Serious Fraud Office Powers under Section 2 of the Criminal Justice Act 1987 and Police and Criminal Evidence Act 1984
| Date | 01 January 1997 |
| Published date | 01 January 1997 |
| Pages | 223-231 |
| DOI | https://doi.org/10.1108/eb025781 |
| Author | Sandeep Savla |
| Subject Matter | Accounting & finance |
Journal of Financial Crime — Vol. 4 No. 3 — Investigations
INVESTIGATIONS
Serious Fraud Office Powers under Section 2 of
the Criminal Justice Act 1987 and Police and
Criminal Evidence Act 1984
Sandeep Savla
Serious fraud trials are the sum of their compo-
nent parts such that examination of one particular
area often repays attention. The Roskill Fraud
Trials Committee's criticisms1 were the backdrop
for the Criminal Justice Act 1987 and the
enhanced investigatory powers that are to be found
in s. 2
thereof.
Seven years after the enactment of
the 1987 Act it is apposite to examine whether in
derogating from the confines of traditional crimi-
nal evidential practices a certain level of procedural
and substantive fairness has been maintained. The
Police and Criminal Evidence Act 1984 and its
application to the rights of a suspect are also of
importance. 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.
OUTLINE OF SECTION 2
The right to silence has been abrogated in a
limited sense since answers that a suspect is
required to give in pre-trial investigations by the
SFO under s. 2 are inadmissible as evidence unless
proceedings are brought under s. 2(14) of the 1987
Act for giving false information or, by s. 2(8),
where the individual 'makes a statement incon-
sistent with it'. Strictly speaking, s. 2(8) protects a
defendant from self-incrimination but the infor-
mation provided will lead the investigators to
search for admissible original evidence, as the SFO
stated in its evidence to the Royal Commission.2
Further, s. 2(2) docs not allow a defendant to
claim a privilege against self-incrimination. The
courts have stated on numerous occasions3 that
one of the purposes of s. 2 is precisely to secure
disclosure of self-incriminatory material.
In the landmark case of R ν
Director
of
the Serious
Fraud
Office,
ex p. Smith4 Lord Mustill held that the
SFO can interview a defendant under s. 2 post-
charge. The powers under s. 2 to investigate 'any
matter relevant to the investigation' extended
beyond the matters which had caused the charge to
be laid. According to his Lordship, there were
ample remedies to ensure that the Director's
powers were not abused, either at long range
through judicial review, or by the trial judge using
his powers to ensure that the trial was fair.
The question of failure to respond to a s. 2(2)
notice by relying on s. 2(13) was definitively set-
tled in the recent case of R ν
Stipendiary
Magistrate,
ex p. SFO5 which did little more than quote at
length from Smith and the
obiter
decision by the
Court of Appeal in In Re
Bishopsgate
Investment
Management
Ltd.6
The provisions of s. 9 do not
inhibit the Director's wide investigatory powers
post-charge. The Court stated in both cases that
there could not be resort to Hansard because there
was no ambiguity, obscurity or absurdity. Given
the precedent of Smith the decisions are internally
consistent but, from an academic perspective, the
interpretation of the legislation as it applies to the
post-charge scenario is not necessarily correct.
The decision in Smith can be criticised on the
ground that throughout the parliamentary pro-
ceedings the references were to the position of the
'suspect'. In the House of Lords an amendment
was introduced to deem it a 'reasonable excuse'
within s. 2(13) for not answering questions that
the answers would be incriminating but was with-
drawn due to the Earl of Caithness having stated
that the situation in the Bill only applied before
charge.7 Counsel for Trachtenberg in
Bishopsgate
Investment
and ex
p.
SFO sought to argue this point
on the basis of
Pepper
ν Hart.8 The Court of Appeal
in both cases stated that there could not be a refer-
Page 223
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