Page 155 - Deception at work all chapters EBook

156 Deception at Work

Other interpretations

There have been a number of other decisions by the European Court of interest in the fraud
area. They mostly centre on Article 6 and the right to a fair trial where the main stumbling
block has been the failure by law enforcement agencies to produce undercover investigators
and confidential informants as witnesses at criminal trials. Defendants have argued (some-
times successfully – but with minimal compensation) that by being unable to cross-examine
confidential informants, their trials were not fair.

Human Rights Act 1998
Background and scope

This Act came into effect in England on 2 October 2000 and incorporates most of the provi-
sions on the European Convention on Human Rights. English Court decisions will be influ-
enced by Strasbourg which is still the court of final appeal once all domestic remedies have
been exhausted.

Again the Act is primarily directed at government agencies or ‘public authorities’ in their
relationships with the private lives of citizens. The objective of the legislation is said to be ‘to
strike a fair balance between the demands of the community at large and the protection of
individual Human Rights’. Any interference with these rights must be in accordance with the
law (i.e. ‘lawful’), necessary and ‘proportionate’.

If ‘public authorities’ break the law, there is an extensive range of remedies available, in-
cluding judicial review, injunctive relief and damages. For other than public authorities, the
penalties for infringement are limited to reinstating the position had the Claimant’s rights
not been violated. There is no criminal penalty and it should be remembered that there is a
great deal of difference between someone making a complaint – often with the intention of
frustrating an investigation – and succeeding with it.

Companies and private citizens have never been convicted of any human rights violations and
arguably cannot be

Vertical and horizontal interpretations
The scope and extent of human rights legislation is endlessly arguable (especially if the time
spent doing so is subject to fees) and some lawyers say that there are two possible interpreta-
tions. The first is known as ‘vertical’, which means that violations can only be committed by
‘public authorities’ and thus the bucket of mud only spills downwards.

The second interpretation is known as ‘horizontal’ and this – fully supported by the sandal-
wearers – means that private citizens and companies can interfere with the rights of others (i.e.
the laws do not just apply to public authorities). Under this interpretation, the bucket of mud
flies in all directions and covers everyone who happens to be around. The ‘horizontal’ point
has been raised in both criminal and civil cases and has generally had little impact except in
the lower courts and industrial tribunals. Interestingly the Regulation of Investigatory Powers
Act 2000 is based on a vertical interpretation of human rights.

There is no doubt that the Human Rights Act 1998 will be influential in supporting the
dreaded horizontal interpretation in that it:

• imposes a duty on public authorities to act in a way which is compatible with convention
rights;