The Right to Silence and Legal Professional Privilege
| DOI | https://doi.org/10.1108/eb025608 |
| Published date | 01 January 1993 |
| Date | 01 January 1993 |
| Pages | 57-62 |
| Author | Anthony Vernon |
| Subject Matter | Accounting & finance |
The Right to Silence and Legal Professional
Privilege
Anthony Vernon
Anthony Vernon
is a litigation partner in Richards Butler
and represents Jonathan Cohen in the
Blue Arrow affair. He was formerly a
partner in Boodle Hatfield where he was
responsible for that firm's representation
of Jonathan Cohen in the Blue Arrow
trial.
ABSTRACT
The recent Blue Arrow and Maxwell cases
have highlighted the extremely wide-rang-
ing powers of investigation and inquiry
vested in regulatory authorities such as the
Serious Fraud Office (SFO) and the Depart-
ment of Trade and Industry (DTI) and in
company liquidators by recent legislation
(Companies Act 1985, Insolvency Act 1986,
Criminal Justice Act 1987). In this paper, the
author reviews the current state of the law
on the availability of the privilege against
self-incrimination and of legal professional
privilege as protection for senior company
officials who face such investigations or
inquiries. Through the consideration of a
hypothetical scenario, the paper provides
some general suggestions with a view to
minimising, insofar as possible, the prob-
lems,
criticisms and adverse publicity for
the company which may result from these
investigations and inquiries
The purpose of this paper is to review
the current state of the law on the avail-
ability of the privilege against self-incri-
mination and of legal professional privi-
lege as ways of protecting the positions
of senior corporate officials in the face of
external regulatory investigations. The
subject is of particular relevance at the
moment given the erosion of the first
privilege by recent statutes (Companies
Act 1985, Insolvency Act 1986 and
Criminal Justice Act 1987) and court
orders based on these statutes. Before
setting out the current legal position, the
importance of
a
proper understanding of
these privileges for directors can perhaps
be well illustrated by a common enough
example.
COMMON EXAMPLE
A chief executive becomes aware of
something unusual going on in an area
within his company and he speedily
organises an investigation which results
in an internal report. The chief executive
suspects that there may be a serious
problem and he telephones the com-
pany's lawyer. The lawyer reviews the
internal report and advises:
- that regulatory investigations may
result
57
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