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Planning Investigations and Legal Background for Tough Interviews 171

In some cases, and the brutal murder of Rachel Nickell on Wimbledon Common is a tragic
example, investigators may approach the suspect on a pretext to gain his trust in the hope of
discovering real evidence, such as the knife used or some feature of the crime known only to
the perpetrator. The trial judge in Rachel’s case was unjustly scathing over the approach used
by the police and excluded damning evidence on grounds that were clear to him but less clear
to anyone else. This case aside, investigators can infiltrate criminal groups with the resulting
evidence being admissible.

However, whatever the circumstances, undercover investigations, infiltration and pretexts
must be handled with care and under advice of experienced litigation lawyers. If the under-
cover investigator or confidential informant is not prepared to give evidence in a criminal
trial, that fact should be made clear to the prosecuting authorities at the outset as the defend-
ant’s inability to cross-examine him may result in a breach of the fair trial principle under the
European Convention of Human Rights.

LIBEL AND SLANDER

People who are the subject of investigation sometimes threaten to take action because they
claim that they have been libelled or slandered. In most cases, these threats should be viewed
as being no more than a ploy to throw the investigation off course.

Libel is an untrue defamatory statement in a permanent form: usually in writing. Slander
is oral libel and is governed by similar rules. It is obvious that anything which is true cannot
be libel or slander.

An accusation made directly to a suspect that the interviewer believes him responsible
for dishonesty is not slanderous. Similarly, an unproved, or even incorrect, allegation to a
potential witness will not normally be actionable because it is privileged under the common
business interest rule.4 However, an unproved and untrue defamatory statement, for example,
that someone is a thief, made in public or to a person who does not have a common business
interest, may be actionable.

In proceedings for libel or slander, the claimant must establish that the words used about
him were untrue, defamatory and lowered his estimation in the minds of right thinking peo-
ple (i.e. not readers of the Sun). Interestingly, in the extremely nauseating fight between Neil
Hamilton and Mohamed Fayed it was argued that neither could be defamed, as their reputa-
tions were already in tatters. This is an interesting concept, but not relevant to fraud.

In any case the claimant has to prove that the statement was made to at least one person,
other than the defendant’s wife, and that it caused him some quantifiable damage. There is
a vast difference between threatening to take action for alleged defamation and succeeding.
Besides that, during the discovery and legal processes, which result from the libel action, the
claimant may be compelled to produce records that destroy his case and provide evidence of
other transgressions. Threatening action for libel is easy: seeing it through to success can be
a very unwise move for the crook.

There are a number of defences to actions for libel and slander:

• Justification: The burden of proof is on the defendant to show that the statement was sub-
stantially true. For example, in the British case of the Observer v Redgrave the general article was
substantiated although some words could not be justified. The court determined that libel had not

4 See ‘Information Privileged against Disclosure’ earlier in this chapter