Levels of Playing Field

Publication Date01 February 1995
Date01 February 1995
AuthorJohn Breslin
SubjectAccounting & finance
JournalCrime Vol. 3 No. 1 Investigations
Levels of Playing Field
John Breslin
The effectiveness of an investigation into any
criminal offence is obviously vital because it deter-
mines the quality of the evidence available for the
prosecution at trial. The way in which the investiga-
tion is conducted is also vital because mistakes can
be made that affect the operation of the due proc-
ess of law, the effect of which can be the refusal of
the trial judge to admit certain evidence at the trial.
It can also result in an appellate court overturning
a conviction. The sensation caused by the latter to
those involved in the prosecution must be akin to
winning the World Cup to be informed 12 months
later that a new referee has reviewed a video tape
of the match and discovered a slight infringement
of the offside rule by a player involved in setting
up the winning goal. The cup must now be taken
down from the trophy cabinet and handed over to
the opposing team.
Practitioners will be all too familiar with the
process laid down by their respective domestic
laws under which criminal investigations are to be
conducted. In jurisdictions operating under a writ-
ten constitution, there is, of course, an overarching
system of principles and rules designed to add to
the protection of the accused afforded by the black
letter law enacted by the legislature. Those familiar
with written constitutions will be aware that one
cannot safely interpret the constitution within the
confines of the words contained in it. Inevitably
judges will interpret constitutional imperatives in a
way that can result in a broadening of their scope,
and the additions to the duties on investigators
which are often designed to protect the suspect.
The famous Miranda case in the USA shows how
an expansive judicial interpretation of constitu-
tional rights can add to the steps that need to be
taken by investigators and other law enforcement
In the UK there is, of course, no written con-
stitution. Citizens have traditionally only had such
rights as have been expressly afforded them by
Parliament, which was until the UK's entry into
the European Economic Community the supreme
law-making authority. Written constitutions are
usually a feature of jurisdictions recently freed
from the shackles of an oppressive regime,
whether colonial or home spun. The constitution
is the means by which the people ensure that the
new regime cannot fall into the pernicious habits
of the old. It ensures basic minimum rights for
citizens that are intended to be entrenched in the
legal system for all time. They are inviolate: not
even the organs of
can take them away.
Until recently investigators in the UK were
needed only to worry about adhering to the UK's
own statutory enactments and a rather vague
notion of administrative fairness.1 Investigators
were even allowed
fide oversights in attempt-
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