Serious Fraud Office: Conceptual Basis and Rights Considerations under Section 2 of the Criminal Justice Act 1987
| Pages | 63-71 |
| DOI | https://doi.org/10.1108/eb025758 |
| Published date | 01 March 1996 |
| Date | 01 March 1996 |
| Author | Sandeep Savla |
| Subject Matter | Accounting & finance |
INVESTIGATION
Serious Fraud Office: Conceptual Basis and Rights
Considerations under Section 2 of the Criminal
Justice Act 1987
Sandeep Savla
Journal of Financial Crime — Vol. 4 No. 1 — Investigation
INTRODUCTION
Section 2 of the Criminal Justice Act 1987 abro-
gates the right to silence since a suspect is required
to answer questions in pre-trial investigations by
the SFO, although the answers are inadmissible as
evidence unless proceedings are brought under s.
2(14) for giving false information or by s. 2(8),
where the individual 'makes a statement incon-
sistent with it'. In a previous article, the writer has
considered the necessity and effectiveness of s. 2
powers. It is also instructive to analyse the con-
ceptual basis of s. 2 powers since this will aid in
the interpretation of statutory ambiguities and will
allow the courts to have a uniformity of approach
when seeking to resolve the statutory ambiguities.
The conceptual basis is also important as concerns
the resolution of where the line lies between the
effective investigation of offences pursuant to s. 2
and the rights of the individual subject to such
questioning. A critical examination of the above
issues demands steering a careful course between
normative rules and theory: in this area above all
others it is impossible and undesirable to divorce
one from the other.
CONCEPTUAL BASIS FOR THE
POWERS UNDER THE ACT
Section 2 powers have seen the convergence of
what are essentially arguments between those who
advocate constitutional and rights-based arguments
and those who are utilitarians in the traditional
Benthamite mould. In R v
Director
of the Serious
Fraud
Office,
ex p. Smith1 Lord Mustill identified
four reasons why the so-called right to silence was
embedded in English law. The first was a simple
reflection of the common view that one person
should so far as possible be entitled to tell another
person to mind his business. While recognising
this constitutional rights argument, Lord Mustill
goes on to espouse a fundamentally utilitarian
argument, '... few would dispute that some cur-
tailment of liberty is indispensable to the stability
of society'.2 Secondly, there was a long history of
reaction against abuses of judicial interrogation, for
instance, the Star Chamber. Next, there was the
instinct that it was contrary to fair play to expose
the accused to punishment whatever he does.
Finally, there is the desire to minimise the risk of
conviction due to untrue extra-judicial confession.
Having begun thus, Lord Mustill does not in the
main analyse s. 2, rather his Lordship states that
the immunity against questioning charged persons
was historically developed from the law governing
the admissibility of confessions. Of course, the
judiciary cannot carry out a merit-based analysis so
that Lord Mustill limited his decision wisely but in
so far as there is an ambiguity as to the meaning of
'suspected offence' within s. 2,3 his Lordship could
have made interpretative choices in the light of a
proper conceptual analysis of the privilege against
self-incrimination and the 1987 Act. His Lordship
stated that the immunities had developed at
dif-
ferent stages as a response to differing require-
ments and that the disparate immunities were not
different ways of expressing the same principle.
Nevertheless, it must be questioned whether there
is not a general principle underlying each of the
immunities that a person should not be put in the
position of being or feeling compelled to incrimi-
nate themselves.4
For Benham, the argument that we should
refrain from questioning because it is 'hard' on a
man to incriminate himself is dismissed as 'old
woman's reason'.5 The rational determination of
guilt and innocence supersedes procedural fairness.
Page 63
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