Laying down the law

ORGANISED CRIME PREVENTION

THE HOME OFFICE HAS PROPOSED SOME DRAMATIC CRIME-BUSTING CHANGES IN ITS WHITE PAPER.

GRANIA LANGDON-DOWN FINDS SPECIALIST LAWYERS ANXIOUS ABOUT MANY ASPECTS OF THE PLANS

Supergrasses, a national witness protection programme, plea bargaining, telephone-tap evidence, harsher sentences, tougher post-release conditions plus a new Serious Organised Crime Agency (SOCA), have been

rolled together in the Home Office's latest package of crime-busting proposals.

Its White Paper - 'One step ahead: a 21st century strategy to defeat organised crime' - says it is crucial that investigators and prosecutors do not shy away from using the full extent of their existing powers, while the new agency and the organisations that it works with must be 'legally audacious' if they are to counter the sophisticated defences of organised criminals.

Monty Raphael, senior partner of niche London-based business fraud law firm Peters & Peters, asks: 'Is this well thought-out criminal justice policy, or just more policy made on the hoof in reaction to the law enforcement imperative of the moment? We have had criminal justice Act after criminal justice Act

with no overarching policy - is this any way to run a developed democracy or is it lurching from one idea to another in the hope things will work out afterwards?'

The White Paper calls for responses by 30 July to its key questions: whether the conspiracy law needs reform and whether there should be a new offence to cover participation in organised criminal conduct; should Serious Fraud Office (SFO)-style powers be extended to compel witnesses to produce documents and answer questions; and how can defence tactics 'simply to frustrate the trial process' be tackled?

It also asks whether there should be new approaches to plea bargaining and turning Queen's evidence, and whether sentences should be longer with additional post-release conditions - for instance, requiring returns showing income, assets and expenditure to be filed every six months for five to 15 years after release.

On the question of turning Queen's evidence, the White Paper says the courts have been open to the idea since R v King (1985) 7 Cr App R (S) 227, when the Court of Appeal suggested sentence reductions of between half to two-thirds, but it is rarely used.

Customs & Excise only had five cases with a total of six defendants turning Queen's evidence in 2003, a fraction of 1% of all defendants and in sharp contrast to the 26% of defendants in US drug-trafficking cases and 10% to 15% of defendants in Australia who had sentences reduced.

Robert Brown, president of the London Criminal Courts Solicitors Association, describes the White Paper as 'another scattergun approach so the government can be seen to be doing something'.

He adds: 'There is nothing new in supergrasses - they have been around since Bertie Smalls and the Wembley bank job in 1972.

Supergrasses may help catch the major criminals but they are dubious sources of evidence because they are, by definition, manipulative, selfish, criminally minded individuals who have the incentive to embellish information and settle old scores.'

He says the issue is tied in with plea bargaining, which used to be common until it 'went off the rails', leading to a critical Court of Appeal decision in R v Turner (1970) 2 WLR 1093.

The White Paper asks for views on a new approach that would allow judges to give an indication of a sentence if someone pleads guilty, although the judge would not give any indication of the sentence if the defendant decided to go for a contested trial.

Mr Brown, a consultant with specialist London-based fraud firm Corker Binning, says: 'The attraction is cases would be speeded up and defendants would get certainty.

But it is about cutting corners, with judges becoming sentencing machines with no real inquiry.

There is no doubt what is behind this - money - and improvements in the conviction rate for much less cost.'

Robin Booth, a partner with London-based white-collar crime specialist firm Burton Copeland, is in favour of plea bargaining.

'So long as it is open, it has the potential for saving unnecessary and very expensive trials.

In the same way, supergrass evidence is important in trying to catch those who commit crime at second and third hand, but it is always fraught with difficulty because of the credibility - sometimes incredibility - of those ending up as witnesses.

However, while it is no panacea, the fact that there are dangers involved doesn't mean it shouldn't be tried.'

Andrew Bevan, a partner in the criminal group at London-based Byrne & Partners, agrees that a review of supergrass evidence and plea bargaining is a good idea.

The caveat with both is that any negotiations are dealt with as openly as possible.

'Recruiting supergrasses is a fairly well-accepted law enforcement technique but there need to be proper protections in place to ensure agencies don't cross the line into entrapment and to ensure there is a proper witness protection programme in place to make sure they are protected if they do come forward.'

For Mr Raphael, one option the Home Office should consider is the US system of 'proffering'.

He says: 'This enables you to go in and say: "My client is a suspect and I would like him to become a witness." You hand over the information and the prosecution may say "there is nothing new in this" or "we don't believe he is telling the truth, and you can have the evidence back without prejudice".

We don't have that kind of safe, negotiating procedure.'

One proposal that concerns lawyers is the White Paper's suggestion that SFO-style powers should be extended so that professionals, such as lawyers, bankers and accountants, can be compelled to provide documents and answer questions or risk facing a criminal charge.

The model the Home Office favours is to put the power in the hands of specialist prosecutors.

Michael O'Kane joined the business fraud group at Peters & Peters two years ago from the Crown Prosecution Service (CPS) headquarters, where he worked on organised crime and high-profile trials, including the Paul Burrell case.

Mr O'Kane, who becomes a partner next month, says: 'The perception is that a lot of really top crime bosses are hiding behind their professional advisers - their accountants and solicitors - and using front companies and off-shore companies to launder the proceeds of their crime, creating layers in the system.

'It is very difficult for law enforcement agencies to get through these layers because they don't have the requisite weapons, so they have to compel the lawyers to come to court and explain themselves.

It has been successful in other jurisdictions but it comes with grave concerns.'

It is a particularly worrying development, he says, given the inroads that are being made into legal professional privilege following the Three Rivers judgment (see [2004] Gazette, 4 March, 1).

'It is going to put professional advisers in a terribly difficult position in their relationship with their clients.

The government would say "to hell with that, you shouldn't have dodgy clients".

But if you defend white- collar crime, it is very difficult not to.'

Mr Brown adds: 'The police already have masses of powers to get information.

I find offensive the implication that if lawyers resist the disclosure of information, it is because we are somehow complicit in the criminal purposes of our clients - we are not.'

Barry Hugill, a spokesman for human rights charity Liberty, says that - on a pragmatic level - extending disclosure powers will simply mean criminals will lie even more to their lawyers.

'I am not sure this isn't just window dressing.

It sounds tough but clearly there has to be a degree of confidence between lawyer and client.

If you detect a note of weary cynicism, it is because this White Paper is driven by the political need to be seen to be acting tough, but that doesn't make good law.'

When it comes to supergrasses, he says Liberty is 'ambivalent'.

He explains: 'But, given it is for the jury to decide on the reliability of their evidence, we wouldn't say it shouldn't be admissible.

However, it clearly has to come with a health warning.

A formal plea bargaining structure is also not such a bad idea, as long as it is monitored very closely.'

The one suggestion that is widely supported is for telephone-tap material to be admissible as evidence.

The White Paper says there must be adequate safeguards to prevent techniques being disclosed to avoid damaging co-operation between the police and security services.

Mr Hugill says: 'It seems obvious to us in this age of great advances in technology that, provided there are reasonable grounds for believing the person being tapped is indulging in nefarious activities, it is quite legitimate policing to intercept mail and phone calls, and to use that material as evidence.

The only proviso is that it must be properly authorised - our preferred option is that it is done by a judge.'

One dissenting voice is Rodney Warren, director of the Criminal Law Solicitors Association and chairman of the Law Society's access to justice committee.

While he accepts that it is worth exploring new approaches to supergrasses and plea bargaining, he is worried about the intrusive nature of telephone tapping.

'However much they say they won't [do it], I am very concerned about the prospect of lawyers' phones being tapped to find out what their clients are saying.'

A review of how telephone,

e-mail and Internet intercepts might be used in court is to be completed in June.

If the government decides to legislate to allow its use as evidence, it is likely to be an important weapon in the hands of the SOCA, which will see the amalgamation of the National Criminal Intelligence Service, the National Crime Squad, the investigative and intelligence work of Customs on serious drug trafficking, and the Home Office's responsibility for tackling people-smuggling.

It will be a powerful agency, accountable to the home secretary, with strategy drawn up by a small board chaired by an independent, part-time person and led by a director-general.

It will work closely with financial and technology experts, while specially trained prosecutors from the CPS and the new Customs & Excise Prosecution Office (CEPO) will be co-located with investigators from the start of a case to sentence.

For Mr Brown, the new agency sounds glamorous but 'is it being sexed up to avoid an otherwise embarrassing climbdown when the government finally gets rid of Customs, given the latest proposals leave it with very little?'

Mr O'Kane says there has been a lot of internecine rivalry and lack of trust between law enforcement agencies, and creating a new national agency could be a good idea 'provided it doesn't become an over-bureaucratic and monolithic structure which lacks the ability to respond quickly'.

He adds: 'However, the way to tackle organised crime is to tackle the financial aspects - tax evasion, tax avoidance, money laundering - in a more cogent way.

That is the route to get the criminal masterminds.'

Mr Booth, former head of the CPS fraud division, says he is 'agnostic' about the SOCA, but remains concerned about whether the collection of overlapping proposals, including the creation of a combined tax authority, has been thought through in relation to each other and in relation to existing organisations, such as the SFO.

He is disappointed that the government appears to be going ahead with plans for the CEPO, rather than transferring Customs prosecutions to the CPS, arguing it would be better for SOCA to deal with just one prosecuting agency.

He is also concerned that embedding specialist prosecutors with the new agency does not replicate the lack of independence that led to so many Customs cases collapsing.

'The costs of bad investigation and prosecution decisions are enormous, yet it is the defence which gets the blame, as if raising issues about the abuse of powers is just a ploy.

But we couldn't raise them unless either investigators or prosecutors or both have behaved incompetently, and too often they have.'

Mr Bevan agrees.

'The White Paper sets out in more explicit ways the powers the government thinks prosecutors should be using.

My concern is that the barrier between lawfully audacious and unlawfully exploitative might be crossed.'

When it comes to reforming the law on conspiracy, Mr Booth says the law is already very wide and indeterminate.

However, he says a new offence of membership of an organised crime gang might have merit if it is specifically and clearly targeted at major criminals.

Mr Bevan sees no harm in reviewing the law on conspiracy but says it will be difficult to define where an organised crime gang begins or ends - 'it's not like a proscribed organisation like the IRA'.

For Mr Warren, his overall concern about the White Paper is that it is anticipating more court proceedings but it does not address the strain this will put on the legal aid budget.

'It is CLSA policy now that every time a new initiative, clampdown or beef-up is announced, we write to the relevant minister and ask for a detailed analysis to be undertaken first to establish what provision has been made for the legal aid costs.

'Organised crime cases are the most expensive and the government must make sure there is additional money to pay for them, or there is the real possibility that, as the legal aid budget is capped, it will mean fewer people in rural areas getting advice on housing or family cases.'

In other words, if the government wants to find the dirty cash, it needs to spend some clean money.

Grania Langdon-Down is a freelance journalist