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Appendices 77

ADB-OECD Anti-Corruption InitiativADB-OECD Anti-Corruption InitiativADB-OECD Anti-Corruption InitiativADB-OECD Anti-Corruption InitiativADB-OECD Anti-Corruption Initiative fe fe fe fe for Asia-Por Asia-Por Asia-Por Asia-Por Asia-PacifacifacifacifacificicicicicCombating Corruption in the NeCombating Corruption in the NeCombating Corruption in the NeCombating Corruption in the NeCombating Corruption in the New Millenniumw Millenniumw Millenniumw Millenniumw Millennium

Effective Prosecutionof Corruption

Report on the Master Training Seminar

Ghaziabad, India11–13 February 2003

Asian Development Bank Organisation for EconomicCo-operation and Development

Effective Prosecution of Corruption2.pmd 17/11/03, 1:30 PM77

2003 Asian Development BankAll rights reserved

This publication was prepared by theSecretariat of the ADB-OECD Anti-CorruptionInitiative for Asia-Pacific composed of theAsian Development Bank (ADB) andOrganisation for Economic Co-operation andDevelopment staff. The views expressed inthis publication do not necessarily representthe views of ADB or its member governmentsor of OECD and its member countries.

ISBN 971-561-508-2Publication Stock No. 100403

Published by the Asian Development BankP.O. Box 789, 0980 Manila, Philippines


Contents

Foreword .................................................................................................... vii

Executive Summary .................................................................................... ix

Part 1 – The Challenge of Prosecuting Corrupt Businessmen andPoliticians ..................................................................................................... 1

1.1 Coping with high-profile judicial cases: Experience ofprosecutors from Asia and the Pacific, and from Europe

Report on the technical workshop

Chaired by Eva Joly ..................................................................... 1

1.2 Difficulties encountered by the judiciary:A summary of key issuesBernard Bertossa ........................................................................... 9

Part 2 – Prosecuting Bribery Effectively ................................................. 13

2.1 Increasing the detection rate of bribery

Report on the technical workshop

Chaired by S. K. Sharma.......................................................... 13

2.2 Ensuring full cooperation of law enforcement agenciesduring investigationReport on the technical workshopChaired by John Dempsey-Brench ........................................... 17

2.3 Gathering evidence abroad: International legalassistance as a key to successReport on the technical workshopChaired by Bernard Bertossa ..................................................... 20

Part 3 – Case Studies and Experience from Selected Countries .......... 31

3.1 Investigation and prosecution of high-level corruption:A hypothetical case for trainingEva Joly ....................................................................................... 31

3.2 Bribery and international mutual legal assistance:A hypothetical case for trainingBernard Bertossa ......................................................................... 33

Effective Prosecution of Corruption2.pmd 18/11/03, 11:13 AM79

3.3 India: Prosecuting corruption of public officials –The role of communications and referrals from publicadministrationsS. K. Sharma ............................................................................... 36

3.4 United Kingdom: Cooperation between police andprosecution services in England

John Dempsey-Brench ............................................................... 43

3.5 Investigation and prosecution of police corruption:Operation OthonaJohn Dempsey-Brench ............................................................... 52

Appendices ................................................................................................. 61

Appendix 1. List of participants ........................................................ 61

Appendix 2. Program ......................................................................... 69

vi EFFECTIVE PROSECUTION OF CORRUPTION


The following governments have endorsed the Anti-CorruptionAction Plan for Asia-Pacific: Australia; Bangladesh; Cambodia;Cook Islands; Fiji Islands; Hong Kong, China; India; Indonesia; Japan;Kazakhstan; Republic of Korea; Kyrgyz Republic; Malaysia; Mongolia;Nepal; Pakistan; Papua New Guinea; Philippines; Samoa; Singapore;and Vanuatu.

v


Foreword

Over the last decade, societies have realized to what extentcorruption has damaged their welfare and stability. Governments,the private sector, and civil society alike have consequently

declared the fight against bribery and corruption a priority in theiroverall endeavor and politics.

In the Asia-Pacific region, 21 countries have translated thiscommitment into action by jointly developing and endorsing anAnti-Corruption Action Plan in the framework of the ADB/OECDAnti-Corruption Initiative for Asia and the Pacific. This plancomprehensively assembles the regions’ objectives and needs forreform to develop effective and transparent systems for public service;to strengthen anti-bribery action and promote integrity in business;and to support active public involvement in the fight against corruption.One of its most central aspects is the need to render investigation andprosecution of corruption more effective.

Considering the countries’ expressed need for capacity buildingin this reform area of the Action Plan, and the specific obstacles thathamper successful prosecution in this particular field of crime, theADB/OECD Initiative organized a master training seminar on thesubject Effective Prosecution of Corruption. The seminar hosted bythe Government of India on 11–13 February 2003 at the TrainingAcademy of the Indian Central Bureau of Investigation (CBI) inGhaziabad assembled 32 representatives of prosecution agencies andspecialized investigation units from 14 countries of the Asia-Pacificregion. The aim of the plenary discussions and case study workshopswas to build capacity within the responsible law enforcementauthorities and to strengthen the participants’ practical knowledge inareas where they face particular challenges, such as investigating high-profile cases; ensuring cooperation between law enforcement agencies;reporting corruption within public administration; and obtaininginternational legal assistance.

These challenges are not unique to the Asia-Pacific region; norare their remedies. The seminar therefore called upon experts bothfrom Asia, such as Mr. S. K. Sharma, Director of Prosecution of theCentral Bureau of Investigation of India, and from outside the region.These included Mrs. Eva Joly, former investigating judge of the Courtof First Instance of Paris, France; Mr. Bernard Bertossa, former


viii EFFECTIVE PROSECUTION OF CORRUPTION

prosecutor general of Geneva, Switzerland; and Detective ChiefInspector John Dempsey-Brench of the National Crime Squad ofEngland & Wales. ADB and OECD express their sincere appreciationto the experts for their valuable contributions.

The present document assembles the seminar ’s backgroundpapers and case studies, and the experts’ and participants’ views onthe key topics that formed the basis for discussion at the seminar. Assuch, the publication aims to make the expertise exchanged andacquired during the seminar accessible to a broader public and thusto contribute to the overall aim of combating corruption in the newmillennium.

The seminar on which this publication is based was, with thesupport of Enery Quinones, head, Anti-Corruption Division, OECD,managed by Gretta Fenner, project manager of the Anti-CorruptionInitiative for Asia-Pacific, Anti-Corruption Division, OECD, andcoordinated by Jak Jabes, director for governance and regionalcooperation, ADB, and Frédéric Wehrlé, coordinator for anti-corruptioninitiatives, Anti-Corruption Division, OECD. ADB and OECD expresstheir sincere appreciation to the Government of India for hosting thisseminar, and are in particular grateful for the assistance provided byBhaskar Khulbe, Cabinet Secretariat, Government of India, and Mr.Abhay, Director of the Indian Central Bureau of Investigation’s TrainingAcademy in Ghaziabad. Consultancy services by Joachim Pohl, legalexpert at the OECD Anti-Corruption Division, and editing by DavidHayhurst, under contract to the OECD, are thankfully acknowledged.

The views expressed in this publication do not necessarily reflectthose of the ADB’s Board and member countries or of the OECD andits member countries. It is published jointly by the ADB’s Regionaland Sustainable Development Department and the OECD’s Directoratefor Financial, Fiscal and Enterprise Affairs.

Jan P. M. van Heeswijk William WitherellDirector-General DirectorRegional and Sustainable Directorate for Financial, FiscalDevelopment Department and Enterprise AffairsADB OECD


Executive Summary

Prosecution of corruption is a particularly difficult endeavorand successes in this field are still too rare. The detection rate isoften low because of the lack of verifiable information that is

received from public servants or other citizens. Particular difficultiesarise when an investigation involves prominent politicians and wealthybusinessmen, or when it involves international bribery cases thatrequire assistance from foreign jurisdictions in collecting evidence.Shortcomings that are at the root of these problems can be found atthe legislative level; in addition, many law enforcement agencies aretechnically not up to dealing with complex crimes such as corruptionin an appropriate manner.

Responding to this lack of capacities in relevant law enforcementagencies, the seminar on which this publication is based addressedthe above-mentioned difficulties in its plenary presentations anddiscussions, as well as through practical work on hypothetical casesprepared by the invited experts. The aim was both to identify possibleremedies to be taken by legislators and to develop practical measuresand strategies that would allow prosecutors and investigators to dealwith such difficulties in the immediate absence of adequate legal andinstitutional reforms.

Investigating high-profile cases

Legal and institutional shortcomings may have a strong impacton the effectiveness of prosecution when investigations target corruptbusinessmen or politicians, as Mrs. Joly pointed out on the seminar’sfirst day; these cases are often characterized by a high degree ofsophistication concerning the methods of committing andcamouflaging the crimes. This complexity contrasts with the broadlack of training of investigators and prosecutors in specific relevantmatters such as forensic accounting, public funds, or insider trading.Unsuitable institutional provisions, especially insufficientindependence of the law enforcement agencies from interferinggovernment bureaus, add to these problems.

The influence a leading figure can exercise on his or her trialconstitutes a second major obstacle. Supported by skilled lawyers, suchdefendants can obstruct the prosecution with lengthy appeals, and


sometimes they even manage to influence the legislative bodies toamend legal provisions in their favor. Prominent defendants also benefitfrom the support of the public, which often displays sympathy for“successful” businessmen or politicians. The media, publicizing detailsand opinions from the trial, may also cause interference, followingtheir own logic or even commands from the perpetrator’s entourage.

Most of these hindrances must be addressed at the legislativelevel. Yet, a number of rules, to be applied at a technical and personallevel by prosecutors, may help to control and diminish the mentionedeffects and render prosecution of corrupt individuals in powerfulpositions more successful.

Reporting of corruption cases within public administrationand by citizens at large

Another difficulty arises from the secret nature of corruption and,in most instances, the lack of individual victims that would comeforward with information about an act of corruption and thus triggeran investigation.

India, as Mr. Sharma pointed out, has adopted several ways totry to overcome the lack of information impeding the launching ofotherwise often successful criminal proceedings. The country hasadopted general reporting obligations addressed both to civil servantsand to the public at large, and has institutionalized such reporting byestablishing a vast net of vigilance institutions within publicadministration. Vigilance officers and commissions at all levels ofadministrative departments monitor and survey potentially corruptactions and identify corruption-prone procedures and areas. Thesevigilance officers and commissions cooperate with the Central Bureauof Investigation, India’s federal prosecuting agency. Experience showsthat these mechanisms have, however, somewhat failed to live up tothe expectations because potential reporters of corruption seeminglydo not feel sufficiently protected against harassment on the job causedby their blowing the whistle on corruption. A person, in seeking touncover instances of bribery, may also fear the vengeance of theaccused, especially when his or her reporting leads to the launchingof an investigation and possibly the conviction of the criminal.

x EFFECTIVE PROSECUTION OF CORRUPTION


Coooperation between law enforcement agencies

Cooperation between law enforcement agencies is another keyto successfully collecting evidence and bringing about efficientprosecution of corruption. Legal provisions not only require followingdemanding procedural rules, but also assign certain steps of theprocedures to different agencies. These agencies must ensure that theiractions are coordinated to acquire evidence, and must seek mutualadvice to ensure the admissibility of the evidence when the case istried in court.

As Mr. Dempsey-Brench reported, the law enforcement agenciesin England and Wales have learned much about the need forcooperation in the course of particularly difficult investigationstargeting corrupt police officers. Measures have been taken toinstitutionalize the exchange of legal advice, to improve record keepingabout ongoing investigations, and to ensure access to the informationfor all agencies involved in the investigation and prosecution of thecase.

International legal assistance

In foreign bribery cases, international legal assistance, coveringnotably the gathering of evidence, repatriation of proceeds, andextradition is a key to the successful prosecution and deterrence ofcorrupt practices.

Yet, today borders still constitute significant barriers forprosecutors. Not so for criminals, who actually make use of them toflee from detection and prosecution and to conceal the evidence andprofits of their crimes. In addition, and especially when the crimeinvolves money laundering, perpetrators typically take advantage ofthe services provided in offshore centers. Investigating these monetarytransactions is a very arduous and time-consuming task and withoutlegal assistance from concerned foreign jurisdictions it can be ahopeless endeavor.

However, varying principles that apply to the provision of mutuallegal assistance make it difficult to obtain such assistance speedilyand severely impede the efficient prosecution of transnational criminalactivities. Regional or international conventions—when they exist—provide only a general framework for support. Under these conditions,as Mr. Bertossa pointed out, informal networks between relevantjudicial authorities in different countries may constitute an important

Executive Summary xi


remedy, even in the absence of universal treaties or regionalagreements.

Key findings

Corrupters and those corrupted still benefit enormously frombanking secrecy laws, the speed and number of electronic fiscaltransfers, tax havens and other offshore centers, and difficulties ofinternational cooperation in prosecution. Additional problems arisefrom a lack of independence of the law enforcement authorities andundue influence exercised on them, in particular by prominentpoliticians or wealthy businessmen. Because of the lack in many statesof legal provisions ensuring the protection of whistleblowers, thedetection and prosecution rates remain low despite otherwisecomprehensive legal and institutional anti-corruption frameworks.Most of these aspects require legislative measures. The seminar alsopointed out practical guidelines and generally applicable strategiesfor prosecution agencies to overcome the obstacles at least partly. Thestrategies of “starting at a low level, and working one’s way up” and“following the money” have proven particularly efficient even incorruption cases involving high-ranking, influential perpetrators andinternational transactions.

xii EFFECTIVE PROSECUTION OF CORRUPTION


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PART 1

The Challenge of ProsecutingCorrupt Businessmen and

Politicians

1.1 Coping with high-profile judicial cases:Experience of prosecutors from Asia and thePacific, and from Europe

Report on the technical workshopChaired by Eva JolySpecial Counsellor to the Norwegian Government

According to a fundamental democratic tenet,everyone is equal under the law. This nobleprinciple, however, does not do much to help policeor prosecutors act effectively when corruptionsuspects are wealthy businessmen or prominentpoliticians. The success rate of prosecutions againstsenior government officials and corporate executiveofficers in major multinational enterprises is still low.This is true throughout the world and even incountries that have enacted comprehensive anti-corruption legislation and have otherwise well-functioning institutions at their disposal. The lackof success in this very sector is due to an institutionalframework that is often unsuitable for coping withthe specific complexity of the crimes, the need tofind a balance between the defendant’s rights andprosecution, the impact of public interest, and theinstitutional and psychological pressures theseentail.


2 EFFECTIVE PROSECUTION OF CORRUPTION

The cThe cThe cThe cThe challenge of prhallenge of prhallenge of prhallenge of prhallenge of prosecuting high-prosecuting high-prosecuting high-prosecuting high-prosecuting high-profofofofofile corrupile corrupile corrupile corrupile corrupttttt

individualsindividualsindividualsindividualsindividuals

a. Unsuitable institutional provisions

Statutes, procedures, and institutions areusually tailored to the efficient prosecution ofaverage and petty corruption. They do not take intoaccount the particularities of high-level corruption,especially the sophisticated means criminalsinvolved in such schemes employ to commit anddisguise their illicit activities.

High-level corruption mobilizes extensiveresources to camouflage “levies,” “commissions,”and “kickbacks” and to transfer the acquired assetsto safe financial havens. The sophistication andcomplexity of these crimes contrast with the broadlack of sufficient capacity and appropriate trainingof many law enforcement agencies. This isparticularly true of cases involving public funds orinsider trading. There is a clear and pressing needfor more specialized training, covering especiallyforensic accounting.

In addition, when investigating high-levelcorruption cases, law enforcement agencies oftenface interference from government bureaus. Ratherthan being able to conduct their investigations asthey themselves see fit, they are often obliged tofollow orders from superiors who are close to thepolitical power structure and might try to influencethe course of prosecution.

b. Impact of influential defendants and theirentourage on the proceedings

Leading figures often owe their political orfinancial success to their personal skills:intelligence, charisma, popularity, and vastnetworks. They might try to employ these duringthe investigation as a powerful tool to influence theprocedure and its outcome.

Interference

from

governmental

bureaus

Lack of

adequate

training

Institutional and

psychological

pressures


Part 1 – The Challenge of Prosecuting Corrupt Businessmen and Politicians 3

Such defendants do not tend to back away fromconflict; on the contrary, they have the support ofskilled lawyers and utilize lengthy appeals,processes, and other stalling tactics to wear downpublic opinion, which tends to demand resultsquicker than sound judicial systems can deliver. Insome cases, the power of leading figures underjudicial scrutiny enables them to intentionallyweaken a sound legislative framework even duringsometimes lengthy investigations. The prominenceof the defendant comes into play even during thetrial, especially when the case is heard before a jury.Many citizens display seemingly “instinctive”tendencies to be pro-defendant, and are oftenespecially sympathetic toward the more well-dressed, well-spoken, and politically or economicallysuccessful defendants who are likely to be involvedin a high-profile case.

Other hindrances have effects at a morepersonal level. It is obviously very difficult to requestindividuals conducting inquiries never to putconcerns about their professional careers first.Prosecutors do not act in a political or social vacuum.The more prominent and powerful the figures beinginvestigated, the stronger the constraints. Those withan interest in undermining prosecutors’ efficacy orcredibility often look to the prosecutors’ colleaguesor subordinates, seeking the opportunity to appealto their personal priorities. For these reasons, it isimportant that prosecutors continually ensure thatthey have the full and uncompromised loyalty of alltheir confrères and staff.

c. Institutional and psychological pressures

Prosecutors dealing with high-profile caseshave to be prepared to undergo sometimes veryintense institutional and psychological pressures.For instance, influence from sources such as thosementioned above tends to make prosecutors doubtthe validity of their own courses of action.

Political and

personal

influence



Regulations restricting disclosure of informationeven within law enforcement agencies may bedetrimental to personal relations with colleagues andmay consequently lead to isolation and frustrationespecially in lengthy investigations.

Investigations targeting high-profiledefendants and especially politicians usually giverise to wide public attention. While this interestcontributes an important share in developing publicawareness about corruption and as such may beviewed positively, it also entails serious obstacles tothe investigation and causes pressure on lawenforcement agencies. Such pressure grows with themedia coverage. Following their own mechanismsand principles, journalists may inquire into the casesthemselves or prematurely disclose confidentialinformation to the public. They may also commenton strategic moves of the prosecution and therebyinfluence the public’s view of the case. Moreover,certain media may have sometimes well-definedinterest in a specific outcome of the case. As such,they may influence public opinion in favor of thedefendant or the prosecutor, thereby inevitablyweakening the principle of impartiality.

SSSSStrattrattrattrattrategies fegies fegies fegies fegies for successful pror successful pror successful pror successful pror successful prosecutionosecutionosecutionosecutionosecution

a. Remedies at legislative and international level

Some of the above-mentioned obstacles to thesuccessful prosecution of corrupt individuals in highpositions have to be solved at the legislative or eveninternational level. More specifically, regional andinternational instruments and networks may providemechanisms to strengthen and facilitateinternational cooperation. At the national level,barring convicted corrupt officials from reenteringelected politics and strengthening the independenceof law enforcement agencies may be useful tools.Finally, the fostering of cooperation and loyaltywithin law enforcement agencies by corresponding

Public pressure

Institutional,

legislative, and

international

remedies



institutional structures and mechanisms isimportant.

b. Practical tips

Drafting and amending legislation is a lengthyprocedure and this is even truer for internationalagreements. However, prosecutors and lawenforcement agencies at large may make use of thefollowing practical tips to investigate suchcorruption cases more successfully—keeping inmind that even a single top conviction could sendthe right message: that there is no longer impunityfor high-profile criminals.

– It is vital to focus on all possible financialangles in corruption cases, especially when it comesto eventually being able to confiscate ill-gottenmoney, property, or other assets. The fact that corruptindividuals are often more afraid of losing the fruitsof their crimes than of serving jail time can work toa prosecutor ’s great advantage. Some countries(e.g., Ireland and the UK) are, under certaincircumstances, legally entitled to seize such assetswithout being obliged to fully prove these weregained through crime if the defendant is unable toexplain the origin of such assets.

– Prosecutors should also consistently take fulladvantage of whatever beneficial transparency lawsare at their disposal. In some Scandinaviancountries, for example, the earnings of publicofficials are freely disclosed to the public. Thisprovides the prosecutor with an invaluable tool fordetermining an individual’s demonstrable networkif there are reasons to believe the suspect to haveother, illegally obtained assets to support him orher. In Norway, those convicted of serious crimessuch as drug trafficking or bribery must be ableto demonstrate the sources of their assets.Otherwise, prosecutors may ask the court to seizeproperties from the convicted felons and declarethem public property.

“Follow the

money”—and

seize it



– Ambiguous situations, e.g., conductinginterrogations in prison, or calling witnesses whoseintegrity might be called into question by thedefense, can constitute a risk and weaken the case.Prosecutors should always anticipate likelyconsequences when deciding on the strategy for theinvestigation.

c. Remedies at the personal level: Lessons fromthe experience of a French investigativemagistrate

– Prosecutors should work in teams and shareinformation and pressure with close and likemindedcolleagues, especially information that is not yetwidely known. The necessity of sharing keyinformation with colleagues becomes particularlyvital in light of the personal risks that prosecutorssometimes undergo in high-profile cases.

– Besides, it is a wise precaution to informone’s colleagues outside the team about what theteam is doing. This helps to lower the likelihood ofresentments. However, advice from those who donot share one’s immediate concerns should beavoided; their motives and agendas can be verydifficult to ascertain.

– All of the above points reinforce the need forprosecutors to present in court the technicallystrongest cases they can put forward. To this end,prosecutors should not hesitate to seek the adviceof their more experienced colleagues. The technicalmerits of a prosecutor’s evidence should help himor her, at least partially, to overcome the personalqualms that are a routine feature of bringing high-profile defendants to trial.

– When dealing with the media, prosecutorsmust be aware of how journalists work and think;everything prosecutors may say publicly tends tohave some degree of resonance. A journalist is nevera prosecutor’s friend per se and the media alwayshave their own agenda, which could easily clash with

Work in teams

and share

information

Take advice

Dealing with

the media

Avoid

ambiguous

situations



a prosecutor ’s. Violation of secrecy laws bydisclosing details to the media must be particularlyavoided, starting with situations that mightconstitute a risk of such violation. A prosecutor mighteven consider taking professional training in dealingwith the media.

– A prosecutor ’s own professional andpersonal behavior must be exemplary. Asking forfavors or committing even the most minor legalor ethical infringements may cause publicexposure. Also, prosecutors should avoid strivingfor professional advancement while a majorinquiry is in process. Being seen as overlypersonally ambitious is bound ultimately to workagainst a prosecutor ’s case.

– Severe psychological pressures, comingfrom many directions simultaneously, areinescapable. These burdens should not be over-internalized or personalized. Lawsuits againstprosecutors’ offices can be commonplace and avery serious cause of stress. It might be a greatadvantage to maintain, at a personal level, asupport group of friends to help keep up one’s self-esteem and relieve stress.

– No one has to “take on the weight of theworld.” A prosecutor has done his or her job well ifhe or she secures a conviction or convictions inproportion to the evidence presented.

– Prosecutors should strive as much as possibleto humanize defendants in their own minds. Thereare a number of small psychological tricks that canbe employed to tell oneself that the accused are farfrom the insuperable forces they can appear to be.

ConclusionsConclusionsConclusionsConclusionsConclusions

The lack of success in prosecuting influentialpoliticians or businessmen is to a large part due toan unsuitable institutional framework, the influencethat these individuals and their entourage have onthe proceedings, and hindrances arising from

Control personal

behavior

Self-

preservation

strategies



institutional and psychological pressures.Legislative, institutional, and international remedieshave to be found; however, since reform at theselevels usually progresses slowly, prosecutors are welladvised to adopt other remedies for the meantime.This addresses aspects at a methodological level,such as the use of procedural provisions hardly usedso far, and also at a personal level, particularly withrespect to personal security.



1.2 Difficulties encountered by the judiciary:A summary of key issues

By Bernard Bertossa,***** Former Attorney General ofGeneva, Switzerland

The judiciary encounters greater—and at timesinsurmountable—problems when indictingperpetrators of corruption than for other types oforganized or serious crimes. These difficulties aresometimes of a political, legal and operational natureand are briefly summarized below.

Political difPolitical difPolitical difPolitical difPolitical difffffficultiesicultiesicultiesicultiesiculties

Public figures and political parties underindictment have special powers, particularly amongthe public institution under their control, which theyuse to prevent evidence from being found. Even thejudge does not always have enough independencevis-à-vis the executive power, nor—at times—thenecessary integrity or courage. There are corruptedmagistrates, who are more interested in “carryingout orders” or advancing their careers than inconcluding investigations.

The judge is frequently accused of being usedas an instrument by one political party againstanother, by one state figure against the other, or byone regime against another. These accusations, evenwhen they are completely false, manage to discreditthe investigation. Reasons related to the country’sinterests are often used to “justify” corrupt acts: itwas necessary to defend the country against foreigncompetition, to protect employment, etc. The

* Published in: A. Alvazzi del Frate and G. Pasqua (eds.), Respondingto the Challenges of Corruption. Acts of the International Conference(Milan, 19–20 November 1999), organized by ISPAC/CentroNazionale di Prevenzione e Difesa Sociale, UNICRI publication no.63, Rome/Milan, 2000. Permission to publish was granted on 20October 2003.



accused persons cynically justify corrupt acts asbeing perpetrated for the well-being of theco-citizens or for the economic wealth of a country.

Legal difLegal difLegal difLegal difLegal difffffficultiesicultiesicultiesicultiesiculties

The non-incrimination of foreign publicofficials for corruption still represents a majorobstacle. This loophole was, however, partiallycovered when the Member States of the OECDincorporated the principles of the 1997 Conventionon Corruption in their national legislation.

There is a lack of common regulations, or evenworse, a complete lack of regulations defining thoseviolations of duties that should be considered ascorruption. This loophole is particularly evident inthe area of public administration, which isunfortunately easily corruptible. There is an absencein many countries of laws incriminating privatecorruption that does not directly involve publicofficials. There are still largely incomplete sets oflegislation on money laundering.

Many states consider bribe-giving in order toobtain legal services by public officials as beinglegitimate. It is often difficult to distinguish betweenobtaining a favor (which is punishable by law) andthe recognition of a right (which is not punishableby law).

Practical difPractical difPractical difPractical difPractical difffffficultiesicultiesicultiesicultiesiculties

Serious cases of corruption almost alwaysinvolve actors from different states, and the moneyused to corrupt is usually transferred throughcomplex channels, which often involve bankinginstitutions of various countries. The considerableobstacles met at the level of international penalcooperation favor both corrupters and corruptedpersons.

The financial strategies used to camouflage themethods used to perform a corrupt act or the profits



derived from it are becoming increasinglysophisticated and the judges often do not have theinstruments needed to uncover them. Appeals forcompensation are also becoming more and morefrequent. Financial intermediaries have becomespecialized in these systems and are able toeliminate paper trails. The systematic use of offshoreor other shell companies represents an effective formof camouflage. Furthermore, the legal authorities ofthe fiscal havens rarely collaborate in legalinvestigations. Lawyers and other people tied byprofessional secrecy and who can oppose the judgeare used as financial intermediaries, as are peoplewho enjoy immunity (heads of state, diplomats). Thejudge is powerless before this type of privilege.Although the confiscation of the profits of corruptionis often an effective instrument, experience veryoften shows that the judges do not take advantageof it, especially at the international level.

Governments and lawmakers are often the verypeople involved in corrupt practices, either forpersonal or for political reasons. It is thereforereasonable to believe that any significant progresswill be difficult to achieve, at least in the short term,unless the legal authorities are granted moreconcretely effective instruments to investigate theperpetrators of these practices which the lawmakersthemselves define as being criminal.


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PART 2

Prosecuting Bribery Effectively

2.1 Increasing the detection rate of bribery

Report on the technical workshopChaired by S. K. Sharma, Director of Prosecution,CBI, India

As noted in the first part of this publication,corruption is a particularly difficult crime toinvestigate because of its hidden nature and the factthat there is rarely an individual victim that couldcome forward, claiming a loss or harm, and therebytrigger an investigation. The successful prosecutionof this type of crime is therefore strongly dependenton the receipt of verifiable information from thosethat might come across corruption, i.e., from withinpublic administration and from the public at large.

In India, the legal framework for corruption israther comprehensive and, on the condition thatinformation about corrupt officers has been providedto authorities, conviction rates in corruption caseshave been quite high. Yet, and India is no exceptionin this, such information has been received far toorarely for a long time, leaving many corrupt actsundetected and leading the country to be consideredone of the most corrupt countries in the world.

India has tried to cope with this problem byintroducing a number of reporting obligations bothfor public servants and the public at large to raisethe detection rate. In addition, decentralized sourcesof information have been institutionalized, creatinga vast net of vigilance institutions at different levelsof the state administration.

Reporting

obligations

Lack of

information

about corrupt

officers



RRRRReporeporeporeporeporting obligationsting obligationsting obligationsting obligationsting obligations

Reporting obligations, addressed to publicservants as well as all other citizens, and punitivemeasures for failure to comply with theseobligations, are defined in section 39 of the Code ofCriminal Procedure (1973), which makes itmandatory for any person, regardless of occupationor professional status, to report to a magistrate orofficer of the law any alleged corrupt offense by apublic servant, or else face the possibility ofprosecution. Also, any high-value transaction withinor between federal offices has to be reported, sincesuch purchases tend to be where most corruption ingovernmental departments occurs. In addition, anumber of sections of the Indian Penal Codestrengthen these provisions.

In practice, however, section 39 has very rarelybeen invoked. Reporting obligations have not livedup to the expectations and have done little toencourage citizens or public servants to comeforward with information about corrupt acts that theymight have come across in their daily or professionallife. One of the reasons for this seems to be the fearof potential whistleblowers of being subjected toharassment and reprisals on the job, and the factthat they cannot be sure whether their time andcourage will lead to concrete follow-ups.

Existing provisions intended to protectwhistleblowers or those who uncover corruptionunfortunately do not significantly improve thissituation. Under the Indian Evidence Act, anyinformation involving corruption provided torelevant public authorities must be treated with thestrictest confidence. However, considering theinability of these provisions in recent years toencourage citizens to come forward with suchinformation, there seems to be a clear and pressingneed for legislation protecting whistleblowers tostrengthen the provisions under the Evidence Act.Recently, the Indian Law Commission has been

Reporting

obligations

Provisions

protecting

informants


Part 2 – Prosecuting Bribery Effectively 15

examining the “rule of law” concepts inherent inwhistle blowing as these relate to the limits to whichwhistleblowers can, on good faith, discloseinformation.

InsInsInsInsInstitutionalizing the sources of inftitutionalizing the sources of inftitutionalizing the sources of inftitutionalizing the sources of inftitutionalizing the sources of information:ormation:ormation:ormation:ormation:

Vigilance insVigilance insVigilance insVigilance insVigilance institutionstitutionstitutionstitutionstitutions

Considering the relative failure of the reportingobligations in place, India also in the 1960sinstitutionalized the sources of information withinpublic service in addition to the reportingobligations. To this end, the Central VigilanceCommission at the federal level, State VigilanceCommissions at the state level, and CentralVigilance Officers at the department level have beenestablished. These institutions complement theCentral Bureau of Investigation (CBI), the mainfederal investigating authority.

The Central Vigilance Commission is the apexvigilance institution at the federal level. It enjoysstatutory status and independence from anyexecutive authority. Its role is to supervise thefunctioning of the CBI and to advise various centralGovernment organizations in planning, executing,reviewing, and reforming their vigilance work.

The CBI in its authority receives support fromthe central vigilance officers. Such officers, civilservants, or senior police officers are appointed inevery department or organization within state-levelbureaus. They cooperate with the CBI or any otherfederal authority investigating suspected corruptactivities. Besides, the central vigilance officersexercise a preventive function, e.g., they examinethe rules and procedures of their respectivedepartments, identify corruption-prone areas, andsurvey officers working in these areas.

However, vigilance management in publicsector undertakings still faces some constraints.While these enterprises constitute an importantsegment of the economy and account for more than

Institutionalizing

the sources of

information

Cooperation

between

vigilance and

law enforcement

institutions

Vigilance

management in

public sector

undertakings



50% of gross domestic capital formation, thecompetencies of the Central Vigilance Commissionin this area are limited—allegedly because of theautonomous status of these enterprises. The workof the CBI and the Central Vigilance Commission isin fact often considered to be an obstacle to theircommercial competitiveness.

ConclusionConclusionConclusionConclusionConclusion

Reporting obligations, provisions protectingthose reporting acts of corruption, and even theestablishment of vigilance institutions have notproved to be sufficiently efficient in strengtheningIndia’s fight against bribery and corruption. Despitethese provisions, corruption in the public service isstill widespread and the detection rate is low becauseof the above-mentioned difficulties in obtainingverifiable information by relevant agencies. As thisshows, even a well-designed legal and institutionalframework does not ultimately guarantee successin the fight against corruption. Apathy and anxietyat the prospect of being subjected to harassment bycolleagues and superiors may discourage thereporting of illicit practices. In addition, a lack ofconfidence that law enforcement agencies will takeup the complaint and investigate the reported matterfurther discourages citizens from taking the risk ofexposing themselves by blowing the whistle. Thus,trust that reporters will be protected and anti-corruption education are fundamental preconditionsof success in the fight against corruption, as well asproof of the capacity and will of relevant lawenforcement agencies and political leaders not tolet corruption go unpunished.



2.2 Ensuring full cooperation oflaw-enforcement agencies duringinvestigation

Report on the technical workshopChaired by John Dempsey-BrenchDetective Chief Inspector, UK

Investigation into sophisticated crime such ascorruption requires particularly close cooperationbetween the law enforcement agencies involved.When gathering evidence using modern equipmentor techniques, the police applying these meansdepend on the advice of skilled lawyers to ensurethat the evidence produced is admissible in court.It is essential when further evidence is required bythe Crown Prosecution Service (CPS) that the policeexpedite their request to provide this evidence. Thevarious law enforcement authorities must record thedecisions taken and inform each other about thedecisions so that this information is available to theprosecution when the case is tried in court.Cooperation is not restricted to exchange of legaladvice and information; the agencies can alsoroutinely delegate representatives to work in eachother ’s offices. Investigations in Britain againstcorrupt officers within law enforcement agencieshave highlighted these aspects, and the lessonslearned in the course of these operations haveproven to be valuable experience to the British lawenforcement agencies for their investigations intocorruption even beyond police services.

Following very serious and harmful corruptioncases within the British law enforcementestablishment during the 1990s, the MetropolitanPolice Service launched a number of specialoperations. One of them, referred to as OperationOthona (see chapter 3-5), targeted corruption withinthe service itself. Combating corruption within thelaw enforcement agencies entailed particular

Combating

corruption

within law

enforcement

agencies



difficulties resulting from the perpetrators’knowledge of police tactics and their experience inanalyzing and investigating cases. The operationconsequently required significant modifications ininvestigation methods, which have radicallychanged the cooperation between the differentagencies.

The operational procedure formerly followedwithin the police service was to conduct aninvestigation, collect the elements of proof, and bringcharges against suspects before submitting thedocuments to the Crown Prosecution Service (CPS).As a consequence of this procedure, the CPS facedlegal arguments for any mistake made by the policeservices once the cases were brought to trial. Dealingwith such legal challenges became a very lengthyand expensive process for the CPS. When moresophisticated and unexplored methods, e.g., covertpolicing techniques or undercover officers, wereused during the investigation, legal pitfalls entailedstill more acquittals in court. The MetropolitanPolice Service eventually overcame its“professional pride,” which had previously stoodin the way of its obtaining the best and mostthorough legal advice available.Hence, the servicesought cooperation with the CPS to securesuccessful prosecutions and acquire evidenceadmissible in court. The CPS for this purposeprovided a dedicated team, which gave early advice,both before and during investigations. These teamsconsisted of lawyers and caseworkers skilled inhandling cases involving informants and covertpolicing techniques, and experienced inconducting sensitive and intensive inquiries.Thepolice services also consulted the CPS every timethey employed technical surveillance, undercoverofficers, or informants, to ensure that the evidencegathered would be admissible in court. It alsoundertook to make sure that specialists hadobtained the authority to use such equipment. Thecollected evidence was then shared with the CPS.

Cooperation by

providing legal

advice at an

early stage



Cooperation also paid off when cases were triedin court. Formerly, senior investigating officers,when cross-examined, could often not explain andjustify why certain decisions had been taken in thecourse of the investigation because of the lack of aproper system for record keeping, a problem which,again, often entailed acquittals. Nowadays,detectives from the Metropolitan Police Service keepa systematic set of detailed records for each invest-igation and continuously share them with the CPS.

As a lesson learned by all sides—police forces,the National Crime Squad, and the CPS—thecooperation is no longer restricted to mutualexchange of legal advice and information; theagencies today actually have representativesroutinely working in each other’s offices.

The contribution of this type of cooperation tothe success of investigation into corruption wasdemonstrated in a later case. In an operationtargeting a corrupt retired police officer, the CPSoffered legal advice throughout the process,including the time when the Anti-Corruption Unitwas obliged to use an untrained officer to act as anundercover agent. The CPS’s legal advice alsoensured that the use of then unexplored means ofinvestigation, such as audio and video recorders andother covert devices corresponded to the criteria oflegality, necessity, and proportionality such that theevidence collected was admissible in court.

ConclusionConclusionConclusionConclusionConclusion

Full cooperation of law enforcement agenciesduring all stages of the investigation and the trial incourt is key to success, in particular wheninvestigating sophisticated crimes such ascorruption. Such cooperation covers legal advice,exchange of information, record keeping, andmutual access to these records. Institutionalizingcooperation by exchanging representatives to workin each other’s office can be particularly fruitful.

Cooperation in

preparing for

court hearings

Representatives

in offices of

partner agencies



2.3 Gathering evidence abroad:International legal assistance as akey to success

Report on the technical workshopchaired by Bernard Bertossa, FormerAttorney General of Geneva

Corruption cases very often have atransnational character: the briber and the personreceiving the bribe are from different countries, andassets are transferred via several financial centersthat are located in still other countries. Therefore,in investigating and prosecuting corruption cases,international legal assistance is often the key tosuccess. Such legal assistance covers both takingand handing over of evidence, and confiscation andrepatriation of the illicit assets.However, a defectivelegal framework, numerous material conditions, andoften lengthy procedures render these operationsdifficult. Therefore, a clear view of the legalframework, provisions, conditions, and formalprocedures is crucial to the success of requests forinternational legal assistance, the collection ofevidence abroad, and the repatriation of theproceeds of corruption. Informal contacts may alsohelp in hurdling the difficulties that formalprocedures entail.

Legal frameLegal frameLegal frameLegal frameLegal framewwwwwororororork of intk of intk of intk of intk of international legal assisernational legal assisernational legal assisernational legal assisernational legal assistancetancetancetancetance

In criminal matters, there is no universal treatygoverning the gathering of proof abroad. Only modeltreaties of this kind exist, prepared under theauspices of the United Nations. However, manyinternational conventions on specific offencescontain provisions requiring signatory countries togrant each other mutual assistance at aninternational level, as, for instance, article 9 of theOECD Convention on Combating Bribery of Foreign

No universal

treaty



Public Officials in International BusinessTransactions. However, often such provisions remainrather general, leave room for differinginterpretations or approaches, and contain littledetail as to how the promised mutual assistance isto be provided.

In addition to multilateral treaties, there existmany bilateral agreements, exchanges of letters, orsimple declarations of reciprocity in this field, which,however, again usually contain only undertakingsin principle. Finally, several countries have adoptedinternal legislation regulating international mutualassistance. Such legislation may not derogate frombinding rules in treaties or international conventionsand applies without reservation only if the assistanceis requested by a country to which the requestedcountry is not bound under an international treaty.

When no treaty, convention, or bilateralagreement exists between the requesting and therequested country, the provision of assistance is notmandatory but still possible. The requested countryusually requires an undertaking of reciprocity onthe part of the requesting country. In this respect,common law countries are usually more restrictivethan civil law countries.

MatMatMatMatMaterial conditions ferial conditions ferial conditions ferial conditions ferial conditions for intor intor intor intor international legalernational legalernational legalernational legalernational legal

assisassisassisassisassistancetancetancetancetance

Regardless of the legal basis underlying arequest for legal assistance, such assistance isgranted only if the following material conditionsexist. First, a general prerequisite for mutual legalassistance is the criminalization of the act in boththe requesting and the requested country (dualcriminality rule). The assistance must relate tocriminal proceedings properly so-called, i.e.,proceedings against the perpetrators of an offenseunder ordinary law.While the dual criminality ruleseems clear and easily applicable, it entails seriousobstacles to gathering evidence abroad. This is

Bilateral

arrangements

Ad hoc

arrangements

Dual criminality

rule



particularly true in cases of corruption becausecountries have developed the necessary legislationcriminalizing bribery and corruption to varyingdegrees. Most countries, for instance, have notcriminalized private-to-private corruption, and evenbribery of foreign public officials does not constitutea criminal offense in some countries. This latterloophole, however, is nowadays covered, at least inthose countries that have implemented the 1997OECD Anti-Bribery Convention. Legislation onmoney laundering also remains largely deficient inmany countries.

Another major difficulty in this respect is thediversity of definitions of corruption in differentcountries. This is particularly evident in the area ofpublic administration. Many societies consider thegiving of bribes in exchange for services by publicofficials as legitimate or at least acceptable. In fact,it is sometimes difficult to distinguish betweenobtaining a favor (which is punishable by law) andhaving a right recognized (which is not punishable).

A second prerequisite for the provision ofmutual legal assistance is the guarantee of a fairtrial and respect for the fundamental rights laid downin the International Covenant on Civil and PoliticalRights in the legal system of the requesting country.

Some countries refuse to assist in fiscalproceedings. The request for assistance may also berejected if the proceedings concern political ormilitary misdemeanors or if the granting ofassistance constitutes a problem for public order orthe higher interests of the requested country. Thistype of difficulty often arises when the case concernsbribery in relation to the sale of weapons.

Contrary to what is often believed, however,bank secrecy provisions cannot be used to deny arequest for mutual assistance. Diplomatic immunityis also a frequent defense in corruption probesinvolving diplomatic or military envoys and attachés.However, in Switzerland, for instance, diplomaticimmunity provisions do not apply to private

Varying

definitions of a

corrupt act

Fair trial

Bank secrecy

and diplomatic

immunity

Unilateral

exceptions



economic activities and therefore also cannot beused to justify denying a request for mutualassistance.

PrPrPrPrProcedure of acqocedure of acqocedure of acqocedure of acqocedure of acquiring euiring euiring euiring euiring evidence abrvidence abrvidence abrvidence abrvidence abroadoadoadoadoad

If the material conditions for legal assistanceexist, the request for assistance has to be issued inwriting by a judicial or administrative authority withcriminal jurisdiction in the requesting country. Arequest from a parliamentary or governmentalauthority is not admissible.

The request must contain a description of thefacts behind the proceedings. This description mustbe as detailed as possible and must indicate in whatway the evidence being sought is useful ornecessary. In principle, the requested country doesnot verify the truthfulness of this description.However, common law countries are usually moredemanding in this respect and often require proofof the alleged facts.

The request must also set out in as detailed amanner as possible the nature and object of the proofsought abroad. Requesting undefined proof (“fishingexpeditions”) is not admissible.

If the two countries concerned are parties to aconvention or treaty authorizing direct correspon-dence between their judicial authorities, the requestis sent directly to the competent judge or magistrateof the requested country. Otherwise, the request ismade through the intermediary of central offices (ifsuch exist) or diplomatic channels.

The request is executed by the competentjudicial authority of the requested country, inaccordance with its own rules of procedure. If therequesting authority makes an express request, itmay sometimes be allowed to apply the rules ofprocedure of the requesting country. In theory, therequesting judge may participate in the taking ofevidence, but this is often difficult for practicalreasons such as lack of resources.After having

Form of request

Fishing

expeditions

Channels of

communication

Procedures for

execution of

requests



gathered the evidence sought, the judge ormagistrate from the requested countrycommunicates it to the requesting authority throughthe same channel that was originally used to makethe request.

In a great number of countries, the person inrespect of whom the request for mutual assistancewas made is allowed to appeal against the sharingof evidence with the requesting country. Suchappeals may cause considerable delays in theprovision of gathered evidence. For example, inseveral European countries—particularly in somethat are considered “tax havens” such asLiechtenstein, Luxembourg, and Switzerland—national legislation relating to international legalcooperation offers defendants in corruption casesmany opportunities to appeal against judicialdecisions that would disclose information on theirfinancial status. Defense lawyers, of course,frequently have a vested interest in seeing judicialprocesses extended. Finally, banks can also readilyappeal against the decision to transfer thedocumentation, and litigation regarding suchmatters can drag on indefinitely.These possiblereasons for delays in the procedure may mean that,while authorization to provide requested informationto a foreign authority may be granted within arelatively short period of time, the requesting partymight not actually receive the requested documentsfor several years.

ConfConfConfConfConfiscation and repatriation of priscation and repatriation of priscation and repatriation of priscation and repatriation of priscation and repatriation of proceeds,oceeds,oceeds,oceeds,oceeds,

eeeeextradition, and prxtradition, and prxtradition, and prxtradition, and prxtradition, and proceedings againsoceedings againsoceedings againsoceedings againsoceedings against thirt thirt thirt thirt third pard pard pard pard partiestiestiestiesties

A widely discussed issue in relation to mutuallegal assistance in corruption matters, in particularin the context of the negotiations of the UNConvention Against Corruption that took place in2002–2003, is the confiscation and repatriation ofthe proceeds of corruption, and extradition andproceedings against third parties. There is currently

Right of appeal



no internationally binding legal instrumentconcerning the repatriation of funds in particular.

If ever funds are repatriated these days, thereasons are usually more political in nature thanbased on legal obligation. The assets are transferredonly under the additional condition that therepatriated funds are not likely to end up in thepockets of other corrupt agents in the requestingcountry. Occasionally, funds are returned to banksor other private entities rather than claimantgovernments, as, for instance, the funds that hadbeen confiscated by Swiss officials at the behest ofthe Nigerian Government in the Abacha case andthe Philippine Government in the Marcos case. Inthe Abacha case, the funds were sent directly to theBank for International Settlements, whichconsidered them as partial payment for outstandingloans from the Nigerian Government. In the Marcoscase, the Swiss authorities and the PhilippineGovernment agreed that approximately $500 millionwould be returned to Manila on the condition thatan independent court would administer theequitable distribution of the funds.

As for extradition, permits to arrest andextradite suspects from other countries are usuallyvery difficult to obtain, especially if these personsare nationals of the requested country.

Banks through which money has beenlaundered are increasingly being held legallyculpable for what they should have known aboutthese transactions. It has become far more difficultnowadays for banks to simply claim that it is nottheir responsibility to scrutinize the activities of theirclients. For example, over the past few years, fiveSwiss bank employees have been sentenced and twobanks in Switzerland have been facing seriouspenalties in civil cases stemming from the billionsof dollars in assets secreted in that country by theAbacha family.

Repatriation

Extradition

Proceedings

against third

parties



CorrupCorrupCorrupCorrupCorruption-speciftion-speciftion-speciftion-speciftion-specific obsic obsic obsic obsic obstacles ttacles ttacles ttacles ttacles to into into into into internationalernationalernationalernationalernational

legal assislegal assislegal assislegal assislegal assistancetancetancetancetance

Sometimes the requested legal assistance isnever provided, despite the fact that all formal andmaterial conditions exist. This happens particularlyoften in investigations involving influentialpoliticians, and the reasons are manifold.

First, as noted earlier (cf. sup. 1.2), publicfigures and political parties, even under indictment,have special powers, particularly within the publicinstitution under their control. They may try to usethese means to prevent evidence from being foundor handed over. Governments and lawmakers aresometimes the very people involved in corruptpractices, either for personal or for political reasons.Significant progress is therefore difficult to achieve,unless the legal authorities are granted actualindependence and effective instruments toinvestigate the perpetrators of these practices thatthe lawmakers themselves define as beingcriminal.

Even judges do not always have enoughindependence vis-à-vis the executive power, nor—at times—the necessary integrity or courage. Thereare corrupt magistrates who are more interested in“carrying out orders” or advancing their careers thanin concluding investigations.Judges are frequentlyaccused of being an instrument of political partiesor individual members of the government or—in thecase of international mutual assistance—of thegovernment as such in its foreign affairs strategy.Such accusations discredit the investigation, evenwhen they are completely unfounded.

Alleged “national interests,” such as the needto safeguard the country’s economy against foreigncompetition, protect employment, etc., are oftencited in defense of corrupt acts. The accused personscynically justify corrupt acts as being perpetratedfor the well-being of the citizens or for the economicwealth of a country.

Political

influence

Independence of

the judiciary

National

economic

interests



Last but not least, the financial strategies usedto camouflage a corrupt act or the profits derivedfrom it have become increasingly sophisticated, andneither prosecutors nor judges always have theinstruments needed to uncover them. Financialintermediaries have specialized in these strategiesand are able to eliminate paper trails. The systematicuse of offshore or other shell companies rendercamouflage ever more effective. Furthermore,getting legal authorities in fiscal havens tocollaborate in legal investigations is often difficult.It is even more difficult when lawyers and otherprofessionals, who can oppose the judge because ofsecrecy provisions, or people who enjoy immunity(heads of state, diplomats) are used as financialintermediaries. The judiciary is powerless before thistype of privilege.

InfInfInfInfInformal neormal neormal neormal neormal netwtwtwtwtworororororksksksksks

Considering the legal and practical difficultiesencountered when seeking legal assistance throughformal procedures, informal remedies merit specificattention.

While informal contacts between prosecutorsand law enforcement officials from differentjurisdictions are unfortunately not very efficient, itis actually not unethical in the least to establishpersonal contacts with counterparts abroad. Ininternational cases, meetings between investigatingmagistrates are common, as are meetings betweenattorneys. Obviously, informal networks and contactscannot replace the formal procedure of requestingand obtaining legal assistance. However, informaldiscussions between colleagues from differentjurisdictions can be very useful in determining whois best suited to perform what duties in regard to amultijurisdictional line of inquiry, and what couldbe the best investigative approach. This method alsocan do much to help resolve or minimize the typesof problems inherent in translation needs or protocol

Complex

financial

transactions

Forms of

informal contacts



differences, such as how best to word formal requestsfor information.Experience indeed shows thatprosecutors can demand and receive evidencerelevant to criminal proceedings from their foreigncounterparts much faster when informal networksare working well. Close informal links can evensometimes be the only truly practical way to movean investigation forward. In countries wheredecisions involving international assistance inprosecutions can be made at the nonfederal level,close ties with authorities in regional, provincial, orcantonal positions can also be useful, as theseauthorities can often act much faster than theircounterparts at the national level.

ConclusionsConclusionsConclusionsConclusionsConclusions

Nothing prevents magistrates or otherauthorities from entering into direct contact with aforeign jurisdiction to demand information about thebest way to collect evidence (what form the requestshould take, to whom it should be sent, etc.). Whererelevant, the central authority of the requestedcountry is usually willing to provide this type ofinformation.

Certain conventions provide for the possibilityof spontaneous communication to the foreign judgeor magistrate of any information that could be usefulto the proceedings. As a possibility, this option existseven in the absence of any specific convention.Actual evidence, however, cannot be transmitted,since this would normally contravene mutualassistance regulations. But most other types ofinformation collected in independently establishedinvestigations could be exchanged freely.

As far as international bribery is concerned,the requested judge or magistrate, upon learning ofthe implication of its own country’s citizens, shouldopen his/her own proceedings. For instance, if therequested country is concerned only because itsfinancial center was used, its authorities should open

Enter into direct

contact

Open own

proceedings



their own proceedings for money laundering (themost frequent and fatal mistake in money launderingis to launder money from different illegal activitiesthrough the same account).In both cases, it can behighly useful for the investigating authorities of thetwo countries to define a common strategy, notablyas regards the exchange of necessary evidence.

When the person against whom proceedingsare brought in a certain country lives abroad, theproceedings may be delegated to the country ofresidence. In such a case, all the evidence gatheredis included in the case file that is transferred to theinvestigating authority abroad. In the context ofbribery, this allows, for example, the transfer of allthe documents concerning money launderingcarried out in this third country to the country inwhich the corrupt official lives.

If an act of a corrupt public official has causedmaterial damage to the country concerned, the lattermay ask to join as a civil party in the proceedingsabroad for the crime of money laundering. In sucha case, it will usually have access to the foreign actsof procedure.

The confiscation of the proceeds or instrumentsof corruption plays a major role in combatingcorruption. For this purpose, autonomousprocedures may be opened in any country to whichsuch financial proceeds have been traced.

Delegate

proceedings

Involve injured

parties

Start

confiscation

proceedings


○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○

PART 3

Case Studies and Experience fromSelected Countries

3.1 Investigation and prosecution of high-levelcorruption: A hypothetical case for training

By Eva Joly - Special Counsellor to the NorwegianGovernment

In February 1998 the Government of Uurdistan decided to equipits air-defense army with nine new MAC 2 fighters. It called for bidsmainly from two companies and chose the Rapace model from theNerodonna Company in Oustland. The total amount of this publicprocurement was $9 billion.

In January 2000, the Swiss investigating magistrate Pol Hardy,when working on an international letter rogatory from the Mexicanauthorities, investigated the accounts of a high-ranking public official,Mr. Green, who had an account in the Union des Banques Suisses inGeneva. In the course of this investigation he found, among a list ofcredits, the amount of $1.8 billion of which had been paid by “a clientof the bank”. After establishing that the money had been paid throughthe account of Mr. Nelson, a well-known intermediary from Vaduz(Liechtenstein), Pol Hardy followed the money trail and found that on24 December 1998, the very same day the account “Rosita” had beencredited, the amount had been split into $1.2 billion and $600 millionand credited to two other accounts in the bank, “Anita” and“Josephine.” This amount was very unusual in the profile of Mr. Green’saccount. Pol Hardy, who had been asked by the Mexican judge to “askall relevant questions,” questioned Mr. Green and asked him to explainthe movements in his accounts.

Mr. Green told the judge that he had personally known Mr. Nelsonfor 20 years and had agreed to lend him the use of his account, whichbore the name of his dog, as a favor, since Mr. Nelson had told himthat this was a very secret, but to him very honorable, operation. Mr.



Green said the operation had nothing to do with his Mexican client,but that he had been told that Mr. Nelson sometimes worked as anintermediary for the Nerodonna Company. He did not know who ownedthe “Anita” and “Josephine” accounts.

On seeing the new evidence from Pol Hardy, the Genevaprosecution service decided to initiate a criminal investigation intomoney laundering in Switzerland. After a long investigation, it turnedout that the “Anita” account belonged to the wife of the president ofUurustad, and “Josephine” to the mother of the chief executive ofNerodonna.

In May 1999, Igor Hansen, a brilliant young army captain ofUurdistan, was found killed in an office in the army headquarters.During the criminal proceedings, it was established that Igor had hadclose links with the Ministry of Defense and, according to rumors,was called “Mr. Five Percent.”

A search was made in Mr. Hansen’s house. It was obvious fromthe luxury furniture and valuable oeuvres d’art that all this did notcome only from his salary. Correspondence with Mr. Nelson and Vaduzwas found among his papers. The preliminary investigations alsoestablished that Mr. Hansen had participated in the Rapace transaction.A doctor of laws law fluent in six languages, he had translated all thecontracts that the Minister of Defense had entered into on behalf ofthe Uurdistan Government and had been present during all thenegotiations.

Igor Hansen, when found, wore a Cartier watch that bore theserial number 492555061693 on its underside. One piece of evidencethat particularly intrigued the investigators was a suitcase containingmany gold bars, which turned up during the search of the house.Uurdistan newspapers published the news of Mr. Hansen’s death andits very special circumstances.

QuesQuesQuesQuesQuestions ftions ftions ftions ftions for Tor Tor Tor Tor Training:raining:raining:raining:raining:

1. How should the death of Mr. Hansen be investigated?2. Which are the next steps to be taken in Switzerland and in

Uurdistan?3. What difficulties will a prosecutor/investigating magistrate

probably meet in the course of investigation and prosecution,both in Switzerland and in Uurdistan?


Part 3 – Case Studies and Experience from Selected Countries 33

3.2 Bribery and international mutual legal assistance:A hypothetical case for training

By Bernard Bertossa, Former Attorney General ofGeneva

In 1995, the Ministry for Economic Affairs of Briberyland decidedto replace all of its information technology equipment, which hadbecome obsolete. After receiving bids from a number of foreigncompanies, the ministry’s administrator awarded the contract to theAmerican firm Smith Corp. for $75 million. The new informationtechnology environment was installed in March 1996, and the ministrypaid Smith Corp. the agreed amount.

In April 1996, the public prosecutor of Briberyland received aletter from the Indian company Delhi Corp., which had also submitteda bid for the contract. Delhi Corp. informed the public prosecutor thatSmith Corp. had been awarded the contract because it had paidcommissions. It said that “John,” an employee in the ministry, hadreceived these payments.

The public prosecutor initiated an investigation of John, whichshowed that he enjoyed a lifestyle beyond what his government salarycould possibly provide. However, there were no suspicious funds inthe only bank account that John held in Briberyland. But during asearch of John’s house, the police did discover the business card of arepresentative of the BSA Bank in Zurich, Switzerland.

After sending letters rogatory to the Swiss authorities, the publicprosecutor learned that John did not, in fact, have an account at thebank. However, his name did appear as having signatory authorityover an account opened by a registered company, Fraud Ltd.,headquartered in Nassau, Bahamas, with the BSA’s subsidiary inGeneva, Switzerland. The beneficial owner of this account was anindividual known as “Pablo,” an independent foreign exchange brokeroperating in Briberyland. This account had been opened in January1996. In March of that year, it had been credited with $7.5 millionfrom a New York law firm. A few days later, $4 million had beentransferred to a bank in London and $3 million to a bank inLuxembourg.

Informed of these facts, the public prosecutor of Briberyland sentletters rogatory to London and Luxembourg. The replies to these lettersbrought to light the following:



– The recipient account in London belonged to Oxy Inc.,headquartered in the British Virgin Islands. Pablo was thebeneficial owner of this account. Since the account had beenopened in 1990, large cash amounts, from different origins,had been deposited and had later been transferred abroad.The account currently contained $10 million.

– The recipient account in Luxembourg had been opened in thename of John’s wife. A sum of $3 million had been the onlydeposit made to this account. This sum had not yet beentouched.

The public prosecutor of Briberyland decided to question Pablo,who admitted that accounts had been opened in Geneva and Londonand said that he had made these accounts available to some of hiscustomers in Briberyland to enable them to avoid domestic taxes.

The public prosecutor then asked John and his wife to come infor questioning. However, the prosecutor then received news that thejustice ministry had promoted him to the position of chief judge inanother city, effective immediately. A colleague known to be close tothose in power, and to have no interest in prosecuting bribery-relatedoffenses replaced the prosecutor. In fact, the new public prosecutorclosed the case without further investigation.

Before leaving his post, however, the former public prosecutor ofBriberyland had contacted his Swiss, British, and Luxembourgcolleagues whom he had dealt with regarding the letters rogatoryconnected with his investigation, to inform them of the situation.

In the meantime, John and Pablo had hired lawyers in Geneva,London, and Luxembourg. Arguing that the case had been closed inBriberyland, the lawyers contacted the banks to request that the balanceof the accounts be transferred to two separate accounts opened in twodifferent banks in Singapore. Before making the transfers, BSA Bankin Geneva contacted the local prosecutor, who decided to initiate hisown criminal proceedings for the crime of money laundering.

The prosecutor of Geneva ordered the seizure of the account ofFraud Ltd. in the BSA’s Geneva branch. He then sent mutual assistancerequests to authorities in London and Luxembourg, in which he askedthat the accounts of Oxy Inc. and of John’s wife be frozen, and that alldocumentation concerning these accounts be handed over to him. Healso sent letters rogatory to Briberyland to obtain a copy of the closedinvestigation file.



The authorities in London and Luxembourg met these requests,but the new public prosecutor of Briberyland took no action whatsoeveron the case.

After analyzing the bank documents received from London, theprosecutor of Geneva observed that a significant portion of the amountstransferred from the account of OXY Inc. had been transferred to anaccount with the FRITZ Bank in Vaduz, Liechtenstein. After sendingletters rogatory, he found out that this account had been opened in thename of a private company, BRIBY S.A., headquartered in Cyprus.The documents completed when the account was opened had beensigned by a lawyer in Vaduz and by the administrator from the Ministryfor Economic Affairs of Briberyland.

The prosecutor of Geneva again sent letters rogatory toBriberyland, confirming his initial request and explaining what hadbeen discovered in Vaduz. He asked for permission to question theadministrator. The new public prosecutor of Briberyland merely repliedthat the account of BRIBY S.A. had been opened at the request of thestate and that the funds belonged to Briberyland. The prosecutor ofGeneva was asked to stop investigating these funds.

Through unknown sources, the press of Briberyland had beeninformed of the Swiss request. Published articles raised questions aboutthe decision to stop the criminal proceedings initiated in Briberyland.

QuesQuesQuesQuesQuestion ftion ftion ftion ftion for Tor Tor Tor Tor Training:raining:raining:raining:raining:

What further steps do you think might be taken in this hypotheticalcase in each of the countries concerned?



3.3 India: Prosecuting corrupt public officials –The role of communications and referrals frompublic administrations

By S. K. Sharma, Director of Prosecution, CBI, India

Public sector corruption is rampant not only in Asian Pacificcountries but also worldwide. It embraces almost all spheres ofeveryday life in countless countries. In a strictly limited definition, theword “corruption” implies allowing the decisions and actions of publicservants to be influenced not primarily by the perceived pros and consof a particular circumstance, but rather by the prospect of personalgain or other such entirely selfish considerations.

Today, there is a vast and concerted international effort to dealwith corruption in the public sphere and to develop a universallyworkable system to defeat it. Lord Macaulay, president of the FirstIndian Law Commission and author of the Indian Penal Code Act (XLIV,1960) was well aware of the corruption and bribery then widespreadin the country. As such, chapter IX of the act was incorporated into theIndian Penal Code, consisting of sections 161 to 165A IPC (vide). Thesesections deal with the acceptance of any form of gratification otherthan legal remuneration in respect to an official act by a public ser-vant. Under the act, obtaining valuable assets without considerationby a public servant was made a punishable offense.

However, the provisions of the Indian Penal code provedinadequate in the prosecution of allegedly corrupt public servants.The Indian Parliament, with a view to curbing corruption, enacted thePrevention of Corruption Act of 1947. (This was amended in 1964, onthe basis of the recommendations of the Sanathanam Committee.) TheAnti-Corruption Laws (Amendment) Act (1964), the Criminal Law(Amendment) Act (1952); the Criminal Law (Amendment) Ordinance(1944), the Delhi Special Police Establishment Act (1946), the CriminalLaw (Amendment) Act (1966), and the Anti-Corruption Laws(Amendment) Act (1967) were all passed with a view to making anti-corruption legislation more effective, and to helping ensure timelytrials for anti-corruption cases.

The Provision Regarding Attachment of Ill-Gotten WealthObtained Through Corrupt Means was incorporated into the CriminalLaw (Amendment) Ordinance in 1944. The Prevention of CorruptionAct (1947) was later repealed with the passage of the Prevention of



Corruption Act (1988) (vide). Since the provisions of sections 161 to165A of the Indian Penal Code are already part of the aforementionedPrevention of Corruption Act (1988), they were struck from the code.

The Delhi Special Police Establishment Act (1946) was alsoenacted to create the infrastructure needed to investigate possible casesof corruption among officials of the national and state government,with the consent of these administrations.

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The Central Bureau of Investigation (CBI) was established as abranch of the national Government’s Ministry of Home Affairs byResolution 4/31/61-T (1963). Investigation work is done through theSpecial Police Establishment (SPE) wing of the CBI, which derives itspolice powers from the Delhi Special Police Establishment Act. Theact permits the CBI to probe into specified offenses or classes of offensespertaining to corruption or other forms of malpractice involving publicservants, with a view to prosecution. The Special Police Establishment,a CBI division, functions under the administrative control of the CabinetSecretariat.

Considering the legislation and law enforcement bodies describedabove, India can claim a reasonably sound infrastructure for tacklingpublic sector corruption. However, this bureaucratic network wouldbe of no use if there were no communications and referrals from thestate’s public administration. As the second most populous nation onearth, public servants are part of a vast network of ministries,departments, and directorates spread throughout the country. For thisreason, communications and referrals from public administrators arevital in identifying corrupt public officials, so that alleged incidentsinvolving corruption among them can be noted and scrutinized.

With the need to make the prosecution system function in a timelymanner in mind, the Central Vigilance Commission was created in1964 in accordance with recommendations from the Committee onthe Prevention of Corruption under Ministry of Home Affairs Resolution27/4/64-Avd. The commission has jurisdiction and other powers inrespect to matters to which the executive powers of the union extend.The commission has also been given the responsibility of overseeinggeneral supervisory work in federal government ministries anddepartments.

The commission also advises on any cases pertaining to:– Gazetted officers of the national Government;



– Senior officers on the Delhi police force;– Board-level appointees in the public sector;– Officers of port trusts or dock-level boards;– Insurance firms;– Cooperative societies; and– Any other societies receiving grants from the national

Government.

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Chief vigilance officers are assigned to federal ministries anddepartments, public sector bodies, banks, etc. These officers areentrusted with the task of keeping an eye out for any seriousirregularities and offenses, or for any abuses of office by public servantsfor personal gain. Their reports are sent to the Chief TechnicalExaminers Organization, which functions under the administrativecontrol of the Central Vigilance Commission.

On the basis of the officers’ recommendations, criminal casesare registered by the CBI for investigation. Cases in which onlydepartmental irregularities are observed are passed on to the respectivedepartments or public sector bodies. The latter may then decide onthe necessity for taking action at their end. If, during departmentalinquiries, cases of misconduct are proven, minor or major penaltiescan be imposed on the concerned officers or public servants, includingdismissal from service. If it is found that an offense under the Preventionof Corruption Act has occurred, the cases are then referred directly tothe CBI.

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But in spite of the aforesaid bureaucratic infrastructure, thestruggle against sleaze would be impossible if a sense of duty to reportany corrupt actions taken by civil servants cannot be instilled amonglaw-abiding members of the public and public officials alike. In India,it has been remarked that it has proven very difficult to encourageeither group to report suspicions to the police or to magistrates. Thecriminal procedure system in India is such that people hardly takeany interest in reporting corruption cases to the police, much less inoffering to cooperate during any investigations of such casesconcerning civil servants. The major problem remains the question ofhow to educate the public and encourage such reporting. Public



workers and regular citizens need assurance that their time will notbe wasted, and that they will not be subjected to any form of harassmenteither during or after any investigation.

Apart from this, there should be a reporting obligation for civilservants. Public servants are the most valuable sources for uncoveringcorruption in this sector, since they are obviously the first to be awareof possibly corrupt activities by their colleagues. Unless public servantstake active interest and consider it their duty to report corrupt acts,the fight against public sleaze will prove ultimately futile. But thereremains a general tendency among public sector colleagues not toreport illicit acts committed by co-workers. It is possible that suchtendencies develop because they do not want to become targets ofcontempt or retribution from their colleagues. Nevertheless, I am ofthe opinion that unless this sense of initiative is instilled in the mindsof civil servants, the fight against public sector corruption is difficultto win.

In India, the law regarding reporting obligations for publicservants is codified in section 39 of the Code of Criminal Procedure(1973), which provides the following:

Sec. 39 – The Public to Give Information of Certain offences –(1). Every person aware of commission of, or of the intention of anyother person to commit any offence punishable under any of thefollowing sections of Indian Penal Code 45 (1860), namely:

- Sections 121 to 126, inclusive, and Section 130 (viz., offencesagainst the state specified in Chapter VIII of the Code;

- Sections 143, 144, 145, 147 and 148 (viz., offences againstpublic order also specified in Chapter VIII);

- Sections 161 to 165A, (viz., offences relating to illegalgratification);

- Sections 272 to 278, inclusive, (viz., offences relating to theadulteration of food and drugs, etc.);

- Sections 302, 303 and 304, (viz., offences affecting life);- Section 364-A, (viz., offences relating to kidnapping for

ransom, etc.);- Section 383, (viz., offences of theft resulting in death, wounding

or restraint);- Sections 392 to 399, inclusive, and Section 402, (viz., offences

of robbery and decoity);- Section 409, (viz., offences relating to criminal breach of trust

by a public servant, etc.);



- Sections 431 to 439, inclusive, (viz., offences or acts of mischiefagainst property);

- Sections 449 and 450, (viz., offences involving trespassing onprivate property);

- Sections 456 to 460, inclusive, (viz., offences of lurking housetrespass); and

- Sections 489-A to 489-E, inclusive, (viz., offences relating tocurrencies)

shall, in the absence of any reasonable excuse, the burden ofproving which excuse shall lie on the person so aware, forthwith giveinformation to the nearest Magistrate or Police Officer of suchcommission or intention.

This section, therefore, makes it obligatory for every personincluding public servants to give information to the authoritiesregarding the commission of the offenses mentioned. Subclause (iii)of subsection (1) of section 39 of the Code of Criminal Procedure (1973)makes it obligatory for every person to report to the nearest magistrateor police station the commission of offenses relating to demand forillegal gratification from a public servant.

Subsection (2) of section 39 of the aforementioned code makes itclear that, for the purposes of this section, the term “offense” includesany act committed abroad that would constitute a criminal offense onIndian soil. As such, even offenses committed outside the country arealso included in this section.

Not only does section 39 make it obligatory for any person toreport the commission of a crime relating to corrupt activities of publicservants, the failure to give information required by the section mayalso constitute an offense under sections 118, 176, or 202 of the IndianPenal Code. Section 118 provides the following:

Sec. 118 – Concealing Design to Commit Offence Punishable byDeath or Life Imprisonment

Whoever intending to facilitate, or knowing it to be likely that hewill thereby facilitate the commission of an offence punishablewith death or imprisonment for life,

Voluntarily conceals, by any act or illegal omission, the existenceof a design to commit such offence, or makes any representationwhich he knows to be false respecting such design,



If offence be committed shall, if that offence be committed, bepunished with imprisonment of either description for a term whichmay extend to seven years,

If offence be not committed, with imprisonment of eitherdescription for a term which may extend to three years; and ineither case shall also be liable to a fine.

Similarly, section 176 of the Indian Penal Code provides thefollowing:

Sec. 176 – Omission to Give Notice to Public Servant by PersonLegally Bound to Give It:

Whoever, being legally bound to give any notice or to furnishinformation on any subject to any public servant, as such,intentionally omits to give such notice, or to furnish suchinformation in the manner and at the time required by law, shallbe punished with simple imprisonment for a term which mayextend to one month, or with a fine which may extend to fivehundred rupees, or with both;

Or, of the information required to be given respects thecommission of an offence, or is required for the purpose ofpreventing the commission of an offence, or in order to theapprehension of an offender, with simple imprisonment for a termwhich may extend to one thousand rupees, or with both;

Or, if the notice of information be required to be given isrequired by an order passed under Subsection (1) of Section 565of the Code of Criminal Procedure (1898), with imprisonment ofeither description for a term which may extend to six months, orwith a fine which may extend to one thousand rupees, or with both.”

In the same way, section 202 of the Indian Penal Code providesthe following:

Section 202 – Intentional Omission to Give Information ofOffence by Person Bound to Inform

Whoever knowing or having reason to believe that an offencehas been committed, intentionally omits to give any informationrespecting that offence which he is legally bound to give, shall bepunished with imprisonment of either description for a term which



may extend to six months, or with a fine which may extend to onethousand rupees, or with both.

Section 125 of the Indian Evidence Act (1872) also covers aspectsof the interest and integrity of the information given with regard tooffenses under the provisions of this section. Official communicationwith regard to the crime is privileged, and a police officer or amagistrate cannot be compelled to disclose the source of informationreceived by him with regard to the commission of the offense.

The above provisions show that, even in that era, lawmakers wereaware of how important it is to encourage the public to report crimes.They were also aware that the security of the informer was a criticalfactor in such matters. However, it must be stated that currentprovisions relating to reporting obligations in India remain inadequate.Other countries have dealt with such matters by enacting whistleblowerprotection laws. Such provisions now exist in Great Britain, Australia,New Zealand, and the United States, and in other countries.

Whistleblowers can play a very important role in providinginformation about corruption and abuse of office. Public servantsworking in the same department know which individuals may be actingunethically or illegally in their department. But unfortunately, as alreadymentioned, they are rarely bold enough to convey such information tohigher authorities for fear of reprisals. If adequate statutory protectionis granted, there can be no doubt that the government will be able toget more information regarding corruption and abuse of office.

Whistleblowers acting on good faith represent the highest idealsof public service while challenging abuses of power. There is a closeconnection between whistleblowers’ protection and the right ofemployees to expose corruption or abuse of office. The protection ofwhistleblowers vindicates important interests supporting the overallenforceability of criminal and civil laws. This aspect may be called the“rule of law” concept when applied to whistleblowers. Again, blowingthe whistle on corruption can be seen as supporting the public goodby encouraging disclosure of certain types of information. This aspect—namely, the “public information” or “public interest” concept—isemployed in cases of whistle blowing.

The Law Commission of India has also studied the issue ofwhistleblower protection at the request of the Chief VigilanceCommissioner. The commission recently conducted an in-depth studyof this matter, taking into consideration similar legislation in othercountries. In 2002, it then recommended a bill titled “The PublicInterest Disclosure and Protection of Informers Bill (2002).”



3.4 United Kingdom: Cooperation between police andprosecution services in England

By John Dempsey-Brench, Detective Chief Inspector, UK

The challenge of corruption in the British police forcesCorruption has the ability to exist in varying degrees of

seriousness at all levels and ranks within any police system. In theUnited Kingdom, there has always been concern about the conduct ofpolice officers, particularly in respect to tampering with evidence orabusing power for gain. The discovery of corruption within Britishpolice forces, unfortunately, is not a new phenomenon. There wereseveral high-profile corruption scandals during the 1960s and 1970s,many of which were concerned with the vice industry in and aroundthe London region. These included officers accepting bribes andprotection money, as well as fabricating evidence.

The then commissioner of the Metropolitan Police Service (MPS),Sir Robert Mark, sanctioned an operation to rid the MPS of corruptofficers. The result was that, between 1972 and 1977, more than 500officers were either forced to resign or took early retirement.

From 1977 to 1993, there were new priorities for British policeforces. Terrorism, drugs, and an increase in street violence meant thatthe issue of corruption was not constantly targeted and was soon nolonger seen as a priority. But in the early 1990s, corruption started toreemerge in a new format. Major proactive investigations were beingcompromised, trials and prosecutions were collapsing, and informationwas being leaked to newspapers. It was clear that corruption hadreemerged as a serious problem. While successful in identifying corruptand unethical practices, the early investigations failed to get to theroot of the problem. In 1995, the push to drive out corruption wasreawakened with a number of high-profile cases arising once againfrom within the MPS.

The overall response, while well intentioned, was flawed.Investigative teams consisted mainly of uniformed officers who lackedthe expertise and experience of veteran detectives. There was no formalliaison between the investigators and the Crown Prosecution Service(CPS), and there was no ability to respond immediately to seriousallegations.



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By the late 1990s, crucial lessons had been learnt. It was decidedthat so-called “Specialist Investigator Teams” needed to work with“Specialist Prosecution Teams” if the fight against corruption was tobe successful. The professional relationship between the SpecialistInvestigator Teams and the Specialist Prosecution Teams needed,however, to be nurtured carefully. Room could not be left to allowdefendants to accuse the CPS of overstepping its authority asindependent prosecutors and be branded as “investigationprosecutors.” The need for and the benefits of early consultationbetween the police and the CPS were duly recognized.

The following draft protocol is currently widely regarded as thebeing the most appropriate and significant way forward in establishinga constructive framework on which successful investigations andprosecutions of corrupt police officers may be conducted.

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1. Introduction

This draft protocol seeks to identify those cases that would benefitfrom early consultation or formal submission to the Crown ProsecutionService’s Casework Directorate for advice prior to the commencementof proceedings. It also provides guidance on the types of cases andcircumstances where the early involvement of the CaseworkDirectorate in offering advice and consultation could assistinvestigating officers in bringing focus to investigations, and help toensure that appropriate offenses are charged at the commencement ofproceedings.

The involvement of a crown prosecutor in the early stages ofinvestigations can eliminate unnecessary work, ensure that theevidence necessary to support a prosecution is obtained, and assist inaccurately formulating the charges that are to proceed. Crownprosecutors, however, cannot advise on operational decisions.Guidance should always be sought from supervising officers.

A list of the offenses which must be referred to the CaseworkDirectorate is in the annex at the end of this section. In addition, casesof the type described in point 5 below should also be referred.



2. Consultation and advice

Consultation and advice is likely to be of particular benefit incases that are serious, complex, or sensitive. This advice has thepotential to lead to

– The early establishment of a prosecution team, thereforehopefully helping to ensure that the ongoing investigation isfocused toward the case and charges are likely to proceed totrial.

– Helping to ensure that charges in indictable cases areappropriate, and that such cases are ready to proceed to theCrown Courts swiftly through the expedited provisions withinthe Crime and Disorder Act (1998).

– Early identification of evidential difficulties, and the means ofresolving them.

– Early identification of possible lines of defense, and lines ofinquiry that may be directed to rebut them.

– Reduced post-charge consultation and investigation, and feweradjournments at court.

– Early identification of appropriate CPS resources required,including the allocation of lawyers and caseworkers, and, inappropriate cases, the early involvement of suitablyexperienced counsel.

– Improved presentation of evidence within case file preparation.– A reduction in attrition, discontinuance, and late alterations

to charges. This includes early identification of cases thatcannot pass the requirements of the Code for CrownProsecutors, either evidentially or on the public interestcriterion, and therefore save police investigation time.

3. Involvement of crown prosecutors during covert investigations andbefore charges are laid

The early involvement of the Casework Directorate may be soughtat any stage in the course of an investigation or in the preparation ofa file. (Such requests need not be delayed pending the submission ofa file.) The early involvement of a Casework Directorate lawyer shouldalways be sought in the types of cases listed in point 5 below.

Investigating officers wishing to seek consultation or advice froma Casework Directorate lawyer should first seek advice from theirsupervisory officer in order to ensure that the issues are clearly



identified, and that advice is not sought on operational matters.Investigating officers should also inform their supervisors of any advicegiven in due course.

Early consultation may take place at any stage during the courseof an investigation, and does not require the submission of formalstatements or reports. This serves as an early opportunity forinvestigators to discuss the proposed investigation with a CaseworkDirectorate lawyer, so that likely issues may be identified, potentialcharges may be discussed, and emerging evidential difficulties maybe advised upon. Such consultation may take place via a face-to-faceor a telephone conference. Casework Directorate lawyers may attendincident rooms, where they will facilitate the assimilation of theevidence and material available, and any discussion of the case. Thelawyer will make a brief record of the issues identified and any guidancegiven.

Early consultation will also allow a Casework Directorate lawyerto provide general guidance in relation to lines of enquiry, and on thelegal elements required for a successful prosecution. (Such guidancemay ordinarily have to be provided orally in conference, and may notrequire the submission of case papers.) Early consideration can alsobe given to disclosure issues. Such consultations will also allow thelawyers and Casework Directorate managers the opportunity to identifythe resources required to be applied to more complex investigations,including, in appropriate cases, the early involvement of suitablyexperienced counsel.

The Casework Directorate managers should be notified of anycovert operations that might result in criminal proceedings. This willfacilitate early advice on the admissibility of evidence from suchoperations, as well as potential European Convention of Human Rightsand/or other abuse arguments relevant to the proposed operations.

4. Contact points and locations

The Casework Directorate has three offices in England locatedin London, York, and Birmingham. Each office has lawyers who haveexperience in handling cases involving police corruption.

Occasions do arise when cases of exceptional sensitivity develop,perhaps due to the suspected involvement of a member of CPS staff,police officers, or court staff with strong local connections, or due toparticularly sensitive covert (i.e., reactive and proactive) operationalactivities. To accommodate such circumstances, the London bureau



has special office facilities, with high levels of additional security. Theseare staffed by lawyers and caseworkers with specialist knowledge ofthis type of work built up over a number of years. While this specialistunit presently undertakes work from all over England and Wales, it ishoped to devolve the non-London-based work to other branches inthe Casework Directorate in 2003.

5. Requests for formal advice

Files submitted for advice must contain all relevant information,statements, copy documents, videos, and transcripts of interviews(including video interviews) to enable a full assessment of the case tobe made. The files should be accompanied by a report containing policeobservations as to the strength of the evidence, the reliability andquality of witnesses, and any other comments that may be pertinent.The investigating officer ’s view of the issues in the case should be setout, and the points upon which advice is sought should be identified.The identity of the investigating officer and supervisor should be clearlyindicated.

– Where a file is submitted for advice on a limited evidentialissue, the statements submitted can be directed to that issueonly.

– Where, exceptionally, a file is submitted for advice on anoverriding public interest factor, that file can be limited incontent to material sufficient to decide on that individual aspectof the case.

The views of the investigating officer and supervisors will be ofconsiderable assistance to the Casework Directorate lawyer in reachinga decision in the case. In appropriate cases, an early conference maybe arranged prior to or following the submission of the formal file.

Where it is likely that an investigation will be ongoing before afinal conclusion can be reached, a copy file should be submitted to beretained by the Casework Directorate while the investigation continues.The directorate is then alerted to the security implications of handlingand storing such material. All staff members are then securityclearanced and material is stored in secure cabinets.

Where an offender has a duty to return to a police station on bailunder section 47 (3) of the Police and Criminal Evidence Act (1984),that return date should be clearly marked on the file. Any other factorsrequiring the advice to be provided within a certain time period shouldalso be clearly identified. In complex and sensitive investigations,



supervisory officers should contact Casework Directorate managementto agree an appropriate time frame for the consideration of the caseand the provision of the required advice.

There may be cases in which the police conclude that the evidencedoes not justify any consideration of the commencement ofproceedings. Where the evidence in a case is manifestly insufficientto proceed, the investigating officer or a supervisory officer may decideto take no further action. However, where the insufficiency of theevidence is less obvious, early consultation with a Casework Directoratelawyer may enable further lines of inquiry to be identified and anyevidential or legal difficulties to be resolved, thereby allowing the caseto go forward for prosecution.

6. Cases in which early consultation and referral for advice willalways be considered

Early consultation and the obtaining of advice prior to thecommencement of proceedings will always be considered in complexand sensitive cases. Indicators of such cases are:

– Serious offenses of perverting the course of justice, perjury, ormisfeasance in public office.

– Cases involving surveillance or covert human intelligencesources, especially cases where public interest immunityapplications may have to be made.

– Cases involving integrity testing or test purchases, undercoverofficers, or any other sensitive technique, including thosecovered by the Regulation of Investigatory Powers Act.

– Cases involving a number of defendants, or a number or seriesof offenses.

– Cases involving difficult questions of evidence such ascorroboration, similar fact evidence, or the evidence ofaccomplices.

– Cases involving significant breaches of PACE codes or difficultor disputed identification issues.

– Cases potentially involving complex disclosure issues,especially where there is significant unused material, some ofwhich may be in the possession of third parties.

– Cases involving organized crime or drug trafficking.– Cases involving allegations of sexual offenses (involving

children or adults) where there is little or no corroboration.– Cases of exceptional difficulty, sensitivity, or other public



concern; cases potentially involving contested points underthe European Convention on Human Rights (Human Rights Act).

– Allegations of incitement to racial hatred or conduct likely tostir up racial hatred.

7. Consultation and advice on investigative issues

Consultation helps to ensure that a separation of the functions ofinvestigation and prosecution is maintained. It is the role of policeofficers to investigate offenses, and of the CPS to prosecute. CaseworkDirectorate lawyers will not direct the course of an investigation orbecome involved in operational decision making. They will, however,advise on lines of inquiry, the legal elements requiring proof in eachoffense, and the nature and extent of evidence required.

Crown Prosecutors may provide the police with advice andguidance in respect of any matter bearing on the need for, and/or thequality, reliability, and admissibility of, evidence in any possibleprosecution, including the manner in which that evidence may bepresented.

8. Areas and issues upon which advice can and should be sought

A Crown Prosecutor may advise the police about the potentiallegal and evidential consequences of any possible prosecution of anyact or admission at the investigative stage. However, it is forinvestigators to make decisions about the appropriateness of any policeoperational matter. For example, a lawyer will provide advice uponintegrity tests and undercover operations to avoid possible claims ofagent provocateur activity, and to safeguard the admissibility ofevidence obtained by such means.

Advice should not be requested or given if its nature maynecessitate the calling of a Crown Prosecutor, CPS caseworker, orcounsel as a witness in a prosecution.

The Casework Directorate should be consulted in any caseinvolving a participating informant, a potential accomplice witness,or a resident informant/protected witness. The Casework Directoratelawyer should be consulted regarding any decision as to whether anindividual should be treated as a defendant or a witness, and in regardto the conduct of any debriefing procedure.

A Crown Prosecutor may advise investigators and represent theprosecution in any pretrial applications (such as warrants of further



detention), to ensure that the proper legal steps are taken and that aninvestigation may continue without prejudice to a possible prosecution.

9. Disclosure

Casework Directorate lawyers can also advise investigatingofficers as to the retention, recording, and revealing of unused material,including, where appropriate, the arrangements for disclosure to thedefense.

Early consultation will help in ensuring continuity in themanagement of unused material. It will also help in early identificationof potential Public Interest Immunity (PII) issues, and to ensure thatthe prosecution team, including counsel, has a comprehensiveknowledge of any unused material both disclosed by and subject to PII.

Early contact should include decisions regarding the futuredisclosure of the identity of any confidential source, as well as of anyintercepted material that may undermine the prosecution case andthereby require disclosure.

Annex: Police Complaint Cases which must be referred to the CaseworkDirectorate

The following police complaint cases must be referred to theCasework Directorate, to be handled there in accordance with anagreement between the CPS and the PCA:

– Allegations against officers of or above the rank ofsuperintendent (except allegations relating to the use of motorvehicles other than where death was the cause in the execution,or purported execution, of duty);

– Allegations against police officers of any rank• Which were referred to another force for investigation;• Which involve interference with the administration of

justice;• Which pervert the course of justice (or attempt/conspire to

do likewise);• Which contravene the Perjury Act (1911), s1 (i.e., perjury in

a judicial proceeding);• Which constitute offenses akin to perjury (e.g., false witness

statements tendered in criminal proceedings under theCriminal Justice Act (1967, s89) or the Magistrates CourtsAct (1980, s106);



– Subornation of perjury;– Assist an offender under the Criminal Law Act (1967, s5);– Conceal an arrestable offense under the same Law);– Permitting escape from custody, assisting escape and harboring

an escapee;– Wasting police time under the Criminal Law Act (1967, s5);– Any other offense that is intended or likely to interfere with

the administration of justice (e.g., forgery of witness statement,theft of exhibit in pending trial);

– Corruption;– Misconduct in a public office;– Offenses committed in the execution, or purported execution,

of duty which result in:• Death;• Serious injury, other than offenses relating to the use of a

motor vehicle. (Serious injury is defined by s87(4) PACE1984 as a fracture, damage to an internal organ, impairmentof bodily function, a deep cut, or deep laceration.)

– Offenses involving the use or discharge of a firearm in theexecution, or purported execution, of duty;

– Concerning death(s) in police custody;– Serious offenses facilitated by the use of the officer’s position

of authority, for example:• Serious assault on a prisoner, potential witness or vulnerable

victim; and• Blackmail

– Offenses that should, in any event, be referred to the CaseworkDirectorate, whether or not police officers were the subject ofthe allegation;

– Offenses under the Data Protection Act (1998) and ComputerMisuse Act (1990); and

– Offenses in one of the forces specified in S1 1985/1986 otherthan those whose duties lie within a single CPS area. (See thefootnote to “s3(3) Prosecution of Offences Act (1985)” in Stone’sJustices’ Manual.)

For the full list of offenses, see Stone’s Justices’ Manual 1-2901.



3.5 Investigation and prosecution of policecorruption: Operation Othona

By John Dempsey-Brench, Detective Chief Inspector, UK

The first major wave of corruption scandals involving Britishpolice occurred in the 1960s and 1970s, primarily in and aroundLondon. These primarily centered on officers accepting bribes ordemanding protection money from those involved in prostitution,illegal gambling, or other vice-related activities. A series of inquiriesresulted in the forced resignation or early retirement of more than 500officers in London’s Metropolitan Police Service (MPS) alone.

By the early 1990s, it was becoming apparent that very seriousand harmful corruption had made a return within many branches ofthe British law enforcement establishment, including the CrownProsecution Service (CPS). Technical surveillance equipment, as wellas intelligence- and evidence-gathering methodology, had progressedsince the 1970s. But too many investigations were being compromisedin their early stages. Some prosecutions and court cases were alsocollapsing, often in their very early stages. In some cases, suspicionsof jury and evidence tampering were evident. Unfortunately, internalefforts by police forces to tackle corruption were often questioned bythe media, who felt sure that the problems were even more seriousthan the police were actually saying.

The actual extent of corruption in several institutions eventuallybecame clearer, because of anecdotal evidence and intelligenceoperations. One of the most serious cases in the 1990s involved MarkHerbert, a CPS administrator. Herbert had been placed in a verysensitive administrative post, giving him access to most of the recordsof cases being conducted by CPS, including the names and addressesof all individuals under scrutiny, all the names and addresses ofinformants, and of all police officers involved in ongoing investigations.

It eventually came to light that Herbert had tight links with oneof London’s most powerful organized crime families, and was sellingto it highly confidential data relating to some major investigations.Apart from the damage the Herbert case did to the CPS’s reputation,the scandal seriously affected the MPS’s and the National CrimeSquad’s (NCS) desired initiative to start working much more closelyand thoroughly with the CPS in major investigations.



At this time, the MPS and NCS began to realize just howextensively some operations were being compromised at theinvestigative or prosecution stages. Also, it was consistently receivingclear and reliable evidence that both cash and drugs were beingroutinely stolen in the course of police searches. (Drugs were oftenthen resold, with some officers even becoming traffickers andimporters.)

Equally serious was evidence that police officers were alsoinvolved in committing armed robberies, blackmailing people whocould testify or were actually testifying in cases in court, using theirown standing with judges to alter court proceedings, providing bailfor co-opted individuals charged with crimes, etc.

Operation OthonaOperation OthonaOperation OthonaOperation OthonaOperation Othona

Operation Othona ran from 1993 to 1997. It was launched by theorder of MPS Commissioner Sir Paul Condon to tackle corruptionwithin the MPS. It was also intended to address the problem of thedisorganized intelligence gathering and handling procedures thenbeing used. Another priority was to stop the systematic leaking of highlysensitive information from within the MPS itself.

Othona’s primary objective was to penetrate the operational strataof the network (or networks) of corrupt MPS officers. The mostsophisticated and proactive intelligence gathering methods availableto the MPS were used. It was hoped that, once the true dimensions ofthe corrupt network of officers had been verified, an effective strategicanalysis of the threat could be formed.

Determined to keep knowledge of Othona’s existence asconfidential as possible, the MPS’s Anti-Corruption Unit secured asafe, covert location to serve as its operational headquarters. (Thislocation had never been used in any previous police operations.) Then,the unit gave selected, well-experienced officers plausible operational“covers” by granting individual sick leave permission, early retirement,geographical relocation, etc. Even the surveillance equipment usedwas sourced from outside the MPS.

Over the four years in which Othona ran, the following illicitactivities on the part of MPS police officers were revealed:

– Stealing of drugs and cash during police searches;– Sharing of rewards between officers and informants;– Fabrication of applications for informant rewards;– Sale of intelligence relating to operations;



– Drug trafficking; and– Collusion with informants for crimes to be committed, then

sharing of the proceeds.

Mistakes

Unfortunately, major mistakes were made in the course of Othona.Originally, 150 experienced detectives were selected. But uniformedofficers were later also recruited to add extra manpower. Most of theseofficers were much less experienced than the original team members.Many lacked the skills and background needed in such sensitive andoften wide-ranging probes. Also, the uniformed officers had a distinctlack of technical knowledge of sophisticated surveillance devices, oreven of more standard surveillance procedures.

After concluding that initial investigative results were quite poor,Othona’s directors came up with a new organizational structure. Themost crucial features of the new model were the ways in which thecore “internal” team would interact with other units. Although thisnew structure was not particularly elaborate, it proved demanding inman-hours and involved over 1% of the entire MPS’s staff strength.

Operation Othona: Integrated police team structure

– Internal Team: This essentially consisted of an intelligence celland management provision.

– Prevention Strategy Team: This team held the unique role, ofshutting down any loopholes that emerged during operationsin which police officers may have been able to act in a corruptmanner (i.e., being much more attentive to circumstancessurrounding bail provisions regarding evidence being offered).The team was generally allowed to operate at their owndiscretion regarding actions to pursue in specific cases.

– Source Unit: This was felt necessary to provide integrity forthe overall surveillance, in accordance with the fact thatcorruption had penetrated senior levels of many departmentsof the Metropolitan Police Service. It was hoped that havinga source unit would enable the entire team to pinpoint whereand when any eventual problems first arose.

– Witness Protection Unit: This was considered particularlyimportant in helping ensure the protection of informants. Inthe course of events, this unit was responsible for handling



exposed corrupt police officers, who then decided after beingcharged to provide information to investigators about otherofficers’ illicit behavior. Before this investigation, trying topersuade officers to testify against colleagues had been almostcompletely ineffective. But since Operation Othona had provenso successful in prosecuting corrupt officers, they were willingto negotiate for reduced sentences by providing informationon co-conspirators. (Witness protection in the UK now averages£30,000 per person. Othona’s budget eventually ran intomillions of pounds. But this was considered money well spentin the cause of exposing such profound and high-reachingcorruption in the nation’s largest police force.)

– Integrity Unit: This unit’s duties required close cooperationwith the CPS.

– Other Units: It was considered absolutely essential to enlistthe collaboration of several other police agencies in many jointoperations. These included the Ministry of Defense Police, theNational Criminal Intelligence Service, NCS, foreign policeforces, and various other undercover police operatives.

– External Development Team: This team was made up of skilledsurveillance officers accustomed to using sophisticatedequipment. Since most of the targets of the investigation werethemselves skilled and experienced officers who had servedon major crime squads, the targets themselves had the highesttechnical knowledge of the latest devices.

– Ghost Squad: The ghost squad should probably be consideredthis investigation’s biggest success. A ghost squad essentiallyconsists of officers whose activities and whereabouts wereconcealed from other units. This was very important formonitoring the actions of the other units that were part of theoperation. This proved to be an expensive, but ultimately veryeffective factor in the overall operation.

Interacting with the CPS

It was obvious from the early stages of Othona that the investigationwas entering many unexplored areas, especially in terms of the methodsbeing used. It was felt certain that defense attorneys would present manychallenges to some of the methods employed, once individual caseswere brought to court. The CPS’s cooperation was felt to be vital in theinterests of being able eventually to secure successful prosecutions.



The CPS’s initial response to MPS requests for assistance wasvery positive. The CPS realized that it had its own reputation to considerin the overall environment of battling corruption. It provided adedicated team that

– Could provide early advice, both before and duringinvestigations;

– Could understand intelligence-led operations against allegedlycorrupt officers; and

– Was staffed by lawyers and caseworkers skilled in handlingcases involving informants and covert policing techniques, aswell as being experienced in conducting sensitive andintensive inquiries.

The CPS, however, was soon to experience its own problems.Secure office space was unavailable. But an even more serious problemwas a group mentality within the British public.

This overall mentality seemed to hold that the types of activitiesbeing investigated were barely possible. The vast majority of Britishpolice were honest and law-abiding public servants. Therefore, howcould it be possible for corruption to be as common and as serious asthe MPS Anti-Corruption Unit thought was possible?

This mindset provided a huge advantage to corrupt officers, whooften succeeded in breaching some of the most impregnable securitysystems. Specialist government security advisors were contacted tohelp the investigators prevent any hacking by such officers whileOthona was an active operation. The MPS also deliberately avoidedadvising the CPS on how to proceed with any disciplinary actionagainst any corrupt officers that CPS itself had identified. Such advicecould easily reveal that breaches in CPS security systems had occurred,leading other corrupt agents to alter their behavior.

Operational liabilities

Othona soon became a very expensive operation. The CPSchose to appoint a barrister from the government’s Treasury Councilat the beginning of virtually every Othona-related investigation toprobe subjects such as disclosure of information. Some inquirieslasted up to 18 months, with legal counsel normally charging verylarge fees.

The selection and vetting process for CPS operatives was alsoproblematic. Any person that the CPS considered for the operationalteam needed to disclose any professional contacts they had previously



had with any police force. All potential prosecutors also had virtuallyevery aspect of their lives closely scrutinized.

There was also the issue of finding the right balance between theprosecution/investigative teams and the various police forces. Thiscreated the paradoxical situation of seeking advice from the CPS, whilealso insisting that such advice not be interpreted as altering thedirection of any investigations.

Mistakes

There was a tendency from the outset of Othona for the MPS tothink that it knew best how to conduct thorough investigations.Standard operational procedure was to

– Conduct an investigation;– Bring all case papers together; then– Bring charges against suspects, but before case papers had

been submitted to the CPS.The CPS was then forced to rely too heavily on the results of any

MPS-led investigation. This led to an unintended result: any mistakesmade by the MPS meant that the CPS would then be caught up inlegal arguments when cases were eventually brought to trial. Dealingwith such legal challenges then became a very lengthy and expensiveprocess for the CPS.

This led the prosecution/investigative teams to contact the CPSearlier in subsequent investigations, to ensure that any gatheredevidence would help to provide the strongest possible legal argumentsfor any and all future indictments.

Because of these experiences, the MPS soon realized that, forpractical purposes relating to Othona, any relevant advice offered atthe outset of investigations had to be ongoing advice.

MPS/CPS Cooperation in gathering legally admissible evidence inOperation Othona

– Technical surveillance: The MPS chose to consult the CPSevery time any form of technical surveillance was to beemployed. The MPS made sure that specialists were able toobtain the authority for the use of such equipment. Then, it sharedall information gathered through surveillance with the CPS.

– Use of undercover operatives: The MPS employed the sameprinciples. Seeking CPS advice was seen as essential because



it might have been too easy for an undercover operative tooverstep the mark and become an agent provocateur. Thiswould probably guarantee future legal challenges in a courtcase. (This later proved to be a wise precaution when, in thecourse of one investigation, a piece of technical equipmentwas compromised. The CPS was able to prevent the full detailsof the compromise from being exposed.)

– Use of informants: This is a highly sensitive area regardinggathering admissible evidence and avoiding difficult courtchallenges. The MPS sought information and advice from theCPS at every stage of Othona in which informants were involved.

– Standards of evidence: British juries in general are quitereluctant to convict allegedly corrupt police officers, regardlessof the evidence presented to them. The MPS was well awarethat all evidence they gathered had to be of the highest possiblestandard. When prosecuting an ordinary member of the public,the evidence standard from the CPS’s perspective is 51% (i.e.,that should be the realistic assessment of chances of successfulprosecution). In dealing with cases involving police officers,the CPS calculated an evidence standard of 90%.

Problems encountered during Othona

It proved to be very difficult to persuade honest police officers totestify against their colleagues. (The Anti-Corruption Unit eventuallymanaged to overcome this, once it had managed to secureprosecutions.)

Resident informants in the UK are obliged to admit all priorcriminal convictions before they can even be considered for residentinformant status. Such informants can find themselves under greatpressure in weighing how much “self-incriminating” information tooffer to police. They quite often run the serious risk of being chargedwith offenses on the basis of what they might choose to disclose abouttheir own illicit acts that prosecutors otherwise probably would neverknow about. (It is extremely rare for resident informants to be offeredleniency when providing any information.)

Difficulties involved in prosecuting police officers

Because of their own often extensive experience with suchmatters, police defendants in Othona-related prosecutions were often



well aware of some of the weak spots in the cases against them. Thesetended to revolve around the following:

– The Regulation of Investigatory Powers Act (2000): This wasnew legislation at the time of most Othona-styled prosecutions.The act was therefore untested in British courts, or by activeoperations. The act amended the list of authorities that werelegally permitted to approve what types of surveillanceoperations (i.e., involving private dwellings, hotel rooms, etc).The act also redefined the number of authorities that werelikely to be needed for certain operations.

– The Human Rights Act (1998): This was most often used as adefensive legal challenge concerning questions regarding thelegality, proportionality, and necessity of investigative tacticsused during Othona. The MPS felt that most such challengeswere fundamentally unfounded in the cases of police officers.It was felt that the police should rightly be held to higher ethicalstandards of professional conduct than the average citizenshould. To date, most defensive legal challenges involvingprosecutions of police officers under the act have beensuccessfully countered.

– Public Interest Immunity: This is often a particularly sensitivearea in relation to the use of informants. Naturally, informantscan only be recruited with the understanding that they canand will be protected. Frequently, court cases reach the stagewhere prosecutors are faced with the dilemma of choosing tocontinue with a course of action that could strengthen theirlegal case, or risk exposing an informant. Generally, thereluctant choice is made to drop a case in such circumstances.

– Integrity tests: The use of such tests was a very new step forthe investigators involved in Othona. Both random tests (i.e.,presenting officers with the opportunity to commit petty theft)and directed tests (i.e., those based on intelligence gatheredagainst an officer suspected of already being corrupt) wereused. This was also an area where advice was soughtconsistently from the CPS, since it would have been too easyto provide integrity tests that might have been ruled unlawfulin subsequent court cases.

All such tests need to be– Intelligence-led (i.e., based on actual intelligence supporting

suspicions of illicit activity, as opposed to just “fishing” forproof of some wrongdoing);



– Essentially passive (i.e., not acting in ways that could beinterpreted as agent provocateur behavior); and

– Proportionate (an officer suspected of involvement in cannabistrafficking, for example, should not be tempted with integritytests involving heroin or other more dangerous drugs.)

Police record keeping

The Anti-Corruption Unit found, in the earlier cases relating toOthona, that senior investigating officers were unable to refer to anydetailed records of policy decisions that had been made by otherinvestigating officers. When senior investigating officers were cross-examined in court, they often had a good recollection of why certaindecisions had been made. But they were often left without clear detailsas to why these decisions had been taken. Defense counsels oftenjumped on this and, in some cases, created enough doubt in the mindsof juries to gain acquittals.

As a result, MPS detectives now keep a very complex andsystematic set of detailed records for each investigation. These arekept from the day an inquiry is launched, and are shared in full withthe CPS.

Disclosure

In major criminal investigations, the MPS now always appointsa single disclosure officer to work with the CPS. The CPS now alsoappoints its own disclosure officers. This helps greatly in the earlydetection of potential public interest immunity issues. This also helpsminimize the ability of police defendants to exploit their ownknowledge of details relevant to the case to embarrass or discredit theprosecution.


61

Appendices

Appendix 1Appendix 1Appendix 1Appendix 1Appendix 1..... List of participants

Country delegations

Bangladesh

Mr. Ruhul QUDDUSAdvocateSupreme Court of Bangladesh155, Green RoadDhaka 1205, Bangladesh

Mr. Azam MUHUMMEDSenior Information OfficerMinistry of Science and Information & Communication TechnologyRoom # 325, Building # 6, Bangladesh SecretariatDhaka, Bangladesh

People’s Republic of China

Mr. Hairong CUIDeputy Director GeneralDepartment of Case ReviewMinistry of SupervisionA2, Guang An Men Nan JieXuan Wu District,Beijing 100053, China

Mrs. Ning WANGSection ChiefForeign Affairs Department Ministry of SupervisionNo. 41 Ping’anlixi StreetXicheng District, Beijing 100813, China



Cook Islands

Mrs. Janet MAKISolicitor GeneralCrown Law OfficeP.O. Box 494,Rarotonga, Cook Islands

Mr. Maara TETAVADeputy CommissionerPoliceP.O. Box 101Rarotonga, Cook Islands

Fiji Islands

Mr. Timoci ROMANUState ProsecutorOffice of the Director of Public ProsecutionsP.O. Box 3606BA,Fiji Islands

Mr. Josaia WAQAIVOLAVOLAState ProsecutorOffice of the Director of Public ProsecutionsP.O. Box 2355Government BuildingsSuva, Fiji Islands

India

Mr. Bhure LALSecretary (Coordination and Public Grievances)Cabinet SecretariatGovernment of India

Mr. U.S. MISHRAIPSSpecial DirectorCentral Bureau of Investigation


Appendices 63

Mr. Bhaskar KHULBEDirector, Department of Personnel and TrainingMinistry of Personnel,Public Grievances and PensionsRoom 19A, North Block,New Delhi, India

Mr. ABHAYDirectorTraining Academy, GhaziabadCentral Bureau of Investigation, India

Mr. J.S. WADIADeputy Legal AdvisorCentral Bureau of InvestigationGovernment of IndiaNew Delhi, India

Mr. Mahendra KUMARSenior Public ProsecutorCBI AcademyGhaziabad, India

Mr. P.V.K. Ramana PRASADAdditional Chief Legal AdvisorAnti-Corruption Bureau, Andhra Pradesh

Mr. Prasan Kumar PANISpecial Public ProsecutorVigilance Department, Orissa, India

Indonesia

Mr. Muhamad AMARIHead of Sub-DirectorateAttorney General’s OfficeJl. Sultan Hasanuddin no. 1, Jakarta Selatan, Indonesia



Mr. Muhamad Rahman RITZAInspectorate General, Ministry of FinanceHuman Resources DepartmentJl. Drive Wahidin no. 1, Jakarta Pusat,Indonesia

Kazakhstan

Mr. Askhat MUKATOVSenior Prosecutor, General Prosecutor OfficeDepartment for the Control of Legality of Activity of State BodiesOffice 50673a Seyfullin Str.Astana 473000, Kazakhstan

Mr. Daulet SHANTAYEVHead of Division of Courts and Institutions of JusticeState Legal Department, Presidential AdministrationOffice 306a11 Beibitshilik Str.Astana 473000, Kazakhstan

Kyrgyz Republic

Mr. Asan KANGELDIEVProsecutorGeneral Prosecutor OfficeOrozbekova 72720300 Bishkek, Kyrgyz Republic

Malaysia

Mr. Ratha Kirushnan AL K. RAJARETNAMHead of General Investigation BranchAnti-Corruption Agency Malaysia7th Floor, Block D, Parcel DFederal Government Administrative Centre62505 Puttrajaya, Malaysia

Indonesia (continued)


Appendices 65

Mr. Ahmad BIN MANDUSDeputy Director of Investigation DivisionAnti-Corruption Agency Malaysia7th Floor, Block D, Parcel DFederal Government Administrative Centre62505 Puttrajaya, Malaysia

Mongolia

Mr. Tsegmid ARVINBUUDAISenior Inspector of the Administration DepartmentNational Police Agency of MongoliaSambuu Street 18Ulaanbaator City, Mongolia

Ms. Ulambayar ERDENETUYASupervision ProsecutorStrategic Planning and Foreign Affairs DepartmentThe State General Prosecutor ’s OfficeChingeltei district, Banga toiruu 15/1Ulaanbaator 210646, Mongolia

Nepal

Mr. Binod Kumar GAUTAMInvestigation Officer (Law)Commission for the Investigation of Abuse of Authority (CIAA)Babar Mahal, Kathmandu, Nepal

Mr. Gobinda Bahadur SHRESTHAInvestigation Officer (Technical)Commission for the Investigation of Abuse of Authority (CIAA)Babar Mahal, Kathmandu, Nepal



Papua New Guinea

Mr. Thomas ELUHDirector of Police ProsecutionsPolicec/o Police HeadquartersP.O. Box 85Konedobu, Papua New Guinea

Mr. Chronox MANEKPublic Prosecutor of Papua New GuineaOffice of the Public ProsecutorDepartment of JusticeP.O. Box 662Waigani NCD, Papua New Guinea

Philippines

Mr. Humphrey T. MONTEROSODirector of the Prosecution BureauOffice of the Special ProsecutorOffice of the Ombudsman5th Floor, Sandiganbayan Centennial BuildingCommonwealth Avenue, DilimanQuezon City, Philippines

Mr. Cornelio L. SOMIDOSpecial Prosecution OfficerOffice of the Special ProsecutorOffice of the Ombudsman5th Floor, Sandiganbayan Centennial BuildingCommonwealth Avenue, DilimanQuezon City, Philippines

Vanuatu

Mr. Noel AMKORIInspectorVanuatu Police ForcePMB 014Port Vila, Vanuatu


Appendices 67

Mr. Eric CSIBASenior Legal Officer and Acting PublicProsecutorPublic Prosecutors OfficePMB 035Port Vila, Vanuatu

Experts

Mr. Bernard BERTOSSAFormer Attorney GeneralGenevaSwitzerland

Mr. John DEMPSY-BRENCHDetective Chief InspectorNational Crime SquadUnited Kingdom

Mrs. Eva JOLYFormer Investigative Magistrate in FranceSpecial Counsellor to the Norwegian GovernmentMinistry of Justice and the PoliceNorway

Mr. S.K. SHARMADirector of ProsecutionCentral Bureau for InvestigationIndia

ADB/OECD Secretariat

Ms. Gretta FENNERManager, Anti-Corruption Initiative for Asia-PacificAnti-Corruption DivisionOrganisation for Economic Co-operation and Development (OECD)2, rue André PascalF-75016 Paris, France



Mr. Jak JABESDirector Governance and Regional Cooperation DivisionRegional and Sustainable Development DepartmentAsian Development Bank (ADB)P.O. Box 7890980 Manila, Philippines

Mrs. Enery QUIÑONESHead, Anti-Corruption DivisionOrganization for Economic Co-operation and Development (OECD)2, rue André PascalF-75016 Paris, France

Observers

Mr. Sam COOPERRegional Anti-Corruption AdvisorAmerican Bar Association Asia Law InitiativeKenan Institute OfficesQueen Sirikit National Convention Center2nd Floor, Zone D, Room 201/260, New Ratchadapisek RoadKlongtoey, Bangkok 10110, Thailand

Mrs. Helle KLEMAssistant Director GeneralDepartment for Legal AffairsMinistry of Foreign AffairsP.O. Box 8114 Dep.0032 Oslo, Norway

ADB/OECD Secretariat (continued)


Appendices 69

Appendix 2.Appendix 2.Appendix 2.Appendix 2.Appendix 2. Program

10.00–10.30(plenary)

Welcoming remarksMr. U.S. Mishra, IPS, Special Director, CentralBureau of Investigation

Inaugural AddressShri Bhure Lal, Secretary (Coordination and PublicGrievances), Cabinet Secretariat, Government ofIndia

IntroductionMr. Jak Jabes (ADB) and Mrs. Enery Quinones (OECD)

Introduction roundtable

Theme 1: Prosecution standards

The independence of public prosecutors is of crucial importance inorder for them to prosecute without obstruction. Many factors may,however, interfere in, or influence, the decision to launch criminalproceedings: considerations of national economic interest, thepotential effect of a proceeding on relations with another state, orthe identity of the natural or legal person possibly involved in the case.

Consequently, it is important to define rules and standards that allowprosecutors, in the exercise of their power to prosecute, to be freefrom this type of influence or interference. Participants are thereforeinvited to discuss and compare the standards and policies governingtheir work and the types of obstacles that might challenge theirindependence and effective prosecution of corruption cases.

DAY 1

Opening



General prosecution standards

10.30–11.30(plenary)

Key presentationMrs. Eva JolyFormer InvestigativeMagistrate, France

CommentsMr. S.K. Sharma,Director ofProsecution,CBI, India

Discussion andQuestions

The first session will discuss anumber of key issues of whichprosecutors should be particularlyaware to avoid, to the extentpossible, being unduly influencedin the exercise of their function andthus ensure independent andefficient prosecution of corruptionand bribery. The need for, and thecontent of, clear and conciseprosecution policies and guidelinesto ensure credibility of proceduresand consistency of treatment willalso be addressed.

DAY 1 (continued)

Prosecution standards in the context of decisions to charge publicofficials or persons with strong economic or political influence

11.45–13.00(plenary)

Key presentationMrs. Eva Joly

CommentsMr. S.K. Sharma


Prosecution for corruption andbribery may present particularlyacute concerns in cases where theprosecuted person has strong politi-cal or economic influence, such asa senior public official or a high-level executive manager. Seniorpublic officials may have access tomeans of influencing the prosecu-tor, whether directly, for instance byremoving the prosecutor, orindirectly, by affecting theprosecutor ’s work environment.Persons from the corporate sectorwho have important economicinfluence may also have access tomeans of influencing a prosecutorsuch as their network of contactsin the public administration orprivileged access to the media. This


Appendices 71

session will focus on proceduresand possible prosecutorialapproaches when a public officialor a person with strong economicinfluence is the subject of an inves-tigation and prosecution of bribery.

DAY 1 (continued)

Case Study 1

14.00–14.15(plenary)

Presentation ofcase studyMrs. Eva Joly

Presentation of the main featuresof the case study by the expert whoprepared the study.

14.15–15.45(focusgroups)

Case study workin three focusgroups

16.15–17.30(plenary)

Report to theplenary



DAY 2

Theme 2: Cooperation between law enforcement agencies

Well-functioning relations between the different law enforcementagencies involved in prosecuting corruption are key to obtainingsufficient evidence and information and to effectively prosecutingsuch offenses. Particular attention should in this context be paid tothe interaction between prosecutors and police services wheresometimes-lengthy procedures for requests by prosecution servicesfor police intervention can impede the efficiency of enforcementand might provoke the disappearance of valuable evidence. Goodworking relations between police and prosecution services becomeparticularly important in light of the complex nature of corruptionoffenses. In some cases it might become necessary, in order toeffectively prosecute corruption, to look at other offenses such asmoney laundering, accounting offences, or tax fraud. Therefore, well-functioning cooperation with specialized services, such as financialintelligence units, is a key element in the effective prosecution ofcorruption. A second element in this context relates tocommunications and referrals from public administration. Thisexchange of information often opposes reporting requirements,which determine when officials in the public administration mayrefer information to police or prosecutors, to the need for safeguardsagainst referring otherwise privileged or confidential information.

Cooperation between prosecution and police services

09.00–10.30(plenary)

Key presentationMr. John Dempsy-BrenchNational Crime Squad,United Kingdom



To establish good working relationsbetween prosecution and policeservices, some countries haveopted to attach specialized policecells directly to prosecutionservices, while others addressthis issue by establishing simpli-fied procedures regulating therelation between prosecutors andpolice services or by establishingcentralized anti-corruption agen-cies. Depending on the institu-tional and cultural environment,


Appendices 73

DAY 2 (continued)

both systems can be efficient,since they establish clear andconcise rules defining the proce-dures for cooperation betweenthe involved actors.

Communications and referrals from public administration

11.00–12.30(plenary)

Key presentationMr. S.K. Sharma

CommentsMr. BernardBertossa,Former AttorneyGeneral of Geneva,Switzerland


Reporting obligations for publicservants, combined with mea-sures to protect their job and per-sonal security, can be a usefultool in achieving efficient infor-mation sharing and making allpublic authorities, in particularthose working in sensitive areas,aware of the need to inform thepolice and the prosecutionservices of possible cases ofcorruption coming to theirknowledge in the exercise of theirfunctions. However, this obliga-tion might conflict in certaincases with the duty of confiden-tiality that applies to certainpositions. For such cases, clearrules can help find a compromisebetween these two conflictingresponsibilities.

Case Study 2

14.00–14.15(plenary)

Presentation of casestudyMr. John Dempsy-Brench

Presentation of the main featuresof the case study by the expertwho prepared the study.



16.15–17.30(plenary)

DAY 2 (continued)



Case study work inthree focus groups


Appendices 75

DAY 3

Theme 3: Mechanisms for gathering evidence abroad

Whereas borders do not create barriers for criminals, they dopresent obstacles to authorities that are prosecuting offenses.Criminals often have access to enhanced methods of travel andcommunication, through which they can flee from detection andprosecution and conceal the evidence of and profits from theircrimes. As criminals continue to perfect their techniques and arequick to take advantage of national boundaries to shieldthemselves from justice, law enforcement authorities throughoutthe world must unite to combat this common threat and beprovided with a system of principles and procedures that allowsthem to operate efficiently in a world where transnational crime isgrowing.

Formal systems for providing and obtaining legal assistance

09.00–10.30(plenary)

Key presentationMr. Bernard Bertossa


Discussion andquestions

The first half of this plenarysession will discuss the varyingprinciples that apply to theprovision of mutual legalassistance. In particular,structures that currently seem toimpede appropriate and efficientprovision of MLA, and remediesagainst these possibleimpediments, will be discussed.

Informal networking

11.00–12.30(plenary)

Key presentationMr. Bernard Bertossa

CommentsMrs. Eva Joly

Discussion andquestions

One of these remedies, to befurther discussed in this secondhalf, are informal networks ofcontacts, which can facilitatecooperation between relevantauthorities in different countriesin the region and thus facilitatethe efficient provision ofnecessary mutual legalassistance.



Case Study 3

DAY 3 (continued)

14.00–14.15(plenary)

Presentation of casestudyMr. Bernard Bertossa

Presentation of the main featuresof the case study by the expertwho prepared the study.


Case study work inthree focus groups

16.15–17.30(plenary)


Follow-up and conclusions

17.30–18.00(plenary)

Mr. Jak Jabes (ADB)and Mrs. EneryQuiñones (OECD)

The final session will aim tosummarize the main findings ofthe discussions, presentations,and case study work during theseminar. Furthermore, theSecretariat will propose a formatfor a seminar report to facilitatereporting back to local authoritiesand staff by the participants.Participants are also invited tosuggest a possible follow-up tothis seminar on the national,subregional, or regional level.


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