Investigations into White‐Collar Offences and the ‘Sick Man’ of France
| DOI | https://doi.org/10.1108/eb025918 |
| Pages | 37-51 |
| Published date | 01 March 1999 |
| Date | 01 March 1999 |
| Author | Peter Johnstone |
| Subject Matter | Accounting & finance |
Journal of Financial Crime — Vol. 7 No. 1 — Analysis
Investigations into White-Collar Offences and the
'Sick Man' of France
Peter Johnstone
In England and Wales the Crown Prosecutor is a
lawyer who is independent from the investigation
and is charged with assessing evidence and evaluating
whether a prosecution should proceed or not. The
CPS is intentionally authorised to override the
decisions of the police to curb any potentially over-
zealous investigations and evidence gathering that
might subsequently tarnish the standards of proce-
dure in the courts when applying the criminal law.
The increasingly burdensome rules of disclosure
have made demands on the CPS which are akin to
the overall requirement on the investigating magis-
trate of civil law jurisdictions to find the truth by
examination of the prosecution and defence evidence.
The recent moves to return a limited number of
lawyers to police stations is a further indication that
the future role of the CPS may include an active
rather than solely passive role in evidence gathering.
The Serious Fraud Office are directly involved in the
investigation and prosecution of complex frauds.
This office has statutory and judicial authority to con-
duct investigations which follow an inquisitorial
rather than accusatorial model. The juge d'instruction
in France has authority to direct and control police
investigations and subsequently to compile a dossier
of evidence for presentation before a trial court.
This paper points out that there are close parallels
emerging in pre-trial procedures in England and
Wales and in France and the criticisms of the role
of the investigating magistrate, the 'sick man', may
hold lessons to be learnt for investigators and prose-
cutors within this jurisdiction.
THE SITUATION IN ENGLAND AND
WALES
It is the case that the Crown Prosecutor is increasingly
becoming aligned to the judicial office of an investi-
gating magistrate rather than the public prosecutor
of the civil law countries of mainland Europe. The
CPS has the authority to decide on the appropriate
charge, to be involved in the sentencing process
by means of the facility to comment on unduly
lenient sentences,1 to withdraw proceedings where
a prosecution would not be in the public interest
and to comment on the mode of trial. All these
provide the opportunity for the prosecution to be
inadvertently involved in the sentencing process by
determining the severity of matters to be brought
to trial which is reflected in the sentences these
offences carry, and also by proposing trial at the
Crown Court where the sentencing discretion of
the trial judge is not restricted.
Those cases that are straddled between being suita-
ble for investigation and prosecution by the SFO or
further investigation by the police and prosecution
by CPS are discussed at monthly meetings of the
Joint Vetting Committee of the SFO and the Fraud
Division of Central Casework. The overriding
criteria is not the amount of loss but whether the pro-
visions of s. 2 of the Criminal Justice Act 1988 are
required to be used to effect a successful investigation.
The Fraud Division have no statutory powers to
bridge the Philips Principle2 and therefore are not
permitted to require a suspect to attend their officers
to answer questions relating to the allegation. If it is
the opinion of the Fraud Division that these specific
powers would be not only beneficial but crucial to
the effective investigation of the case then they will
request that the SFO take over that file.
What is unique about the SFO is that, unlike CPS
cases and those investigated by the Inland Revenue,
DTI, Customs and other government departments,
the SFO investigate and prosecute. There is no
separation of powers. The objectives of the SFO are
to develop a coherent approach to the investigation
of fraud, develop expertise in specialist areas suscepti-
ble to fraud such as stock exchange fraud, establish
the efficient use of the powers conferred on the
office by the CJA 1988 and present cases in an acces-
sible way in order that juries can understand the
issues. The SFO is accountable to the Attorney
General and Parliament through the Director.3
Acceptance of cases is based upon whether the
direction of the investigation is best placed in the
hands of those who will be responsible for the subse-
quent prosecution. In reality this means those matters
that are either particularly complex or involve large
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