R v Director of Serious Fraud Office, ex parte Smith

JurisdictionEngland & Wales
CourtHouse of Lords
Judgment Date11 Jun 1992

House of Lords

Before Lord Templeman, Lord Bridge of Harwich, Lord Ackner, Lord Lowry and Lord Mustill

Regina
and
Director of the Serious Fraud Office, Ex parte Smith

Right of silence - Serious Fraud Office inquiries - no right after charge

No right of silence after charge in Serious Fraud Office inquiries

The Director of the Serious Fraud Office was entitled to continue to question a person under investigation by him pursuant to the provisions of the Criminal Justice Act 1987 after he had been charged with an offence and he was not entitled to the right of silence.

The House of Lords allowed an appeal by the Director of the Serious Fraud Office from the Queen's Bench Divisional Court (Lord Justice Nolan and Mr Justice Potts) (The Times November 13, 1991; [1992] 1 All ER 730), which had granted Mr Wallace Duncan Smith, on his motion for judicial review of a notice served on him by the director under section 2 of the 1987 Act, a declaration to the effect that before being asked questions after charge a fresh caution should be administered stating that he was not obliged to answer and that the fact of such caution would be a reasonable excuse for refusing to answer within section 2(13).

Mr Sydney Kentridge, QC and Mr Nigel Pleming, QC, for the director; Mr Andrew Collins, QC and Mr David Hood for Mr Smith.

LORD MUSTILL said that the appeal raised an important question on two aspects of what was compendiously, albeit inaccurately, called "the right of silence".

Mr Smith was the chairman and managing director of Wallace Smith Trust Co Ltd On April 27, 1991, he had informed the Bank of England that the company was in financial difficulty. Events had moved quickly. The police had been called and on the following day they had arrested Mr Smith.

On April 30, after a number of interviews, at the outset of which he had no doubt been cautioned, he had been charged that between January 1, 1985 and April 29, 1991, he had been knowingly a party to the carrying on of the company's business with intent to defraud its creditors, contrary to section 458 of the Companies Act 1985.

The police officer had then cautioned Mr Smith again, as had been his duty under paragraph 16.5 of Code C of the Police and Criminal Evidence Act 1984 (s66): Codes of Practice (second edition (1991)).

It might be assumed that the caution had been in the terms: "You do not have to say anything unless you wish to do so, but what you say may be given in evidence".

It might also be assumed that thereafter the police officers had abstained, as was their duty under Code C, from conducting any further interviews with Mr Smith in relation to the offence with which he had been charged, save perhaps in the limited respects permitted by the code.

On May 7 Mr Smith had been admitted to bail.

Meanwhile, the director had become aware of suspicion attaching to the affairs of the company and at an early stage had formed the opinion that the matter was appropriate for investigation by procedures created by the 1987 Act.

Section 1 of that Act provided, inter alia: "(3) The director may investigate any suspected offence which appears to him … to involve serious

or complex fraud…"

Section 2 provides: "(2) The director may by notice in writing require the person whose affairs are to be investigated … to answer questions or otherwise furnish information with respect to any matter relevant to the investigation at a specified place…

"(8) A statement by a person in response to a requirement imposed by virtue of this section may only be used in evidence against him (a) on a prosecution for an offence under subsection (14) below; or (b) on a prosecution for some other offence where in giving evidence he makes a statement inconsistent with it…

"(13) Any person who without reasonable excuse fails to comply with...

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9 books & journal articles
  • Scots Criminal Law and the Right of Silence
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    • Dundee Student Law Review Nbr. IV-II, January 2018
    • 1 January 2018
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