We barely knew of the Government’s Asset Recovery Incentivisation Scheme (ARIS) “before now and, in particular, the manner in which it allows the CPS and the police to obtain a percentage of confiscated assets. First introduced in 2006, such arrangements were described as shameful” by James Richardson in Criminal Law Week when providing commentary to the case of R. v. Lambert (Richard) and Walding (Ian Alexander)  Crim.L.R. 476, C.A. In our case, it eventually transpired that the police were hoping to receive 18.5% of an expected £8m in the event of a conviction and confiscation order against the main defendants. We were eventually able to explore in cross-examination what impact this had on the way in which the police had investigated the case, taken witness statements and disclosed material to the defence.
On the 27th February at Bristol Crown Court, the prosecution offered no evidence on all defendants involved in a mortgage fraud after 7 weeks of the trial. The investigation had been conducted by an organisation entitled Zephyr (comprised of members from SOCA, HMRC and five regional police forces). The reasons given in open court for that decision were unexceptional: evidence from key prosecution witnesses (the mortgage brokers) had so undermined the Crown’s case that there was no longer any realistic prospect of conviction. What made the case interesting from a defence perspective was an underlying issue that had been bubbling since a defence s.8 CPIA 1996 disclosure application heard some weeks before the trial started, described by the trial judge as the political disclosure issue”.
One of the key issues at trial involved criticism of the police investigation: undermining material to the Crown’s case had not been disclosed (or had been disclosed very late) and the key witnesses had apparently not been investigated despite obvious concerns, whereas the police had conducted detailed inquiries into the defendants in the dock. The arguments centred on whether these failures were inadvertent or represented a culpable refusal to investigate for fear of discovering material that undermined the Crown’s case and required disclosure. The defence became aware that there may have been an ARIS agreement in the case and sought its disclosure, along with material that ultimately revealed the police had estimated the benefit figure to be in the region of £8m.
Following a hotly contested s.8/PII hearing, the trial judge ordered disclosure of a report on ARIS prepared by the Detective Inspector responsible for the conduct of the police investigation. Evidence given in open court during cross-examination of various senior police officers, including the Detective Inspector who had produced the report, proved illuminating:
We had also submitted a request under the Freedom of Information Act 2000. Once the trial judge had ordered disclosure of the report our solicitors (Bark & Co) received an emailed response. As an FOI response should be publicly available and there were no restrictions imposed upon the provision of this information, we have set out the response below:
I write in connection with your request for information dated 12th December concerning Zephyr.
You specifically asked: “Please could you supply the following information involving Zephyr and Operation Aardvark:
We are unable to answer this part of your request as the information is exempt from disclosure. The exemption applicable to this is Section 31 – Law Enforcement. This is a qualified and prejudice based exemption and as such requires a harm and public interest test to be conducted. Please find this below.
Although FOI is normally applicant blind it is known that this request is from a firm of defence solicitors that will soon be defending a fraud case that may be related to Operation Aardvark. When information is disclosed under FOI it is a disclosure to the world, not just to the individual making the request. Disclosure of this information would not only undermine the court process but the defence team could use this information to affect the outcome of the trial. Disclosure of the requested information would reveal tactical information about Zephyr and their activities and how and when they receive funding.
Factors favouring disclosure of the information If the information is relevant to the upcoming trial, it is likely that some of this information will be disclosed at that point. It is therefore the right of the defendant to be informed of information that may affect or impact on his court case, so that he can better prepare. It is also in the interests of the public that the information is disclosed to show that these police units are open and transparent when it comes to funding. Better awareness of the funding stream may lead to more information from the public Factors against disclosure of the information Under the Criminal Procedure and Investigations Act 1996, the defence can seek all information that is relevant to their case, through the correct court procedure. Disclosure of the requested information outside of this procedure would completely undermine court processes. Disclosure could also reveal the tactical abilities and activities of Zephyr which would hinder the prevention or detection of crime, affecting their future law enforcement capabilities. Zephyr work closely with a number of other organisations and disclosure would affect the partnership approach to law enforcement.
The role of the police service and police units is to prevent and detect crime and protect the communities they serve. The Police service will not disclose information that would jeopardise those vital core functions. Although the police service aim to be as open and transparent as possible, especially about funding, they will not disclose information if it undermines their ability to serve the public in their law enforcement role. Therefore, in this case, the balance lies in favour of non-disclosure of the information. In accordance with the Act, this represents a refusal notice for this part of your request.
Additionally, Avon & Somerset Constabulary also neither confirm nor deny that they hold any other information relevant to your request by virtue of the following exemption:
Section 23(5) – Information supplied by, or concerning, certain security bodies Section 23 is an absolute exemption which means that the legislators have identified that harm would be caused by release and there is no requirement to consider the public interest test.
We felt that this focus on the ARIS agreement and an associated Standard Operating Procedure gave us a credible argument (in conjunction with many other aspects of the evidence and disclosed material) that the prosecution amounted to an abuse of process as there had been a deliberate choice not to investigate certain potential weaknesses with the Crown’s case in order to prevent anything harmful having to be disclosed. We believed that this approach was motivated by the ARIS agreement.
As the prosecution offered no evidence before we were able to argue the point, we shall never know whether the trial judge would have agreed with our concerns.
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