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FOR THE GREATER GOOD?

“Sometimes we need the fog to remind ourselves that all of life is not black and white.”

Anon

He walked past those corridors, into the courtroom with evidence. Documents that could have stopped, or stayed at the very least, the construction of a multi-billion flagship project. He walked out with a bitter taste in his soul.  The final ruling was not in his favor. Why? The evidence was illegally obtained as they were confidential.

But, wasn’t his motive sincere? Didn’t the evidence overwhelmingly prove that the SGR project did not follow due process? “Why should the criminal go free just because the constable has blundered?”

It is a given that the current legal system relies heavily on evidence to pronounce itself on certain matters. A fact that can be extrapolated to the dealings of the corporate world too. Depending on the complexity and gravity of the charge, the weight of the evidence can either ‘make-or-break’ the case. 

Investigators have a variety of techniques to gather evidence, with some resorting to rather clandestine measures in what we call Entrapment.


A Question of Morality…. Or Not?

While other jurisdictions allow for the employment of honeytrap techniques to lure, and in so doing, obtain evidence; evidence obtained through entrapment in Kenya is actually inadmissible.

Applying “clandestine means to procure [evidentiary] information” would cast a substantive doubt on the reliability of such evidence. It is seen as a violation to the accused’s fundamental right to privacy while giving the State undue advantage over the accused that it ought not to have. 

On the surface then, entrapment calls to question the “moral reprehensibility” of State conduct in obtaining evidence. What if the evidence is so overwhelming that ignoring it would put public and national interests at stake? 


Entrapment Vs Opportunity:

Would the person still commit the crime anyway without the inducement of a third party?

The company is almost going on its knees. One is then pressed to find out the reasons behind this injury and an urgent need to take immediate action immediately kicks in. However, there is no solid evidence just yet. Pressure is hence applied to identify and subsequently mitigate this risk. As a last resort, one decides to lay a trap for potential suspects using covert surveillance or promise of reward, and finally they fall for it. They are then dismissed for misconduct.

In other jurisdictions such as South Africa, this typical scenario can be defined as legal or illegal entrapment depending on certain factors. 

Did the trap go beyond just giving opportunity?

Was there an element of repetitive luring?

Was the trap exploiting human characteristics or certain circumstances (pleas of sympathy, need, pleasure, pain)

Is the trap justified under reasonable suspicion? Were other less restrictive means used?


The Dilemma We Don’t Want to Admit

Apart from the moral dilemma entrapment poses, evidence obtained in this manner has a huge effect on the entire trial process.

On one side, the prosecution has the onus of proving what they allege, bearing in mind due process has to be followed. On the other side, the defense has to ensure they walk away scot free. For investigators who employ entrapment, many will agree that sometimes faulty intelligence is given. When more inhumane entrapment techniques are applied, anything can be said so as to make the pain stop. 

On the flipside, techniques that promise reward tamper with the need to achieve a factually correct outcome. The evidence obtained could still be faulty because other crucial matters will be overlooked and biased. It could be the entire truth or half-truths, but that fabrication makes such evidence inherently unreliable.

That’s where derivative evidence comes in. As a result of original faulty evidence, new information can be procured which could piece the puzzle. Can this be dismissed too? In the Kenyan scene, yes it can. However, if the prosecution can establish reasonable grounds, then they can be admitted depending on the weight of public interest in the investigations as well as if the evidence can be corroborated or it was the sole evidence in the case.

It is a tight balance between safeguarding the interests of justice and playing by the book. Compelling reasons seem to surface every so often, and while in televised crime scenes, morality is seen to be pushed toward the edge for the greater good of catching the bad guys, in reality a fair trial must be ensured no matter what.


So What Now?

“There are many legal rules, concepts, principles, doctrines and protocol investigators must be attentive to as they work through an investigation.”

While in criminal cases the rule is pretty much clear, civil matters do not enjoy the same clarity. In this case it is better to be safe than sorry.

In conducting integrity checks or even workplace investigations, companies should bear the legal and business implications of the techniques used to gather evidence to identify and mitigate potential misconduct, in view of criminal trials. While entrapment seems alluring, it may easily blow back, hence will greatly affect the brand of the organization.

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