Page 171 - Deception at work all chapters EBook

172 Deception at Work

been committed. Thus if a defendant can prove that the allegations were substantially true,
he will not be penalized.
• Legal professional privilege: Communication between a lawyer and his client is absolutely
privileged (see page [xref])

Thus it is only in exceptional circumstances that the victim of fraud, or someone working
on his behalf, could be successfully prosecuted for slander or libel. However, all Investigators
must act fairly, and respect the rights of those with whom they deal.

TAPE RECORDING

Laws vary from country to country on the legality of tape recording conversations without the
consent of all of the parties concerned. In the USA, covert tape recording is legal in some states
and illegal in others. In England recordings can be made secretly by any party to a conversa-
tion and the resulting tapes are admissible in civil and criminal proceedings.

STATEMENTS AND PROOFS OF EVIDENCE

Statements made by suspects and witnesses are vital in fraud cases and are used by counsel to
lead the witness through his evidence. If he fails to ‘come up to proof’ his statement can be
used to cross-examine him as a hostile witness. In civil cases statements may be read by the
lawyers concerned without the need to call the witness.

All formal statements (whether the witness is called or not) have to be disclosed to the
opposing party but unsigned Proofs of Evidence (obtained in contemplation of legal proceedings
and possibly including the same material as in a statement) are normally protected against dis-
closure by Legal Professional Privilege. Thus in the early stage of most investigations Proofs
of Evidence are preferable to formal statements. Ultimately, lawyers will determine whether
disclosure is necessary.

Under the Criminal Justice Act and the Magistrate’s Court Act 1980, witnesses may make a
statement on a special form which certifies that it is true and correct and on the understanding
if it is untrue they could be exposed to criminal prosecution for perjury. Such statements are
very useful, but should only be used by experienced investigators. An example of the form is
at Appendix 4.

DOCUMENTARY EVIDENCE

General provisions

Documents, which are relevant to the facts in issue, may be produced in court (as ‘exhibits’)
by a witness giving evidence under oath. In most countries, the originals are considered the
best evidence but when these are not available, copies may be admitted.

In some developing and transitional countries, the original documents are vital and, if
they cannot be produced, the evidence is lost forever. Unsurprisingly, there are a lot of docu-
ment-eating dogs and spontaneous combustions in such jurisdictions.

There is no generally available authority given to a fraud victim to demand access to, or to
search for, documents in the possession of third parties. This is the starting point, but there
are some exceptions.