks made by the supergrass suggesting police involvement in special visiting arrangements and proposed temporary prison leave. Evidence of potential inducement or reward can provide powerful cross-examination material, or even a platform for an argument to exclude the supergrass evidence. The prosecution however must be reminded at the earliest possible stage that they have a duty to retain this sort of material.

Yet another category of informer is the participating informant. We covered this topic in last month's article on entrapment. An undercover police officer, or a criminal used by the police to get close to suspects, can provide very valuable material to the police.

But again the Court's recognise that the temptation for those involved to cross the line and 'create an offence' is very real. The argument's on entrapment are different and may be less to do with the witnesses motive and more to do with whether the police operation was lawful under the Regulation of Investigatory Procedures Act 2000 (RIPA).

RIPA

Since the enactment of the Human Rights Act 1998 the State has had to place on a statutory footing all methods of police surveillance - this is a requirement of Article 8 of the European Convention of Human Rights (right to privacy). Basically any surveillance must be authorised by a senior officer. To get authorisation the surveillance must be necessary and proportionate and kept under review. Participating or tasked informants are classified in RIPA as 'covert human intelligence sources'. These may be police officers acting under-cover or criminals acting in union with the police to extract information from suspects. RIPA is meant to protect suspects from some of the excesses of the past. In 2003 the European Court found a violation of the right to a fair trial where a suspect had exercised his right to make no comment in interview only to have a police informant deliberately placed in his cell who then badgered damaging comments out of the suspect. That 'evidence' was then used to convict him; Allan v UK (2003) 36 EHRR 12. The Court of Appeal subsequently quashed the conviction. This is an example of the fact that informer evidence, whilst appealing to the police at face value can, in reality, present the prosecution with just as many difficulties as the defence.

D-DAY FOR DEFENCE

On 4th April 2005 a raft of provisions of the new Criminal Justice Act 2003 came into force along with most of the new Criminal Procedure Rules. As touched upon in earlier articles these provisions mark a revolution in criminal procedure, evidence and sentencing. Here are some of the new provisions that came into force on 4th April:

  • Increased prosecution right to appeal bail decisions
  • Possibility of a re-trial after acquittal
  • New life sentences for 'dangerous offenders' convicted of certain violent or sexual offences (one strike and your out!)
  • Magistrates jurisdiction increased (from 6 months to 65 weeks)
  • The effective abolition of the rule against hearsay evidence
  • The new disclosure regime, including 'updated defence statements'
  • Pleas and Case Management Hearings in the Crown Court.
  • Bearing in mind all these changes it is imperative that defence teams are proactively engaged in early trial preparation and case building.

The firm specialises in defending large prosecutions where complex issues are at stake- If your case involves a large scale police operation and any of the matters discussed in both of these articles is an issue then do not hesitate to contact Aziz Rahman Partner and head of the serious crime unit at Rahman Ravelli.

Authors

Jonathan Lennon is a Barrister specialising in criminal defence and Prison Law at 23 Essex Street Chambers in London. He is co-editor of the Prison Law Reports.

Aziz Rahman is a Solicitor - Advocate and Partner at the leading Criminal Defence firm Rahman Ravelli Solicitors, specialising in Human Rights, Financial Crime and Large Scale Conspiracies/Serious crime. Rahman Ravelli are members of the Specialist Fraud Panel.


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