Front
line defending in cases involving covert policing tactics
etc
The
Human Rights Act 1998 incorporates the European Convention
of Human Rights into our domestic law. The police, the CPS,
Customs, the Courts are all ‘public bodies’ and
as such it is unlawful for them to act in a way which is incompatible
with a citizen’s human rights (s6 HRA 1998). Thus all
our clients have human rights issues at stake.
-our clients’ right to a fair trial (Article 6),
- the right to privacy (Article 8) and
- the right to liberty (Article 5), are the three most relevant
examples.
These
issues often rise to the surface in the larger cases that
we handle. That has never been truer than it is now with the
recent introduction of the Criminal Procedure Rules and large
tracts of the Criminal Justice Act 2003 (from 4th April 2005).
The Act has introduced the possibility of a second trial after
acquittal in some serious cases; amendments to the disclosure
regime, wholesale changes to the law on hearsay and the use
of character evidence and radical overhauls to sentencing,
release and recall. The Rules place heavy demands on both
sides to identify all the issues early on and start working
towards a trial date immediately. For this firm, with our
resources and our experience in human rights and higher court
litigation, this early identification of issues is not a problem.
The key is pro-active defence preparation at all stages –
not just a last minute rush immediately before trial.
For
lawyers in this field it is a paradox that the years
since the introduction of the Human Rights Act 1998
have seen Parliament passing more and more Draconian
powers to the Courts, e.g. the new confiscation and
Civil Recovery regimes
under the Proceeds
of Crime Act and the increased use of extended
and life sentences.
We
have risen to the challenges as they have come along and are
constantly tackling new and novel areas of law and testing
them against the 1998 Act. In a recent supergrass case that
we were involved in the Court ordered the disclosure of the
transcripts of the informant’s telephone calls from
prison. The case against our client (first on the indictment)
was eventually withdrawn before the jury were sworn.
Tackling
Covert Policing Evidence
The firm has developed a particular expertise in this area.
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 Convention (right to privacy). The statue is called the
Regulation of Investigatory Powers Act 2000. At Rahman Ravelli
RIPA, the Codes of Practice under RIPA, the Police Act 1997
and other material relating to covert policing is part of
our every day staple diet.
The
Act itself provides for 3 different types of surveillance;
Directed
surveillance
This is the traditional type of surveillance – the trailing
of a suspect by a number of observation officers.
Intrusive
Surveillance
This involves interference with property, e.g. placing a bug
or tracking device in a car.
The
covert human intelligence source
This is an informant – this may be an undercover police
officer or maybe criminal in league with the police.
See Informant Evidence-
strategy and tactics
Is
the Surveillance Lawful?
All such surveillance must be authorised and each type must
be justified. In our view, given the demands that the Human
Rights Act places of the State and its agents it is important,
in almost all cases, for the Crown to demonstrate that the
surveillance was lawful. In many cases the Crown can easily
meet that challenge – in others they may wish to conceal
important material from the defence. We have been involved
in cases where a police officer has taken on undercover role
(notably in a large-scale car-ringing allegations and a conspiracy
to murder where the officer was pretending to be a ‘hit-man’).
In those sorts of cases the issue of entrapment
may arise.
Abuse
of Process and Public interest Immunity
Careful disclosure of the defence case may produce enough
ammunition to launch an abuse
of process application. It is cases like this where disclosure
and Public Interest Immunity (PII) will often be a battleground
for the parties. This is one area that causes Defendants a
great deal of concern and it is our speciality. In the field
of disclosure and PII applications our experience is unparalleled,
our leading case of R
v H established the law in this area in the House of Lords
in February 2004.
When
faced with covert surveillance material there may be much
in the way of observations or transcripts and telephone records
which the Crown have not revealed because it does not support
their case. Such material may however assist the defence case
and it is now vital that a carefully prepared Defence Statement
is drafted at an early stage setting out any reasons for fuller
disclosure – as long as the material is not deemed sensitive
or irrelevant the defence will get sight of the material.
There are certain tactful and strategic actions which the
Defence should take.
At Rahman Ravelli our starting point when faced with applications
for PII from the Crown is to demand ‘why’?. We
will often ask to make representations to the Court in advance
of any private hearing the Crown may be granted with the Judge
to discuss what to disclose to the defence. This puts all
on notice that the practice and principals established in
the R
v H case must be followed to the letter. Where appropriate
we will argue for disclosure, or at least partial disclosure
of the material the Crown wish to keep secret – these
hearings can be vital to the defence and success may turn
on the preparation of the defence case at the early stages.
The
principles that underlie all our case work preparation, plus
our particular expertise in this field, means that we can
assemble for our clients the best possible team to tackle
the issues arising from an arrest following a covert surveillance
operation. (see Pro-active
Defending)
Drugs
Traffiking Offences
The
above issues typically arise in cases involving the large
scale distribution, importation and /or supply of controlled
drugs. Our experience of defending successfully cases of this
type is unparralled.
Inextricably
linked to these types of cases are Confiscation and assets
forfeiture proceedings. See Assets
Forfeiture
Customs
Cases
The
issues will often arise in cases dealing with contraband cigarettes,
alcohol and other products. See Serious Fraud and Corporate
Defence also.
The
issues also typically arise in the following cases;
Serious Robberries , Terrorism…etc
Rahman Ravelli Solicitors Ltd (Company Registration No.6295702) are leading Criminal Defence Lawyers regulated by the Solicitors Regulation Authority. We are Solicitors specialising in the defence of Serious Fraud, Serious and Complex Crime and Asset Forfeiture (including SOCA (Serious and Organised Crime Agency) Civil Recovery), Nationwide. We are Specialist Panel Members (Fraud and VHCC) able to undertake the most Complex of cases.
