The Right to Silence, Section 2 and Recent Case Law
| Pages | 176-185 |
| DOI | https://doi.org/10.1108/eb025704 |
| Published date | 01 March 1995 |
| Date | 01 March 1995 |
| Author | Sandeep Savla |
| Subject Matter | Accounting & finance |
Journal of Financial Crime — Vol. 3 No. 2 — Prosecution and Investigation
PROSECUTION AND INVESTIGATION
The Right to Silence, Section 2 and Recent Case
Law
Sandeep Savla
SERIOUS FRAUD OFFICE, POWERS
UNDER S. 2 OF THE CRIMINAL JUSTICE
ACT 1987 AND THE POLICE AND
CRIMINAL EVIDENCE ACT 1984
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 (PACE)
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 prescriptive rules and theory: in this area
above all others it is impossible and undesirable to
divorce one from the other.
OUTLINE OF S. 2
The right to silence has been abrogated in a lim-
ited sense since answers that an individual is
required to give in pre-trial investigations by the
Serious Fraud Office (SFO) under s. 2 are inad-
missible 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 individ-
ual 'makes a statement inconsistent with it'.
Strictly speaking, s. 2(8) protects a defendant from
self-incrimination but the information 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-incrimi-
natory material.
In the landmark case of R v
Director
of
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 pow-
ers were not abused, either at long range through
judicial review, or by the trial judge using his pow-
ers 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 v
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 Re Bishopsgate Investment
Management
Ltd.6
The provisions of s. 9 do not
inhibit the Director's wide investigatory powers
post-charge. There could not be resort to Hansard
because there was no ambiguity, obscurity or
absurdity. Given the precedent of Smith the deci-
sions are internally consistent but, from an aca-
demic 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 where
the answers would be incriminating but this was
withdrawn due to the Earl of Caithness having
indicated that the situation in the Bill only applied
Page 176
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