White collar crime: Getting in on the act

ON 2 October this year, the European Convention of Human Rights was adopted into UK law as the Human Rights Act 1998. Suddenly, if newspaper hysteria is to be believed, everybody convicted of a crime could now get out of jail by claiming that their human rights have been breached.

Railtrack is planning to use it to challenge the threat of a £40m fine following the Hatfield rail tragedy; couples are trying to use it to allow them to select certain genetic traits in their children; and even Rosemary West, accomplice to notorious serial killer Fred West, is planning to use it to get her conviction overturned. But is there a real threat that the Human Rights Act is going to undermine the power of the courts, and will this affect convictions on the grounds of fraud?

While the actual document behind the act is a lengthy tome, there are really only two sections that have major implications in fraud cases. These are Article 6, the right to a fair trial and, less importantly, Article 8, the right to respect for private and family life.

Within Article 6, the section that is causing the most concern is the one which states that all trials must take place within a “reasonable time”. Fraud cases can take a long period of time to reach their climax in court. Often, it takes years.

Stephen Gentle, a partner at Kingsley Napley, is working on a case that highlights the situation. He says: “The investigations started in 1996. The client was charged in the summer of 1998, and it looks like the trial will not take place before September of next year. So that's five years between beginning the investigation and the date of the trial, about events which took place two years before that.” It is this delay that some are seeing as their ticket to freedom. Asil Nadir, perpetrator of the Polly Peck scandal, has been living in self-imposed exile in Cyprus for the last seven years. He now claims that, under the new act, because of this delay, the charges against him should be dropped because he stands no chance of receiving a fair trial.

But with the drawn-out nature of fraud cases, Nadir's is going to be one of a series queueing up to use the act to their advantage. Gentle says: “You can see that it's bound to be a fertile area. But having said that, if you can get a case to trail in under five years in Italy, you're doing well. I think that delay will be a big area.”

Rosalind Wright knows all about the issues behind delay. As director of the Serious Fraud Office (SFO), she knows that almost all investigations are lengthy operations. Often, this can be drawn out further by other factors. It is not unusual for evidence to be in a foreign country, where it is difficult to obtain. Sometimes defendants can hold up investigations either intentionally or due to such misfortunes as ill-health. Wright explains: “I'm particularly concerned, because first our cases take so long to investigate, and second they take so long to try. This is a factor that I'm sure will become an issue.”

For the SFO, however, a new issue has been thrown up surrounding the act. In September, the European Court of Human Rights (ECHR) ruled that three of the men convicted of fraud during the Guinness affair had received an unfair trial. Anthony Parnes, Jack Lyons, Gerald Ronson and Ernest Saunders were all convicted with evidence obtained under compulsion.

Compulsion orders allow investigators to obtain information from those who have confidentiality agreements with their clients, without them breaching any codes of conduct. It also allows investigators to ask those under investigation questions which must be answered. However, this provides a certain problem. If this evidence is incriminating, it could then be used in a criminal court to convict the defendant. This is a contravention of the act and, as has been found in cases brought before the ECHR, trials decided this way are unfair. Article 6 restores the privilege of defendants not to incriminate themselves, and any information gained by compulsion is not admissible.

Charles Flint QC of Blackstone Chambers explains: “The effect of Article 6 is to increase the rights of a defendant. It means the prosecution has to comply with the privilege against self-incrimination applied by the ECHR in the Saunders and Ronson cases.”

So while the evidence of past cases may be brought into doubt, it is future cases where Flint sees most queries of this nature being raised. He says: “What one is looking forward to is the impact the act may have on future trials, and in particular future fraud cases.”

But this is nothing new. As a signatory the European Convention of Human Rights, the UK legal profession was obliged to take heed of these rules anyway; the only difference was that it was not formalised in UK law, and any doubts had to be raised in Strasbourg. Section 58 of the Youth and Criminal Evidence Act, and Section 2 of the Criminal Justice Act prevented this kind of evidence being used in court long before there was any mention of the Human Rights Act.

George Staple, partner at Clifford Chance and former director of the SFO, explains: “If somebody has answered questions under these coercive powers, then they may have been forced to incriminate themself, and those incriminating answers may not be used as evidence against them. I don't think these are significant new issues that haven't already been anticipated in our criminal justice system. You could get cases struck out long before the Human Rights Act came on the statute book. Delay was an abuse of process and you could ask the court to stay the trial.”

So while the media has hyped the introduction of the Human Rights Act, in reality the move is more one of focus rather than quantitative change.

For Wright at the SFO, it is business as usual. While rumours in the press suggest that the SFO has hurriedly been trying to finish investigations before the act came into power, the true practicalities of such action are impossible. Wright says: “Human rights is nothing new. We've been operating under a similar system for years at the SFO. There's been no mad rush whatsoever. You simply can't rush [investigations] madly, and it would be quite wrong to suggest that we ever did.”

But the SFO aren't taking any chances, and all staff are thoroughly trained in the provisions of the new act. But even when it comes to the matter of delay, Wright is confident that there is little to worry about. “The word 'reasonable' is not laid down in stone; there's no particular length of time which is said to be reasonable or unreasonable,” she says.

There are some areas, however, which will be brought into question. First, Section 8, the right to privacy. Prior to the act, there was no legal right to privacy in the UK. Now that there is, any investigations which are deemed to have breached that right will be seriously brought into question. Also, the nature of the very charges brought against defendants could be a cause for confusion.

Wright says: “There's been a suggestion by the Law Commission that such charges we use – for example conspiracy to defraud and fraudulent trading – might be so imprecise as to be too vague. Within the framework of the Human Rights Act, you may need more specificity.”

For those convicted, or those facing conviction, the act seems like a gift from heaven, the answer to all their prayers. For those who practise the law, however, it would seem that they are more than prepared. It has quietly been practised for years. But, ultimately, it is not the criminal fraternity that the act was created to protect.

As Rosalind Wright says: “Victims have rights, too.”