The applicant having been cautioned for an offence under the Companies Act 1985, he objected to being required to answer questions put to him in connection with the matter by the Director of the Serious Fraud Office under the 1987 Act.
Held: The duty under the Act to answer SFO questions, continues even after the defendant is charged. The House identified six forms of immunity including: ‘a general immunity, possessed by all persons and bodies, from being compelled on pain of punishment to answer questions posed by other persons or bodies’ for which there were several motives.
Lord Mustill said: ‘That there is strong presumption against interpreting the statute as taking away the right of silence, at least in some of its forms, cannot in my view be doubted. Recently, Lord Griffiths (delivering the opinion in the Privy Council in Lam Chi-ming v The Queen [1991] 2 AC 212, 222) described the privilege against self-incrimination as ‘deep rooted in English law,’ and I would not wish to minimise its importance in any way. Nevertheless it is clear that statutory interference with the right is almost as old as the right itself. Since the 16th century legislation has established an inquisitorial form of investigation into the dealings and assets of bankrupts which is calculated to yield potentially incriminating material, and in more recent times there have been many other examples, in widely separated fields, which are probably more numerous than is generally appreciated.
These statutes differ widely as to their aims and methods. In the first place, the ways in which the overriding of the immunity is conveyed are not the same. Sometimes it is made explicit. More commonly, it is left to be inferred from general language which contains no qualification in favour of the immunity. Secondly, there are variations in the effect on the admissibility of information obtained as a result of the investigation. The statute occasionally provides in so many terms that the information may be used in evidence; sometimes that it may not be used for certain purposes, inferentially permitting its use for others; or it may be expressly prescribed that the evidence is not to be admitted; or again, the statute may be silent.’
and ‘The first is a simple reflection of the common view that one person should so far as possible be entitled to tell another person to mind his own business . . Secondly, there is a long history of reaction against abuses of judicial interrogation. . Next there is the instinct that it is contrary to fair play to put the accused in a position where he is exposed to punishment whatever he does. If he answers, he may condemn himself out of his own mouth; if he refuses he may be punished for his refusal. . Finally there is the desire to minimise the risk that an accused will be convicted on the strength of an untrue extra-judicial confession, to which the law gives effect by refusing to admit confessions in evidence except upon proof that they are ‘voluntary.”
and ‘Few would dispute that some curtailment of the liberty is indispensable to the stability of society; and indeed in the United Kingdom today our lives are permeated by enforceable duties to provide information on demand . .’
Judges:
Lord Mustill
Citations:
Gazette 15-Jul-1992, [1992] 3 All ER 456, [1992] 3 WLR 66, [1993] AC 1, [1992] BCLC 879
Statutes:
Criminal Justice Act 1987 2(2)
Jurisdiction:
England and Wales
Citing:
Appeal from – Regina v Director of the Serious Fraud Office Ex Parte Smith QBD 11-Mar-1992
The Serious Fraud Office may interview a defendant after he has been charged, but must give the caution and act accordingly and with caution. . .
Cited by:
Appealed to – Regina v Director of the Serious Fraud Office Ex Parte Smith QBD 11-Mar-1992
The Serious Fraud Office may interview a defendant after he has been charged, but must give the caution and act accordingly and with caution. . .
Cited – A, B, C, D, E, F, G, H, Mahmoud Abu Rideh Jamal Ajouaou v Secretary of State for the Home Department CA 11-Aug-2004
The claimants had each been detained without trial for more than two years, being held as suspected terrorists. They were free leave to return to their own countries, but they feared for their lives if returned. They complained that the evidence . .
Cited – Regina v Hertfordshire County Council, ex parte Green Environmental Industries Ltd and Another HL 17-Feb-2000
A notice was given to the holder of a waste disposal licence to require certain information to be provided on pain of prosecution. The provision of such information could also then be evidence against the provider of the commission of a criminal . .
Cited – Regina v S and A CACD 9-Oct-2008
The defendant appealed against his conviction under the 2000 Act for failing to disclose the key used to encrypt a computer file. He was subject to a control order as a suspected terrorist. As the police raided his house, they found the key had been . .
Cited – Phillips v Mulcaire SC 24-May-2012
The claimant worked as personal assistant to a well known public relations company. She alleged that the defendant had intercepted telephone message given by and left for her. The court was asked first as to whether the information amounted to . .
Lists of cited by and citing cases may be incomplete.
Human Rights, Criminal Practice
Updated: 15 May 2022; Ref: scu.86551