Corporate Fraud: Civil Disclosures in Criminal Proceedings

Publication Date01 Mar 1994
AuthorPeter Paulden
DOIhttp://doi.org/10.1111/j.1468-2230.1994.tb01939.x
The
Modern
Law
Review
[Vol.
57
over this pre-trial pha~e.~’ This requires that the courts guard against procedural
unfairness in the pre-trial phase and in particular against the abuse of interrogation
of suspects. Abuses occur here when individuals are not provided with certain key
safeguards such as the right to legal representation and the right to be given some
indication of the case against them. In the absence of these safeguards, there is a
risk that individuals will be
so
intimidated that they may provide false information.
Even if in individual cases there may be no risk of this, it is, arguably, still the
responsibility of the courts to see that adequate standards of investigation are
maintained.
This suggests that the courts have an important role in upholding the right of
silence, but as a procedural protection for individuals rather than as a political
principle which must be adhered to in all contexts. Instead of the courts upholding
a strong presumption against a statute taking away the general right of silence, the
courts should be more concerned to uphold a strong presumption against a statute
taking away the right of silence in conditions of procedural unfairness and at the
trial stage when the prosecution bears the burden of proving the accused’s guilt.
This offers a way out of the equivocal attitude which the courts have hitherto
displayed towards the right of silence and suggests an approach towards the right
which is consistent with the contemporary role of the courts in the criminal
process.
Corporate Fraud: Civil Disclosures in Criminal
Proceedings
Peter
Paulden
*
The investigation and prosecution of corporate fraud is an area of the law which
has attracted considerable recent notoriety. To some extent this notoriety has
reflected the increasing excesses of corporate mismanagement as well as the much
publicised difficulties which fraud prosecutions have encountered. At the same
time, concern has been expressed over the role and powers of the Serious Fraud
Office
(SFO)
established by the
1987
Criminal Justice Act.’ Much of the
controversy has focused on the SFO’s powers of questioning under section
2(2),
the abrogation of the right of silence which these powers entail and the exercise of
these powers in respect of persons who have already been charged with criminal
offences. Given the importance of these issues, it is not surprising that less attention
has been paid to other aspects of the
SFO’s
powers, in particular its powers under
41
*Lecturer in Law, University of Hull.
See D. Feldman, ‘Regulating Treatment of Suspects in Police Stations: Judicial Interpretations of
Detention Provisions in the Police and Criminal Evidence Act 1984’ [1990] CLR 452.
1
The
1987
Act,
s
1
empowers the SFO to investigate andlor prosecute alleged offences involving
serious
or
complex fraud. Under
s
2(2), the SFO may by written notice require a person under
investigation
(or
any other person having relevant information)
to
answer questions
or
furnish
information. Under
s
2(3), the
SFO
may by written notice require a person under investigation
or
any
other person to produce specified documents relating
to
matters relevant
to
the investigation. Under
s
2(13), failure without reasonable excuse
to
comply with these requirements is made a summary
offence.
280
0
The
Modern
Law
Review Limited
1994

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