Rights come home to roost

The Human Rights Act will force lawyers to re-evaluate a defendant's rights. Jonathan Ashley-Norman reports.

One of the few certainties in the run-up to the implementation of the Human Rights Act is that the life of the prosecution counsel in fraud cases will be yet more taxing. Another is that legal arguments will not be any shorter.

Whether acting as a prosecution or defence counsel fraud lawyers must pay close attention to several important concepts enshrined in the Human Rights Act, particularly equality of arms, the defendant's rights in custody, and the reverse burden of proof which can be imposed on alleged fraudsters.

All play an important function in the concept of fairness which lies at the core of domestic law. Evidence can be excluded if it has an adverse effect on the fairness of proceedings. Trials can be halted as an abuse of process if it is unfair to try a defendant or if a defendant cannot receive a fair trial. Similarly fairness is enshrined in the European Convention on Human Rights, particularly in Article 6 which establishes the right to a fair trial. There is consequently considerable overlap in principle between domestic law and convention law (insofar as that distinction remains available).

However, fairness has many facets. The convention provides new rights, or new ways of looking at old rights. The defence lawyer must recognise those rights and be imaginative in his dealings with the various manifestations of officialdom to ensure their enforcement.

Prosecutors must beware that in convention law, it is the state's duty to ensure compliance with convention obligations. Prosecutors must be alert not only to the defence, but also to their brother civil servants, including the court and self-regulating organisations, who by their actions may be compromising a defendant's convention right and jeopardising a trial.

Equality of arms

A fair trial under the convention demands equality of arms. This means that each party must be afforded a reasonable opportunity to present their case, including their evidence, under conditions that do not place them at a substantial disadvantage vis-a-vis their opponent (see the classic fraud case Dombo Beheer v Netherlands and Article 6(3)(d)). The criminal defendant's opponent is the State. The State must ensure the criminal defendant is not at a substantial disadvantage against itself in terms of resources.

It failed to do so in a recent fraud case conducted by Howard Godfrey QC, R v Whitcombe & ors. The defendant was a chartered accountant and insolvency practitioner, accused of offences arising out of his conduct in the liquidation of various companies. At substantial expense, the Crown had instructed a major firm of accountants to conduct an expert analysis of the complex transactions involved.

The defence team sought legal aid to fund the instruction of a similar firm to act on its behalf. The Legal Aid Board Area Committee awarded less than half of the funds requested. An application for legal aid to fund the judicial review of the Area Committee decision was refused and it was not possible for the defence to instruct a comparable firm to that instructed by the Crown.

The indictment was stayed as an abuse of process of the court because of this inequality of arms. The judge was satisfied the inequality amounted to an abuse of process in domestic terms. The convention side of the same coin will grow in significance in future legal arguments.

The prosecution foundered as a result of the decision made by the Area Committee, a decision quite beyond its control.

Interesting questions arise. Should the Crown have sought to support in some way the defence application for appropriate funding (if it was aware it was being sought)? Would there have been inequality of arms if the Crown had employed a high street accountant? Is it prudent for the prosecution to employ the most expensive experts if there is a danger the defence will not be able to do likewise? Would different considerations apply if the defendant was privately funded?

The fraud defendant in custody

Article 6(3)(b) guarantees the defendant adequate time and facilities for the preparation of their defence, but operational measures taken by the prison service may deprive the defendant of that right.

Some prisons are understandably reluctant to permit lever arch files or any stationary with metal pieces to be brought onto their premises.

Prisons also suffer from pressures of space. Ensuring the fraud defendant who is in custody pending trial has ready access to often large documents can be a headache. Ensuring that access is in an environment conducive to study and careful thought is another. An ill-lit cell may not suffice. These logistical problems have potential legal ramifications if a defendant is deprived of his convention rights as a result.

Problems can also arise when fraud trials are run by computer, with case documents scanned onto disc or CD-Rom and substantial schedules created on computer. A tension is created between the defendant's entitlement to facilities for the preparation of his defence, and the legitimate prison concern that defendants do not have unfettered access to computers.

The legal visits regime may also compromise a defendant's right to adequate time and facilities. Defence lawyers can spend many hours arranging a meeting to have only a few hours of conference in prison. This problem may be compounded by any difficulties in accessing the necessary papers while in conference.

Abuse applications based on submissions such as these are likely to weaken the longer the defendant is in custody before the trial.

Reverse burdens

The convention includes at Article 6(2) a presumption of innocence. As in domestic law, it is for the prosecution to prove its case. However, in domestic law, Parliament has assisted the prosecution of a number of offences by reversing the normal burden of proof, and placing upon the defendant the burden of disproving some aspect of the offence.

Whether in doing so Parliament breached the convention's presumption of innocence depends on a close analysis of the relevant provision. Applying the test set out by Lord Hope in R v Kabeline [1999], the first stage is to determine the nature of the burden shifted. Is it an evidential burden or a persuasive burden? Is the burden discretionary or mandatory? Does it relate to an essential element of the offence or merely an exception or proviso?

Defendants who consider themselves the victims of such a provision, having established its nature, will wish to establish whether the reverse burden clause is in breach of his convention presumption of innocence.

The convention does not prohibit reverse burdens in principle. Therefore it does not regard presumptions of fact or law provided for in the criminal law with indifference. It requires the states to confine them within reasonable limits which take into account the importance of what is at stake and maintain the rights of the defence (See Salabiaku v France 1988).

A fair balance must be struck between the demands of the general interest of the community and the protection of the fundamental rights of the individual. That balance may be tipped away from the defendant depending on the seriousness of the threat to society that the reverse burden is designed to combat, how difficult it would be for the defendant to discharge that burden, and whether it relates to something that is within his knowledge or to which he has ready access.

The reverse burdens in the calendar of fraud offences are already beginning to spawn such arguments. Pending the creation of a body of case law, different judges may have different views on whether a reverse burden strikes a fair balance between the competing interests.


The nation was told in the preparatory consultation paper and white paper that the incorporation of the convention would be “bringing rights home”.

The aim was to change the relationship between the State and citizen. Incorporation would cut costs, save time and give power back to the UK courts.

Whether these are compatible aims awaits developments. Certainly significant money and time has been and will be expended by public authorities striving to deal with the new demands imposed on them by the informed citizen. The improved awareness of human rights may well be an important and worthwhile change in its own right. But in terms of the costs implications, the early indications are that the rights may have come home to roost.

Jonathan Ashley-Norman is a barrister at 2 Bedford Row.