Managing a hostile court environment: Common challenges and recommendations
- share experiences with hostile court environmentsbee863b1e886 and how these have been navigated;
- understand the perspectives of ‘hostility’ from different perspectives;
- come up with recommendations/ action points for (1) individual prosecutors/ prosecuting teams, (2) the Corruption Hunters Network (3) international (development) partners such as Norad.
This meeting was informed by recurring, common problems when investigators and prosecutors of corruption cases in jurisdictions around the world bring large corruption cases to court. The high-profile defendants in these cases are often well-connected and influential and have the resources to pay the most experienced lawyers to defend them. As part of this, court processes may be deliberately delayed, the opinion of the jury and the judges as well of the public manipulated and in some unfortunate cases, investigators and prosecutors may find themselves personally threatened.
Based on presentations and discussions from previous meetings of the Network, we selected three main challenges that seem particularly prevalent in the investigation and prosecution of corruption cases (bias, delays, and threats), discussed typical manifestations and ways to address them at the individual level, at the institutional level, and what the CHN and other actors could do to support investigators and prosecutors facing hostility.
Cognitive and social psychologists have demonstrated that human beings suffer from a number of biases. Professionals exercising important discretion in deciding about the steps of criminal process are no exception. In white collar crime cases, prosecutors can sometimes find that judges are “biased for the defence”. Typical manifestation of bias in favour of the defence in corruption cases are unjustified or poorly justified delays and conflicts of interest.
Causes for these include:
- High level of discretion powers in combination with confidentiality of some part of the process, independence and weak safeguards of accountability;
- Complexity of a case (amount of work required to learn the relevant law in detail and master the facts may discourage an investigator, prosecutor, and judges from processing a case in a timely manner);
- A lack of competence and skills (not knowing “how to do things” may deter criminal justice professionals from processing a case and/or lead to frequent errors and subsequent appeals and or complaints);
- A “lack of victim” effect results in a more relaxed attitude toward a case timeline;
- Undue pressures on criminal justice professionals and witness(es) in a form of e.g. threat to safety, career advancement or bribery;
- Lack of resources/capacity (e.g. understaffed investigation/public prosecution office and/or court can hinder progress of a case, for e.g. in the gathering and adducing evidence);
- Unbalanced distribution of responsibilities results in much higher pressure on the prosecution relative to the defence;
- Lack of incentives for investigators and prosecutors to take on big, time-consuming cases (complexity and time needed may not be appreciated by superiors);
- Defence lawyers are more likely to find ways to circumvent the sub-judice rule (limitation to while the institutions representing the state more circumspect and tend to observe the rule more.
- Professional (competency and ethical) requirements for prosecutors and judges are much higher than those imposed on defence;
- Tolerance of conflict of interest (e.g. strong reliance on self-evaluation in the judiciary);
- Fear of impact of decision-making (e.g. on career and social standing mainly in case of investigators, prosecutors and judges);
- A lack of established practice (e.g. in transition countries establishing practice/precedence takes a long time; meanwhile the cases are processed at a very slow pace and the system suffers uncertainty and unpredictability); and
- Evolving concept of human rights protection and the continuous testing of this concept by the defence.
For investigators and prosecutors in corruption cases this means
- Thinking through and developing a strategy for a hostile court environment early on in the case. This can mean establishing an early understanding of the case among investigators, prosecutors and judges on how to proceed;
- Identify competent civil society partners who can monitor court processes;
- Building/presenting a strong case (thorough investigation; clarity of facts; establishing and clearly describing all the elements of the crime; and stating legal conclusions concisely and clearly);
- Getting evidence on record;
- Avoiding private deals and placing any significant out of court deals on record; and
- Encouraging a culture/attitude of perseverance;
More systemic changes may be needed, too, to keep biases at a minimum:
- Relying on e-based case management systems (interconnected);
- Leaders in law enforcement institutions need to be supportive of those taking on large-scale cases;
- Introducing appropriate performance monitoring and evaluation systems; this can include the development of templates to monitor courts cases as done for example in Nigeria;
- High level of specialization of criminal justice professionals; in some cases, even establishing specialized anti-corruption investigation, prosecutorial, and adjudicating institutions (relevant for countries with weak justice institutions and high-level corruption).
Delays are very common in the judicial process and are not always an indication of foul play or manifestation of bias.
2. Delays: Distinguishing between justified and unjustified delays
Time is usually on the side of the defence: witnesses withdraw or pass away, evidence gets lost, public interest in the case fades. When there is delay it may be difficult to distinguish whether it is justified and unjustified and to prove the latter. Common causes and manifestations of delay are:
- Illness of the defendant (or other important parties to the trial). If continuous, the independent evaluation of the defendant’s health is essential.
- Scheduling conflicts of the defence team. If scheduling conflicts repeatedly delay the trial, it is worthwhile for the prosecution to trail the defence lawyers schedule and timing of cases and keep records in case a complaint needs to be made. Some bar associations have established effective rules against double booking. Third parties can report on delays.
- Witnesses changing their story and/ or are unavailable. This can have multiple reasons that can be identified and addressed to the degree possible. Generally, it is advisable to seek to reduce reliance on witnesses and increase documentary reliance and use documents more effectively, i.e. by providing a clear narrative of their relevance.
- Sudden overflow of documents filed by the defence, or defence wants to look at all the prosecution documents. Here, clear document disclosure guidelines and strong courts (judges) are necessary. Work products and evidence need to be distinguished (and only the latter shared).
- Interim appeals. Time-consuming trials within trials can be avoided bymore extensive pre-trial proceedings and proper case management structures.
- In corruption cases that require a bench or a jury trial, the change of the composition of panels of judges/ jury can send a court case back to the beginning;
- Generally, different causes and manifestations of delays can beregulated in practice guidelines. Among other things, guidelines can establish time limits for the court review of indictments and scheduling of first hearing. There are good international experiences with a system of a single judge who can oversee the whole process of investigation and keep track of delays and the reason for them.
- While difficult for an individual prosecutor to secure, collective efforts should be made to establish periodic monitoring and evaluation of case delays. The report/statistics should be publicly available.
- Access to good practice globally needs to be eased and investigative and prosecutorial aids specific to jurisdictions need to be developed. The experiences of individual law enforcers would be invaluable in this, but it requires discussion and support at an institutional level, i.e. through international fora and support by development partners.
Threats are used not only against witnesses and victims, but also against those handling corruption cases: investigators, prosecutors and judges. Threats can be overt or covertand different types of threats may be applied in combination or sequentially, i.e. in escalation. They can be exerted through the justice system, i.e. by colleagues or superiors, or from the outside.
In some cases, threats may be covert (veiled) such as the promotion to another position (removal from the case at hand). “Good will ambassadors” may recommend to not get too involved in a case and not take any risks, and alert the investigator/ prosecutor of the vested interests they are getting in the way of. It can be difficult to assess whether such actions are actually meant as threats or coincidental, misplaced, but genuine concern.
Outsiders may make the fact known that they are aware of the official and/or private schedule and habits of the prosecutor and their family. The transition to overt threats is fluid here. There may be suspiciously timed break-ins into the office and private space of investigator.
Media, co-opted by the defence might try ‘character assassination’ of the investigator or prosecutor.
Overt threats coming through various communication channels may be difficult to trace to their origin. Often organisations are better equipped to deal with these overt threats and can provide some level of physical protection to both prosecutors and their families. While full-time protection has proven highly effective in some countries, personal protection can also beabused as surveillance.
There are no one-size-fits-all solutions to threats, nonetheless Hunters have tried some of the following actions:
- In early stages of cases, messaging that you are ‘harmless’ or are only interested in a specific aspect of the case and not to more sensitive aspects may mitigate some external pressure.
- Diverting the focus on the single prosecutor/investigator by splitting the case up among several people (depending on the case: keep the core, let others handle parts). Make it known that not only you have the information and that the case will continue regardless of your own fate. Splitting up the case may also bring some ‘quick wins’ that will make further prosecutions easier.
- There is safety in numbers: Recruit more qualified and dedicated prosecutors. Pressure on individual prosecutors becomes less effective, if there are more in the line to take over the case.
- Investigative journalists (off-record) or other outsiders may also have the capacity and interest to continue (parts) of the case.
- A certain degree of collaboration with the media can be essential to keep public opinion interested and accurately informed; this has proven crucial for entire anti-corruption agencies that have found themselves under political pressure.
- Prosecutors and investigators need to be careful in their personal life so as not to make themselves vulnerable to blackmail.
- In acute threat situations, a change of location, even leaving the country for a while, may be advisable. Plans should be in place for the family as well. It may be advisable for the family to leave through a different route so as not to arouse suspicion.
- The personal price is sometimes simply too high and this needs to be considered by the prosecutor him/herself.
- External support can be provided i.e. by embassies speaking out in favour of anti-corruption measures and taking a firm stand of support. The CHN (Norad) has assisted prosecutors in need in the past and there is a need to ensure that support to participants in the network can also be provided in the future. Some members of the network have occasionally issued statements of support, however, that will vary depending on the case and individual need.
- The use of media to cover cases should be explored.
- The International Association of Prosecutors (IAP) has a protocol for prosecutors in difficulty.
- The assignment of Special UN Rapporteur on Corruption might give the international community a focal point and voice to speak out on corruption cases and corruption fighters in need.
- On 26 June 2018 the list of challenges and recommendations was revisited by the group and some small revisions were made.
- By "hostile" we mean biased against the prosecution for any one of several reasons: politics, ignorance of the law or of the damage corruption does, fear for personal safety, or other factor that would interfere with an impartial decision.