A Development in the Tort of Private Nuisance
| Date | 01 March 1994 |
| DOI | http://doi.org/10.1111/j.1468-2230.1994.tb01940.x |
| Author | Elizabeth Cooke |
| Published date | 01 March 1994 |
March
19941
Corporate Fraud
cases) the
SFO
is able to make use of civil disclosures as evidence. This strategy,
however, has its drawbacks. It presupposes that an incriminating civil
investigation will have been completed before criminal proceedings are initiated. It
may also have the effect of unduly prolonging the criminal in~estigation.~’ Given
the protracted nature of
SFO
inquiries, the logic of the present strategy appears
open to question. If the
SFO
is empowered to use enforced civil disclosures as
evidence, does it make sense to preclude the equivalent use of section
2(2)
statements? The difficulty arises from the fact that the section
2(2)
powers, as
made clear in
SFO
v
Smith,38
may be exercised where the person concerned has
been charged with offences. Once the prosecution process is under way, it might
seem unfair and oppressive to require persons facing trial to make incriminating
statements which could be used as evidence. In the present cases, the Court of
Appeal was at pains to emphasise that the use of the enforced civil disclosures did
not involve any element of compulsory incrimination after charge. The Royal
Commission, it may be noted, concluded that the
SFO’s
existing powers had
proved effective and that the section
2(8)
restriction should remain.39 Perhaps the
Royal Commission was wise to urge caution. Any extension of the
SFO’s
powers,
which permitted incriminating statements obtained during post-charge questioning
to be used as evidence, would probably infringe the right to a fair trial under
Article
6
of the European Convention on Human Rights.40
A
Development in the
Tort
of
Private Nuisance
Elizabeth
Cooke
*
Background: The Gap in Domestic Violence Law
It is well known that where violence or harassment occurs between persons who
are neither married nor ‘living with each other in the same household
as
husband
and wife’
’
the protection of legislation specifically tailored to domestic violence
is not available. This is
so
even if the parties are in a close relationship such as
mother and son, a gay couple, or
a
man and woman who have had a sexual
37
The difficulty arises where incriminating
s
2(2)
statements are made at early stages of
SFO
investigations and the
SFO
has
to
rely on pending civil investigations to produce incriminating
disclosures as evidence. Criminal charges may have
to
await the completion of the civil investigations.
38
See
n21.
39
See Report
of
Royal Commission, ch
4,
para
29
(p
56).
40
In
Funke
v
France
[
19931
1
CMLR
897,
the European Court referred in the context of Article
6
to
‘the
right
of
anyone charged with a criminal offence to remain silent and not to contribute to incriminating
himself.
’
The case concerned a conviction for not disclosing potentially incriminating bank statements
to customs officials, who were investigating
F
for alleged
tax
offences. The decision that Article
6
had
been infringed may seem surprising, since
(1)
F
was not being required to incriminate himself
in
respect
of
the offence charged,
viz
the non-disclosure
of
the documents,
(2)
the issue
of
self-
incrimination related to the alleged tax offences in respect of which
F
was never formally charged.
Does this decision have implications for the
SFO’s
exisring
powers under
s
2(2)?
*Lecturer in Law, University of Reading.
1
should like to thank my colleague David Wilde for his helpful comments on an earlier draft on this note.
1
Domestic Violence and Matrimonial Proceedings Act
1976,
s
l(2).
0
The Modern Law Review
Limited
1994
289
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