R v DIRECTOR OF SERIOUS FRAUD OFFICE, Ex parte SMITH
HOUSE OF LORDS
 AC 1,  3 All ER 456,  3 WLR 66,  BCLC 879, 95 Cr App Rep 191
HEARING-DATES: 16, 17 March, 11 June 1992
11 June 1992
Crime -- Fraud -- Fraudulent trading -- Investigation by Serious Fraud Office -- Applicant charged with carrying on business of company with intent to defraud creditors -- Whether power of Director to compel answers to questions ceasing once applicant charged -- Criminal Justice Act 1987 (c 38), s 2 (as amended by Criminal Justice Act 1988 (c 33), ss 143, 170(1), Sch 15, para 113)
On 30 April 1991, the applicant, the chairman and managing director of a company, was charged that between 1 January 1985 and 29 April 1991 he had knowingly been a party to the carrying on of the business of the company with intent to defraud its creditors, contrary to section 458 of the Companies Act 1985. He was cautioned. On 7 May he was admitted to bail. The Director of the Serious Fraud Office formed the opinion that the matter was appropriate for investigation by procedures under the Criminal Justice Act 1987 and on 24 June served a notice on the applicant requiring him to attend for interview at her offices and answer questions or otherwise furnish information. The applicant sought judicial review of the Director's decision to seek to enforce compliance with the requirements of the notice. The Divisional Court of the Queen's Bench Division granted the applicant a declaration to the effect that the Director was entitled to ask him questions after he had been charged but only after administering a fresh caution and that the fact of such a caution would be reasonable excuse for a refusal to answer within section 2(13) of the Act of 1987.
On appeal by the Director:-
Held, allowing the appeal, that although there was a strong presumption against interpreting a statute as taking away the right of silence of an accused person it was the plain intention of the Criminal Justice Act 1987 that the powers of the Director of the Serious Fraud Office should not come to an end when the person under investigation had been charged; and that, accordingly, she was entitled to compel the applicant to answer questions on pain of commission of a criminal offence under section 2(13) of the Act of 1987 if he did not do so and no caution was appropriate.
A v HM Treasury  1 WLR 1056 and Reg v Director of Serious Fraud Office, Ex parte Saunders (1988) 138 NLJ 243, DC considered.
Decision of the Divisional Court of the Queen's Bench Division  1 All ER 730 reversed.
A v HM Treasury  1 WLR 1056;  2 All ER 586
Director of Public Prosecutions v Ellis  1 WLR 722;  2 All ER 540, DC
Hammond v Commonwealth of Australia (1982) 152 CLR 188
Lam Chi-ming v The Queen  2 AC 212;  2 WLR 1082;  3 All ER 172, PC
Practice Note (Judges' Rules)  1 WLR 152;  1 All ER 237, CCA
Rees v Kratzmann (1965) 114 CLR 63
Reg v Director of Serious Fraud Office, Ex parte Saunders (1988) 138 NLJ 243, DC
Rex v Brown (Alfred) (1931) 23 Cr App R 56, CCA
Atherton, In re  2 KB 251
Bishopsgate Investment Management Ltd v Maxwell  2 WLR 991, CA
EMI Records Ltd v Spillane  1 WLR 967;  2 All ER 1016
Hussien v Chong Fook Kam  AC 942;  2 WLR 441;  3 All ER 1626, PC
Ibrahim v The King  AC 599, PC
Istel (AT & T) Ltd v Tully  1 QB 315;  2 WLR 112;  2 All ER 28, CA
London United Investments Plc, In re (unreported), 23 July 1991, Scott J;  2 WLR 850, CA
Reg v Saunders (unreported), 29 January 1990, Henry J
Reg v Scott (1856) Dears & B 47
Reg v Seelig  1 WLR 148;  4 All ER 429, CA
APPEAL from the Divisional Court of the Queen's Bench Division.
This was an appeal by the Director of the Serious Fraud Office by leave of the Divisional Court of the Queen's Bench Division (Nolan LJ and Potts J)  1 All ER 730 granted on 16 December 1991 from their decision on 7 November 1991 on a motion by the applicant, Wallace Duncan Smith, with leave of Hidden J given on 25 June 1991, for judicial review.
The applicant sought judicial review of the decision of the Director of the Serious Fraud Office on 26 June 1991, in the course of criminal proceedings against the applicant, to seek to enforce his compliance with the requirement contained in a notice issued pursuant to section 2 of the Criminal Justice Act 1987 to attend at her offices and answer questions or otherwise furnish information in respect of her investigation of the applicant alone, after she had caused him to be interviewed under caution on three occasions and thereafter charged him with an offence, at a time when and in circumstances whereby (a) the applicant's application for legal aid had not yet been granted and he had neither legal advice nor legal representation available to him; (b) the Director had stated that she would not cause the applicant to be further cautioned in compliance with Code C, paragraph 16.5 of the current Codes of Practice issued pursuant to the Police and Criminal Evidence Act 1984. The relief sought by the applicant was, inter alia, (1) an order of certiorari to quash the section 2(2) notice dated 24 June 1991 issued by the Director; and (2) an order prohibiting her from requiring or further requiring him to attend and comply with the requirements of a notice issued pursuant to section 2 of the Act of 1987 without (a) affording him a reasonable opportunity for his application for legal aid to be processed and thereby affording him the opportunity to be legally advised on such requirements and to be legally represented at such time as he was required to comply with them and (b) causing him to be cautioned in accordance with Code C, paragraph 16.5 before being required to comply with
The Divisional Court ordered that the applicant's motion be allowed for a declaration that before asking questions relating to an offence with which a person under investigation had been charged the Director of the Serious Fraud Office had to inform that person that he was not obliged to answer such questions but that, if they were answered, what was said might only be used in evidence against that person where he was charged with knowingly or recklessly making a false or misleading statement or where the answer was inconsistent with any evidence that he might give at a later criminal trial. The court further ordered that the following questions be certified as points of law of general public importance:
"(1) Whether or not the Director of the Serious Fraud Office, in employing her powers under section 2 of the Criminal Justice Act 1987 in relation to a person under investigation who has been charged with an offence, is obliged by any principle of law, before asking any question or seeking any information in relation to that offence, to inform that person that he is not obliged to answer such questions, or provide such information, and, if so, by what principle of law. (2) Whether or not the power of the Director of the Serious Fraud Office under section 2 of the Criminal Justice Act 1987 to require by notice in writing a person under investigation to answer questions or otherwise furnish information continues after that person has been charged with an offence."
The facts are stated in the opinion of Lord Mustill.
Sydney Kentridge QC and Nigel Pleming for the Director of the Serious Fraud Office; Andrew Collins QC and David Hood for the applicant.
Their Lordships took time for consideration. 11 June.
PANEL: Lord Templeman, Lord Bridge of Harwich, Lord Ackner, Lord Lowry, Lord Mustill
JUDGMENTBY-1: LORD TEMPLEMAN
LORD TEMPLEMAN: My Lords, for the reasons given by my noble and learned friend, Lord Mustill, I would allow this appeal.
JUDGMENTBY-2: LORD BRIDGE OF HARWICH
LORD BRIDGE OF HARWICH: My Lords, I have had the advantage of reading the speech of my noble and learned friend, Lord Mustill. I agree with it and for the reasons he gives I would allow this appeal.
JUDGMENTBY-3: LORD ACKNER
LORD ACKNER: My Lords, for the reasons given by my noble and learned friend, Lord Mustill, I would allow this appeal.
JUDGMENTBY-4: LORD LOWRY
LORD LOWRY: My Lords, I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Mustill. I agree with it and for the reasons he gives I would allow the appeal.
JUDGMENTBY-5: LORD MUSTILL
LORD MUSTILL: My Lords, this appeal raises an important question on two aspects of what is compendiously, albeit inaccurately, called "the right of silence."
The facts are simple. The respondent applicant, Mr WD Smith, was the chairman and managing director of Wallace Smith Trust Co Ltd. On 27 April 1991 the applicant informed the Bank of England that the company was in financial difficulty. Events moved quickly. The police were called in, and on the following day they arrested the applicant. On 30 April, after a number of interviews, at the outset of which he was no doubt cautioned, he was charged that he:
"between 1 January 1985 and 29 April 1991 in the City of London and elsewhere was knowingly a party to the carrying on of the business of a company called Wallace Smith Trust Co Ltd with intent to defraud creditors of the said company contrary to section 458 Companies Act 1985."
The police officer then proceeded to caution the applicant again, as was his duty under paragraph 16.5 of the Code of Practice for the Detention, Treatment and Questioning of Persons by Police Officers ("Code C") published by the Secretary of State pursuant to powers conferred by section 66 of the Police and Criminal Evidence Act 1984. We may assume that the caution was in the following terms: "You do not have to say anything unless you wish to do so, but what you say may be given in evidence."
We may also assume that thereafter the police officers abstained, as was their duty under Code C, from conducting any further interviews with the applicant in relation to the offence with which he had been charged, save perhaps in the very limited respects permitted by Code C, to which I shall later refer.
On 7 May the applicant was admitted to bail, and so far as we are aware has been at liberty ever since, although it appears that he has appeared on a number of occasions at the Guildhall Magistrates' Court, to what effect we do not know.
Meanwhile, the Director of the Serious Fraud Office had become aware of suspicion attaching to the affairs of the company, and at an early stage formed the opinion that the matter was appropriate for investigation by procedures created by the Criminal Justice Act 1987. In due course on 5 June an assistant director of the Serious Fraud Office wrote to the applicant to the following effect:
"As you know a little while ago there were discussions between this Office and Stephenson Harwood [the applicant's former solicitors] about a proposed interview to be conducted under the terms of section 2 of the Criminal Justice Act 1987 and I promised to provide further details to them of our proposed course of action which is now given to you instead of them: (1) This Office intends to hold an interview with you under section 2 on Thursday, 13 June 1991. A formal notice requiring you to attend here for such an interview will be delivered to you separately from this letter. The interview will be conducted by a lawyer other than myself and an accountant. You are positively advised to have a legal advisor with you during interview. (2) Unlike a police interview you will not be given what is called a caution. Under the Criminal Justice Act 1987 you are obliged to answer truthfully questions put to you. (3) The replies that you give are not evidence against you in any later criminal trial that may arise from this case. The replies can however be used against you if you in the trial say something which is inconsistent with what you said in the section 2 interview. (4) You can be prosecuted if you dishonestly answer or, without reasonable excuse, fail to answer questions put to you. (5) The general topics it is proposed to discuss with you are: (a) the existence and whereabouts of certain accountancy books and records believed to contain information material to the case; (b) the existence and whereabouts of assets which should have been in the possession of companies under your control and now cannot be traced; (c) the extent of your control and interest in various Canadian companies and trusts and the extent and nature of your dealings with these entities; (d) details of personal bank accounts and assets currently held and how current liabilities are being met. (6) The purpose of the questions and the need for the interview, on this occasion, is to obtain information relevant to an investigation being carried out by the Office such information being necessary for the purpose of preventing or minimising harm or loss to third parties."
The formal notice foreshadowed by this letter was served on the applicant on 6 June. It read:
"Criminal Justice Act 1987, section 2. Notice requiring attendance to answer questions and furnish information. Persons under investigation: see attached list. 1. The Director of the Serious Fraud Office has decided to investigate suspected offences which appear to her to involve serious or complex fraud. 2. Pursuant to section 2(11) of the Criminal Justice Act 1987 ('the Act') I have been authorised by the Director of the Serious Fraud Office to exercise on her behalf all the powers conferred by section 2 of the Act for the purpose of investigating the affairs of the persons under investigation. 3. There appears to me, for the purposes of the investigation referred to at 1 above, to be good reason to exercise the powers conferred by section 2(2) of the Act for the purpose of investigating the affairs of the persons under investigation. I have reason to believe that you have relevant information about the affairs of the persons under investigation, and I therefore require you to answer questions or otherwise furnish information to me with respect to matters relevant to the investigation at Elm House, 10-16, Elm Street, London WC1X 0BJ on Thursday 13 June 1991 at 10 am (Signed) David Lee. Dated: 6 June 1991. Note: Failure without reasonable excuse to comply with these requirements is a criminal offence. It is also a criminal offence to falsify, destroy or otherwise dispose of, or to cause or permit the falsification,
concealment, destruction or disposal of documents which you know or suspect are or would be relevant to the investigation."
The "attached list" identified the applicant, together with 13 companies and trusts, as the "persons under investigation."
Annexed to the notice was a document entitled "Guidance for persons being interviewed at Elm House under section 2 of the Criminal Justice Act 1987". This was largely concerned with the physical circumstances in which the interview would be conducted, but it did also inform the recipient of the notice that:
"10. No statement which you make during the interview may be given in evidence against you unless: (a) you are prosecuted for making a statement which is false or misleading in a material particular; or (b) you are prosecuted for some other offence and when giving evidence, you make a statement which is inconsistent with a statement made during the interview."
In the event the proposed interview was postponed, to allow the applicant a change of legal representation. During the ensuing correspondence attempts were made on behalf of the applicant to obtain a much larger postponement whilst he sought to obtain legal aid for representation at the interview, but the Director of the Serious Fraud Office did not agree, and on 24 June she caused a further notice to be served, identical to the first, save that the interview was now to take place on 26 June, and the "person under investigation" was identified as the applicant alone. This prompted an immediate application to the Divisional Court of the Queen's Bench Division  1 All ER 730 for certiorari in respect of the Director's decision to seek to enforce compliance with the requirements contained in the notice of 26 June to attend at her offices and answer questions and otherwise furnish information. It will be necessary to look closely at the relief sought, and the grounds advanced in support, but it is convenient first to establish the background of statutory and common law to the matters now in issue.
I begin with the statutes and the Code. The Police and Criminal Evidence Act 1984 provided, so far as material, as follows:
"Codes of practice.
"66. The Secretary of State shall issue codes of practice in connection with -- . . . (b) the detention, treatment, questioning and identification of persons by police officers; . . .
"Codes of practice -- supplementary.
"67(1) When the Secretary of State proposes to issue a code of practice to which this section applies, he shall prepare and publish a draft of that code, shall consider any representations made to him about the draft and may modify the draft accordingly . . . (3) The Secretary of State shall lay before both Houses of Parliament a draft of any code of practice prepared by him under this section. (4) When the Secretary of State has laid the draft of a code before Parliament, he may bring the code into operation by order made by statutory instrument. (5) No order under subsection (4) above shall have effect until approved by a resolution of each House of Parliament . . . (7) The Secretary of State may from time to time revise the whole or any part of a code of practice to which this section applies and issue that revised code; and the foregoing provisions of this section shall apply (with appropriate modifications) to such a revised code as they apply to the first issue of a code. (8) A police officer shall be liable to disciplinary proceedings for a failure to comply with any provision of such a code, unless such proceedings are precluded by section 104 below. (9) Persons other than police officers who are charged with the duty of investigating offences or charging offenders shall in the discharge of that duty have regard to any relevant provision of such a code. (10) A failure on the part -- (a) of a police officer to comply with any provision of such a code; or (b) of any person other than a police officer who is charged with the duty of investigating offences or charging offenders to have regard to any relevant provision of such a code in the discharge of that duty, shall not of itself render him liable to any criminal or civil proceedings. (11) In all criminal and civil proceedings any such code shall be admissible in evidence; and if any provision of such a code appears to the court or tribunal conducting the proceedings to be relevant to any question arising in the
proceedings it shall be taken into account in determining that question."
Pursuant to section 67 of this Act the Secretary of State laid before Parliament and
subsequently issued Code C, the "Code of Practice for the Detention, Treatment and
Questioning of Persons by Police Officers." This was subsequently republished with
amendments immaterial to the present appeal. It reads in part as follows:
"10. Cautions. (a) When a caution must be given. 10.1 A person whom there are grounds to suspect of an offence must be cautioned before any questions about it (or further questions if it is his answers to previous questions that provide grounds for suspicion) are put to him for the purpose of obtaining evidence which may be given to a court in a prosecution. He therefore need not be cautioned if questions are put for other purposes, for example, to establish his identity or his ownership of any vehicle or the need to search him in the exercise of powers of stop and search . . . (b) Action: general. 10.4 The caution shall be in the following terms: 'You do not have to say anything unless you wish to do so, but what you say may be given in evidence.' . . .
"11. Interviews: general. (a) Action. 11.1 Following a decision to arrest a suspect he must not be interviewed about the relevant offence except at a police station . . . 11.4 As soon as a police officer who is making inquiries of any person about an offence believes that a prosecution should be brought against him and that there is sufficient evidence for it to succeed, he should ask the person if he has anything further to say. If the person indicates that he has nothing more to say the officer shall without delay cease to question him about that offence
. . .
"16. Charging of detained persons. (a) Action. 16.1 When an officer considers that there is sufficient evidence to prosecute a detained person, and that there is sufficient evidence for a prosecution to succeed, and that the person has said all that he wishes to say about the offence, he should without delay (and subject to the following qualification) bring him before the custody officer who shall then be responsible for considering whether or not he should be charged. When a person is detained in respect of more than one offence it is permissible to delay bringing him before the custody officer until the above conditions are satisfied in respect of all the offences (but see paragraph 11.4). Any resulting action should be taken in the presence of the appropriate adult if the person is a juvenile or mentally disordered or mentally handicapped.
16.2 When a detained person is charged with or informed that he may be prosecuted for an offence he shall be cautioned in the terms of paragraph 10.4 above. 16.3 At the time a person is charged he shall be given a written notice showing particulars of the offence with which he is charged and including the name of the officer in the case (in terrorist cases, the officer's warrant number instead), his police station and the reference number for the case. So far as possible the particulars of the charge shall be stated in simple terms, but they shall also show the precise offence in law with which he is charged. The notice shall begin with the following words: 'You are charged with the offence(s) shown below. You do not have to say anything unless you wish to do so, but what you say may be given in evidence.' If the person is a juvenile or is mentally disordered or mentally handicapped the notice shall be given to the appropriate adult. 16.4 If at any time after a person has been charged with or informed he may be prosecuted for an offence a police officer wishes to bring to the notice of that person any written statement made by another person or the content of an interview with another person, he shall hand to that person a true copy of any such written statement or bring to his attention the content of the interview record, but shall say or do nothing to invite any reply or comment save to caution him in the terms of paragraph 10.4 above. If the person cannot read then the officer may read it to him. If the person is a juvenile or mentally disordered or mentally handicapped the copy shall also be given to, or the interview record brought to the attention of, the appropriate adult. 16.5 Questions relating to an offence may not be put to a person after he has been charged with that offence, or informed that he may be prosecuted for it, unless they are necessary for the purpose of preventing or minimising harm or loss to some other person or to the public or
for clearing up an ambiguity in a previous answer or statement, or where it is in the interests of justice that the person should have put to him and have an opportunity to comment on information concerning the offence which has come to light since he was charged or informed that he might be prosecuted. Before any such questions are put he shall be cautioned in the terms of paragraph 10.4 above."
Finally, there is the Act of 1987, as amended, the origin of the powers which the Serious Fraud Office seeks to assert against the applicant.
The following provisions are material:
"The Serious Fraud Office.
"1(1) A Serious Fraud Office shall be constituted for England and Wales and Northern Ireland. (2) The Attorney-General shall appoint a person to be the Director of the Serious Fraud Office (referred to in this Part of this Act as 'the Director'), and he shall discharge his functions under the superintendence of the Attorney-General. (3) The Director may investigate any suspected offence which appears to him on reasonable grounds to involve serious or complex fraud . . . (5) The Director may -- (a) institute and have the conduct of any criminal proceedings which appear to him to relate to such fraud; and (b) take over the conduct of any such proceedings at any stage . . .
"Director's investigation powers.
"2(1) The powers of the Director under this section shall be exercisable, but only for the purposes of an investigation under section 1 above, or, on a request made by the Attorney-General of the Isle of Man, Jersey or Guernsey, under legislation corresponding to that section and having effect in the Island whose Attorney-General makes the request, in any case in which it appears to him that there is good reason to do so for the purpose of investigating the affairs, or any aspect of the affairs, of any person. (2) The Director may by notice in writing require the person whose affairs are to be investigated ('the person under investigation') or any other person whom he has reason to believe has relevant information to answer questions or otherwise furnish information with respect to any matter relevant to the investigation at a specified place and either at a specified time or forthwith. (3) The Director may by notice in writing require the person under investigation or any other person to produce at such place as may be specified in the notice and either forthwith or at such time as may be so specified any specified documents which appear to the Director to relate to any matter relevant to the investigation or any documents of a specified description which appear to him so to relate; and -- (a) if any such documents are produced, the Director may -- (i) take copies or extracts from them; (ii) require the person producing them to provide an explanation of any of them; (b) if any such documents are not produced, the Director may require the person who was required to produce them to state, to the best of his knowledge and belief, where they are . . . (8) A statement by a person in response to a requirement imposed by virtue of this section may only be used in evidence against him -- (a) on a prosecution for an offence under subsection (14) below; or (b) on a prosecution for some other offence where in giving evidence he makes a statement inconsistent with it."
The right of silence
I turn from the statutes to "the right of silence." This expression arouses strong but unfocused feelings. In truth it does not denote any single right, but rather refers to a disparate group of immunities, which differ in nature, origin, incidence and importance, and also as to the extent to which they have already been encroached upon by statute. Amongst these may be identified:
(1) 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.
(2) A general immunity, possessed by all persons and bodies, from being compelled on pain of punishment to answer questions the answers to which may incriminate them.
(3) A specific immunity, possessed by all persons under suspicion of criminal responsibility whilst being interviewed by police officers or others in similar positions of authority, from being compelled on pain of punishment to answer questions of any kind.
(4) A specific immunity, possessed by accused persons undergoing trial, from being compelled to give evidence, and from being compelled to answer questions put to them in the dock.
(5) A specific immunity, possessed by persons who have been charged with a criminal offence, from having questions material to the offence addressed to them by police officers or persons in a similar position of authority.
(6) A specific immunity (at least in certain circumstances, which it is unnecessary to explore), possessed by accused persons undergoing trial, from having adverse comment made on any failure (a) to answer questions before the trial, or (b) to give evidence at the trial.
Each of these immunities is of great importance, but the fact that they are all important and that they are all concerned with the protection of citizens against the abuse of powers by those investigating crimes makes it easy to assume that they are all different ways of expressing the same principle, whereas in fact they are not. In particular it is necessary to keep distinct the motives which have caused them to become embedded in English law; otherwise objections to the curtailment of one immunity may draw a spurious reinforcement from association with other, and different, immunities commonly grouped under the title of a "right to silence." Thus, for example, it is clear that the fourth and sixth of the "rights of silence," which are the subject of much current controversy, are wholly unconnected with the present appeal.
We must look briefly at these various motives. 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. All civilised states recognise this assertion of personal liberty and privacy. Equally, although there may be pronounced disagreements between states, and between individual citizens within states, about where the line should be drawn, 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, created by Parliament and tolerated by the majority, ableit in some cases with reluctance.
Secondly, there is a long history of reaction against abuses of judicial interrogation. The Star Chamber and the Council had the power to administer the oath and to punish recusants; and literally to press confessions out of those under interrogation. Even after the abuses of the Star Chamber had been curbed the magistrates, who in the absence of a police force had some of the functions of a modern juge d'instruction, had power to interrogate the accused before trial. It seems that the use of such powers to obtain compulsory response to interrogation gradually faded away, and in practice were replaced by a caution, well before the caution became mandatory in 1848. Nevertheless, although the misuse of judicial interrogation is now only a distant history, it seems to have left its mark on public perceptions of the entire subject: and indeed not just public perceptions, for in the recent past there have been several authoritative and eloquent judicial reminders of the abuses of our former inquisitorial system and of the need to guard against their revival. Amongst these are the oft-cited dicta of Murphy J in Hammond v Commonwealth of Australia (1982) 152 CLR 188. It may however be noted that the immunity against judicial interrogation is no longer as complete as it was, for the abolition by the Criminal Evidence Act 1898 of the rule that an accused was not even a competent witness at his own trial opened up the possibility that if he did give evidence he would expose himself to questioning by counsel for the prosecution and in appropriate circumstances by the judge himself; and his privilege against self-incrimination whilst giving evidence was expressly removed by section 1(e) of the Act of 1898.
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: on this, see Glanville Williams, The Proof of Guilt, 3rd ed (1963), pp 52-53.
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." This motive, which became prominent when inquisitorial methods waned and extra-judicial confessions became an important, and in many instances by far the most important, weapon in the prosecution's armoury, was particularly weighty at a time when the accused could not rebut or explain away the confession by giving evidence on his own behalf. Even now, nearly 100 years after that disability has been removed, the imprint of the old law is still clearly to be seen.
In these circumstances I think it clear, given the diversity of immunities and of the policies underlying them, that it is not enough to ask simply whether Parliament can have intended to abolish a longstanding right of silence. Rather, an essential starting-point must be to identify whatvariety of this right is being invoked, and what are the reasons for believing that the right in question ought at all costs to be maintained. Before addressing this question I must turn aside to summarise two decisions, which have had a powerful influence on the shape of the present proceedings.
The first was A v HM Treasury  1 WLR 1056. Two company directors and a company were under investigation by the Customs and Excise Commissioners regarding possible offences against the Exchange Control Act 1947. One director, B, was arrested, cautioned and charged. He was then served with a letter pursuant to the Treasury's power under the Act to require any person
"to furnish to them . . . any information in his possession or control which the Treasury . . . may require for the purpose of securing compliance with or detecting evasion of this Act:" Sch 5, Pt I, para 1(1).
The letter called for information of a potentially incriminating nature. Similar letters were addressed to A and to the company, neither of whom had at that time been charged with any offence under the Act. There was no provision in the statute regulating the admissibility or otherwise in criminal proceedings of any answers which might be given. All three addressees sought by originating summons the determination of the court on whether they were bound to provide the information sought. The matter came before Mr TP Russell QC (now Russell LJ) sitting as a deputy judge of the High Court.
In his judgment the deputy judge distinguished between A and the company on the one hand, and B on the other. As to the latter he dismissed from consideration certain authorities relating to the admissibility in evidence of information obtained under powers similar to those which he had to consider, on the ground that the matters before him concerned, not the admissibility of replies to questions, but the right of the authorities to demand answers. In the absence of any relevant authority he went on to hold for two reasons that B could not be required, after he had been cautioned and charged, to furnish the information. The first reason was based on the language and structure of the Act. The powers relied upon were conferred by Part I of the Act. In the opinion of the deputy judge the operation of that Part, concerned as it was with giving the authorities powers to secure compliance with or detection of evasion of the Act, came to an end when they had secured sufficient evidence to justify a charge. The deputy judge's second reason, which reinforced this interpretation, was stated as follows, at p 1060:
"I cannot believe that the legislature ever intended that the powers contained in paragraph 1, with the sanction of criminal penalties, should or could be invoked to obtain information or documents of a potentially incriminating nature from one who had already been cautioned and charged with offences under the Act . . . If this were to be so, it would make a mockery of the caution and the concept of the right to silence after a charge has been preferred."
The position was however different as regards A and the company, for they had not been charged, and in the view of the deputy judge were in no better or worse position than any other potential witness from whom information and documents were sought for the purpose of securing compliance with or detecting evasion of the Act. Reliance was placed on Director of Public Prosecutions v Ellis  1 WLR 722, where it was held that the fact that two accused persons had been prosecuted to conviction did not mean that the purpose of Part I of the Act, namely securing compliance with and detecting evasion of the Act, were spent; and that accordingly it was still open to the authorities to employ their powers to obtain information relative to the same transaction from another person.
The other important decision was that of the Divisional Court in Reg v Director of Serious Fraud Office, Ex parte Saunders (1988) 138 NLJ 243, which concerned a notice served on a company, G Plc, under section 2(3) of the Act of 1987 to produce certain documents. The persons named in the notice as being under investigation included S, a former director of G Plc. S, who had already been charged with numerous offences arising from transactions to which the documents were germane, sought judicial review of the decision to serve the notice. The matter came before a Divisional Court comprising Watkins LJ and McNeill J.
One of the points taken on behalf of S was that the notice was invalid because as soon as he was charged the Director's investigation came to an end, carrying away with it the power to call for information from third parties. The Divisional Court responded to this argument in two ways. First, as a matter of decision, the court held that charging of S did not terminate the power to investigate so that the power to require information from G Plc remained intact.
The court continued by making some observations, undoubtedly obiter, about the powers of the Serious Fraud Office as regarded the person under investigation himself. I do not find this passage altogether easy to follow, especially in its reference to A v HM Treasury  1 WLR 1056, but it seems to me that the court regarded the powers as being capable of legitimate exercise after charge, but only if (a) the questions put were limited to those permitted by what are now the concluding words of what is now paragraph 16.5 of Code C, and (b) they were preceded by a caution.
The proceedings in the Divisional Court
It was against this background that the present proceedings were launched. The events which I have described had two anomalous features. (1) As he was obliged to do, the charging officer (at a time when the Director was already interesting herself in the matter) had told the applicant that he was not obliged to say anything; yet only two weeks later the Serious Fraud Office was warning the applicant that he was going to be interviewed under compulsory powers; and it was not much longer still before the office formally put him on notice that he would be asked questions which he would be compelled to answer on pain of punishment. (2) Whereas it has been axiomatic throughout the working lifetimes of many now engaged in the administration of criminal justice that a police officer should never, save in exceptional circumstances, even address questions to a suspect after he has been charged, the Serious Fraud Office, which is by statute required to have regard to Code C, is asserting a contradictory power not only to ask questions at such a time, but also to penalise the applicant for any failure to reply.
It is not surprising to find, underlying the judgments of all the experienced Queen's Bench judges who have grappled with this problem, a feeling of acute concern about the situation thus revealed. Nor again is it a matter for surprise that counsel and the judges in these cases have concentrated attention on whether there is a sufficient change of status at the moment of charging to render further questioning impermissible.
Nevertheless, although it is easy to see why the thrust of the arguments has throughout been to concentrate on the charging of the suspect and (in the light of Ex parte Saunders) on the association of a renewed caution with any exercise of the Director's powers where the person under interrogation has already been charged, I believe that the result has been to set the inquiry off in the wrong direction. I shall return to this point later, but must first record how matters went in the Divisional Court, omitting for present purposes any reference to an alternative ground of relief concerning the Director's refusal to wait whilst the applicant pursued his application for legal aid, which failed in the Divisional Court and was not renewed on appeal.
After recording that the specific purposes for which leave was granted were to quash the section 2 notice dated 24 June 1991, and to require the applicant to be cautioned in accordance with paragraph 16.5 of Code C before being called upon to comply with the requirements of a section 2 notice, the court began by noting that these two grounds rested upon substantially the same basis; namely that if the notice could lawfully be served after the person under investigation had been charged his constitutional right of silence would be lost, at any rate if a caution were not administered. To this counsel for the Director had replied that the plain purpose and effect of the Act was to deprive suspected persons of the right to silence in cases which were reasonably considered by the Director to involve serious or complex fraud, whilst mitigating this departure from normal constitutional principles by the restrictions on admissibility created by section 2(8). The court went on to record that the issues thus created had been narrowed by the acceptance on the part of the applicant's counsel that the right of silence could not be invoked against the Director prior to the charge of the suspected person, and by counsel for the Director that if, as he submitted, the power to require information did not cease at the time of charge then it did not cease at all (save in cases where the charge was not pursued) until the investigation came to an end on the conviction or acquittal of the person charged.
I will not attempt to summarise the close reasoning of that part of the judgment under appeal which explains the reasons why, but for the authority of Reg v Director of Serious Fraud Office, Ex parte Saunders, 138 NLJ 243, the Divisional Court would, in company with Mr Russell QC, have preferred the first of the grounds of relief, but I believe that the following quotations  1 All ER 730, 736-737, 738, provide a fair illustration:
"Faced with the myriad opportunities for the concealment of fraudulent activities which companies and trusts provide, Parliament has given the Serious Fraud Office the power to call upon a suspected person to come into the open, and to disclose information which may incriminate him. The only question in the present case is how far Parliament has gone down that road. How far does the Act of 1987 remove the protection afforded by the Act of 1984 and the Codes of Practice issued pursuant to it? There is nothing in the Act of 1987 which expressly removes any part of that protection. Mr Collins points out in this connection that Code C was approved by both Houses of Parliament with full knowledge of the Act of 1987. Yet he accepts, as we think he must, that if a section 2(2) notice had been served upon the applicant before he was charged it would have overridden the caution which was presumably administered to him upon his arrest. This follows by necessary implication from the plain words of section 2. The question remains whether the caution which was undoubtedly administered to him when he was charged can similarly be overridden by the subsequent section 2(2) notice. It goes without saying that once a person is charged his status is changed. He becomes the subject of criminal proceedings. Subject to his prima facie entitlement to bail, and to the safeguards contained in sections 38 and 46 of the Act of 1984, he is liable to be detained until trial. Mr Collins's primary submission was that, at any rate so far as the eliciting of information from the applicant himself was concerned, the investigative process contemplated by sections 1(3) and 2 of the Act of 1987 must be taken to have come to an end at the time of charge, and to have been replaced by the process of prosecution pursuant to section 1(5) . . .
"Mr Pleming invited us to distinguish A v HM Treasury  1 WLR 1056 on the ground that there was no restriction upon the use to which information gained by the exercise of the inquisitorial power there under review could be put by the prosecution, whereas in the present case its use was restricted by section 2(8). We were not persuaded that this was a sufficient ground for distinguishing the two cases. True it is that 'a statement' by a person in response to a requirement under the section may only be used for one or other of the specified purposes, but there is no restriction upon the use by the prosecution of incriminating information or evidence obtained as a result of such a statement. The whole purpose of imposing a section 2 requirement upon a suspected or accused person must be to obtain from him information and evidence which in an appropriate case, and subject only to the subsection (8) restriction on the use of statements made by him, can be deployed against him. We regard it as almost unthinkable that Parliament should have authorised the Serious Fraud Office to continue the exercise of inquisitorial powers against the accused not merely after he had been charged but also (as Mr Pleming accepts and asserts) throughout his trial."
The court concluded this part of its judgment by explaining why it regarded the discretionary powers of the trial judge as insufficient to safeguard against an abuse of the power of interrogation, and by stating, at p 740:
"we should have been minded in the absence of later authority to hold that the power of the Serious Fraud Office to require answers from a person in relation to a suspected offence came to an end when he was charged with that offence."
The later authority was, of course, Ex parte Saunders, which the Divisional Court proceeded to analyse in detail. The judgment then continued, at pp 741-742:
"Thus it is plain from these dicta, as well as from the ratio decidendi of the case, that the Divisional Court regarded the Director's powers under section 2 to obtain information and documents from third persons as remaining unimpaired after the person under investigation had been charged. Mr Collins reserves the right to challenge that proposition elsewhere. For our part we would regard it as unassailable. It would be astonishing if the Director's powers to require relevant information about suspected offences from third parties were brought to an end by the bringing of a charge against the person under investigation. This, however, does not cover the case of the Director's power to question the person under investigation about the offence with which he has been charged. We note that the court found nothing in the wording of section 2 which persuaded them that the course taken in A v HM Treasury should be followed, but they may have taken that view precisely because, so far as B was concerned, it was a case of questions being put to a person who had been charged. The court stated obiter that there is no reason why a section 2(2) notice should not be issued to the applicant after he had been charged, but this statement was accompanied by the clear and crucial corollary that the person who had been charged would have first to be cautioned and questions could only be put for the paragraph 16.5 purposes. In other words, he would first have to be told in the language of paragraph 10.4, 'You do not have to say anything unless you wish to do so . . .' The question remains how the Divisional Court's acceptance of the Director's right to serve a section 2(2) notice for the purpose of questioning a person who has been charged, on pain of penalty under section 2(13) if he refuses to answer, can be reconciled with his right to invoke the protection of the caution. The answer, as it seems to us, must be that the court regarded the enhanced right of silence which common law and statute have traditionally conferred upon a person once he has been charged as providing him, in the
language of section 2(13), with a 'reasonable excuse' for failing to comply with the requirement. The dicta in Reg v Director of Serious Fraud Office, Ex parte Saunders are not, of course, binding on us, but they are so closely linked to the ratio that we think it would be wrong to depart from them. In the light of the judgment in that case we would uphold the applicant's objection to the proposed interview on the third rather than the first of the grounds put before us. The substantial result is much the same on either footing."
In the result the court granted the following declaration, at p 743:
"Declaration granted that before asking questions relating to an offence with which a person under investigation had been charged, the Director of the Serious Fraud Office was required to inform that person that he was not obliged to answer such questions but, if they were answered, what was said might only be used in evidence against that person where he was charged with knowingly or recklessly making a false or misleading statement or where the answer was inconsistent with any evidence he might give at a later criminal trial."
I arrive at length at the present appeal, one striking feature of which is that, whilst not formally abandoning them, counsel for the applicant has not pressed with any vigour either of the grounds upon which the Divisional Court decided in his favour, namely that the Director was entitled to ask questions after charge but only after administering a fresh caution, and that the fact of such a caution would be a reasonable excuse for a refusal to answer, within section 2(13) of the Act of 1987.
My Lords, I feel no doubt that counsel were right to take this course. Either the Director was empowered not only to pose questions but to compel an answer, or she was not. If she was, then the administration of a caution which presupposed that an answer could not be compelled would be a self-contradictory formality which Parliament cannot possibly have intended. Conversely, if the Director had no powers of compulsion after charge then the issuing of yet another caution would make no difference. Equally, there could be no logic in treating the existence of the further caution as a reasonable excuse for not answering, for the words of the caution would make sense only if the Director could not compel an answer -- in which case no excuse, reasonable or otherwise, for silence would be required. Thus, I think it clear that the declaration as granted cannot stand: a conclusion in which the Divisional Court would undoubtedly have concurred, but for the weight attached to Ex parte Saunders, 138 NLJ 243.
I turn therefore to the relief for which the applicant principally contends, namely a declaration substantially similar to that which was granted in A v HM Treasury  1 WLR 1056. This was advanced on two grounds. First, that on the true interpretation of the statute the investigation, and hence the Director's compulsory powers, came to an end for all presently material purposes when the applicant was charged. Secondly, that even if the statute does not expressly so provide, a kindred limitation of her powers must arise by necessary implication. Before examining these propositions I must make good the comment that the concentration on the moment of charging has tended to lead the inquiry in the wrong direction. I say this because, of the several versions of the "right of silence" contained in the list previously given, only the fifth hinges upon the fact of the suspect having been charged; and that is an immunity against being asked questions of any kind. Yet this appears of no practical importance here, for there is no reason to suppose that the applicant has the least objection to the Director asking him questions so long as (in line with the cautions already administered) he does not have to answer. The immunities which he does say the Director is wrongfully seeking to infringe are the second and third in the list, which protect the citizen from being compelled to answer questions on pain of punishment; and these are not concerned specifically with the question whether the citizen has or has not been charged with an offence. Thus, although I recognise that the most striking feature of the events in suit is, from the point of view of a criminal lawyer, that they happened after charge, I cannot accept that this is the only perspective in which they should be viewed.
Nevertheless, it is only proper to recognise that this is the ground on which the parties have chosen to engage, and to approach the arguments accordingly.
The case for the applicant
The applicant seeks to uphold the judgment of the Divisional Court on two quite different grounds. First, that reading the words of the Act of 1987 in their natural sense the Director's power to require an answer from a person under investigation ceases at the moment of charge. Secondly, that whatever the words of the statute may suggest, the conflict with Code C and with a long established "right of silence" is so acute that, whatever the statute may appear to say, it must be understood as subject to an implied exception in the case of persons who have been charged.
I will begin with the first line of argument, which asserts that the investigation of a suspect ends when he is charged. With sincere respect to Russell LJ and the members of the Divisional Court I find this proposition impossible to sustain. The Director has the following relevant powers under sections 2(2) and 2(3) of the Act:
(1) To require the person whose affairs are to be investigated to answer questions and furnish information with respect to any matter relevant to the investigation.
(2) To require the person whose affairs are to be investigated
(a) to produce documents appearing to relate to any matter relevant to the investigation, or account for their absence, and (b) to provide an explanation for any such document.
(3) To require any other person to answer questions and furnish information with respect to any matter relevant to the investigation.
(4) To require any other person (a) to produce documents appearing to relate to any matter relevant to the investigation, or account for their absence, and (b) to provide an explanation for any such document.
The only feasible ground, as a matter of language, for contending that the right to ask questions and demand answers comes to an end upon charging is that the suspect is no longer a person whose affairs are to be investigated so that there can no longer be "any matter relevant to the investigation." Yet this interpretation is unreal. True it is that in a simple case the investigation of a suspect's criminality may well terminate at the moment of charging, but often this will not be so. As paragraph 16.1 of Code C makes clear, the police officer is obliged to charge a suspect as soon as he believes that there is sufficient evidence for a prosecution to succeed, but nobody could expect the police simply to cease work on the case and rely at the trial only on the material revealed up to the moment of charging.
Furthermore, although I recognise that the powers of the Director are circumscribed by section 1(3) and the opening words of section 2(1), so as to relate only to the investigation of suspected offences, it remains true that the powers which I have summarised are concerned with "the affairs" of the suspect, and these must to my mind extend beyond the matters which have caused the charge to be laid.
Quite apart from this, however, the practical consequences of the interpretation advanced for the applicant show clearly that it cannot be right. If "the investigation" has ceased for the purpose of enabling the Director to question the suspect, then they must equally have ceased so as to terminate all her other powers. This means that even as regards third parties who neither have nor need the protection of Code C, and who have never had such protection in the past, the police officer cannot demand the production of a document relevant to the suspected offence. Nor can he demand of such persons answers to the kind of questions to which, it is conceded, he could have demanded answers before the suspect was charged. Such a result would be so illogical, and so much out of tune with the extensive inquisitorial powers which are undeniably created by the Act, that Mr Collins accepted that this could not be the meaning of section 2. Yet if "the investigation" continues after charge as regards some of the Director's powers, how can it cease as regards others? As a matter of interpretation the only possible answer is that it cannot.
This leads to the applicant's second ground for supporting the judgment under appeal, namely that whatever the words of the Act may mean, they must be understood as qualified by a tacit exception, preserving the ancient right of silence in its particular manifestation of the immunity from being asked questions after charge, previously embodied in the Judges' Rules and carried forward into paragraph 16.5 of Code C.
That there is strong presumption against interpreting a 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  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. Finally, the legislation differs as to the
mode of enforcing compliance with the questioner's demands. In some instances failure to
comply becomes a separate offence with prescribed penalties; in others, the court is given
a discretion to treat silence as if it were a contempt of court.
In the light of these unsystematic legislative techniques there is no point in summarising the various statutes drawn to our attention. They do no more than show that the legislature has not shrunk, where it has seemed appropriate, from interfering in a greater or lesser degree with the immunities grouped under the title of the right to silence. Nor do I believe that anything is to be gained by analysing the reported cases in what is presently a contentious area of the law. Most of them are concerned with admissibility of evidence, which is not in issue here; and none, aside from those already mentioned, arose where in the face of clear and general language it was contended that Parliament must nevertheless have intended the words of the statute to have only a limited effect.
It is true that the Act of 1987 goes further than any other drawn to our attention. In legislation concerned, for example, with Department of Trade inspections under the Companies Acts, the disclosure of incriminating evidence is a by-product of an investigation directed to other ends, whereas the whole purpose of this Act is to extract material which will lead to a conviction. It is also true that section 2(8) does not provide complete protection, since information obtained in answer to questions (such as, for example, the location of funds in a foreign bank account) can lead to the disclosure of damaging facts which once known can be proved by other means, even if the answers themselves cannot be put in evidence. This is not, however, a unique feature of this particular type of legislation. Moreover, even the Act of 1984 itself, which is the foundation of Code C, provides in section 76(4) that evidence discovered as the result of an inadmissible confession is not ipso facto rendered inadmissible. In my view these characteristics serve only to require the court to be more than ever cautious before concluding that Parliament really intended to exclude one of the immunities which I have listed; and as I have suggested, the words of the Act of 1987 admit of no doubt.
Accordingly, if the applicant is to succeed he must show that the context requires a qualification on the following lines to be implied into section 2(2): "Provided that nothing in this Act shall require the person under investigation to furnish any information with respect to any suspected offence in relation to which he has been charged, except to the extent permitted by paragraph 16.5 of Code of Practice C issued under the Police and Criminal Evidence Act 1984, or any modification or re-enactment thereof." (I have included the concluding six words, although the need for them was not explored in argument, since without them the position would be frozen as it was in 1987, which would be absurd.) This large implication is said to be justified because Parliament must have intended to preserve the long-standing immunity against questioning after charge, and cannot have intended to create a regime which would "make a mockery of" (A v HM Treasury  1 WLR 1056, 1060) the caution required by what is now paragraph 16.2 I find this unconvincing on several counts.
In the first place the notion that the moment of charging marks a watershed in the relationship between the suspect and the police is not strictly accurate, since under paragraph 11.4 the duty to abstain from questioning ceases as soon as the officer considers that there is sufficient evidence against the suspect for a prosecution to succeed, and there may then be an appreciable interval before the custody officer decides to charge him pursuant to paragraph 16.1. Even on the applicant's argument the immunity against questioning is overridden by the Act during this interval.
Secondly, this particular immunity is much less ancient than others grouped under the rubric of the right of silence. It appears to reflect a course of practice, developed during the latter part of the 19th century, to abstain from questioning, not after charge, but after the suspect had been taken into custody; and it appears that in general any evidence obtained from such questioning was regarded as inadmissible: see Archbold's Criminal Pleading Evidence & Practice, 28th ed (1931), p 407. The practice does not, however, appear to have been universal, as witness the embarrassing conflict of judicial opinion recorded in the brief history of the Judges' Rules which forms the introduction to the 1964 revision of the rules (see Practice Note (Judges' Rules)  1 WLR 152). Moreover, although the Rules sprang from this conflict, they did not in terms go further than saying that persons in custody should not be questioned without first being cautioned. Evidently, this was insufficient to resolve the controversy, as witness the account given in 1929 in the Report of the Royal Commission on Police Powers and Procedure (1929) (Cmd 3297), paras 161 et seq.
As already noticed, the debate on this issue seems to have been concentrated on the position of the person in custody, and successive editions of Archbold continued until as late as 1959 (34th ed) to express the inhibition against questioning in terms of such a person. See also Rex v Brown (Alfred) (1931) 23 Cr App R 56. The Royal Commission did, however, recognise that custody and charge would not necessarily coincide, and that there might be intervals of time whilst the suspect was under arrest but not yet charged, and whilst he was on bail after being charged; and the recommendation was made that the prohibition of questioning should also apply to these periods. It was not, however, until the Judges' Rules were revised in 1964 that the protection was related to the moment when the charge was laid; and as we have seen, the moment at which it attaches has now by Code C been further advanced.
There is, however, one further complication. Certain observations by the Royal Commission, notably concerning an apparent conflict between rules 3 and 7 of the Judges' Rules as they then stood, led the Home Secretary to seek the advice of the judges. The advice received, and the comments of the Home Secretary upon it, are set out in Home Office Circular No 536053/23 dated 24 June 1930. This appears to relate to inhibition from asking questions, save for the purpose of clarification, neither to the charging of the suspect nor to the time when he is in custody, but to the moment when he is cautioned. This lack of clarity appears to have persisted until the formal review of the Rules in 1964.
I have taken a little time to sketch the history of paragraph 16.5 of Code C in order to show that it is not directly linked to the ancient and deep-rooted privilege against self-incrimination. That privilege aims to protect all citizens against being compelled to condemn themselves. But the law has never set out to protect a subject who condemns himself whilst acting of his own free will. Its only concern has been to ensure that he really does so act, by the general rule which excludes from evidence any confession which is not proved to have been voluntary. I think it clear, and indeed the Home Office Circular of 1930 explicitly states (page 4), that it is in order to secure this aim, and in recognition of the fact that a person in custody is in a specially vulnerable position, and hence particularly at a disadvantage in responding to questions in a balanced and measured way, that it has been thought safer both to prohibit questioning after a certain point, and to exclude from evidence answers given to such questioning. Thus, although the rule is now expressed in terms of a prohibition directed towards investigating police officers, it is in essence a development of the law relating to the admissibility of confessions.
Once this is recognised the reasoning of the applicant's argument falls away. We are not concerned here with the admissibility at the trial of responses to questions put by the Director; section 2(8) takes care of that. Nor are we concerned with ensuring that the responses are voluntary, since the whole purpose of section 2 is to ensure that they are not. This being so, I can see no reason to force on to section 2 an unspoken qualification with which it has nothing to do.
It remains to mention a point much relied upon by the applicant, namely that if section 2 stands unqualified, the investigation will continue in being, and hence the inquisitorial powers of the Director will continue to be exercisable, until the prosecution is either dropped, or concluded by a verdict. Counsel conjured up for us the picture of the accused person, after a gruelling day in court, returning to the cells to be met with the sight of an official of the Serious Fraud Office, armed with a further batch of questions, which he would be forced to answer on pain of being prosecuted for another offence. I am not convinced that even in theory this is an accurate reflection of section 2, for I think it possible that in many cases the investigation will have concluded at an earlier stage. But we do not need to solve this conundrum, for the picture painted is unreal. I find it impossible to believe that the Director would contemplate sending an official to interview a defendant during his trial, even if there were anything to be gained from such a course, which is hard to see, given that his answers would not be admissible. But aside from this there are ample remedies to ensure that the Director's powers are not abused, either at long range through the medium of judicial review, or in a more peremptory manner through the power of the trial judge to ensure that the conduct of the trial is fair. Other than in a most exceptional case, I doubt whether a judge who heard that a defendant in the charge of a jury was being interrogated under compulsory powers would have
a moment's hesitation about what to do. I am unable to accept that the supposed reductio and adsurdum is a sufficient ground for reading into the Act a qualification which is not there.
For these reasons I conclude that as a matter of interpretation the powers of the Director do not cease, as regards the questioning of the person under investigation, when he is charged; that the principle of common sense, expressed in the maxim generalia specialibus non derogant, entails that the general provisions of the Code yield to the particular provisions of the Act of 1987 in cases to which that Act applies; and that neither history nor logic demands that any qualification of what Parliament has so clearly enacted ought to be implied.
In conclusion I wish to emphasise that if this appeal is allowed the House will not thereby have chosen to re-establish in relation to a limited class of offence an inquisitorial method of ascertaining the truth in criminal cases which English law has long since repudiated in favour of an adversarial process. We were much pressed in argument with submissions that, although fraudulent conduct has become a serious social evil, there are other evils just as grave, or even graver, which have not attracted any special powers; that if the reason for giving exceptional powers to the Serious Fraud Office is that many frauds involve complicated transactions which are difficult to unravel, then the same could be said of the long and complex trials (for instance, arising from charges of affray, or of the importation and supply of prohibited drugs) to which no such powers have been applied; and that, moreover, the powers of the Office are made available even where the transactions in question are not complicated, since the Act applies to "serious or complex fraud" -- not "serious and complex fraud."
Now these and similar comments would require careful scrutiny if the thrust of the argument were to the effect that Parliament could not have intended to establish an inquisitorial regime of this kind in relation to serious or complex fraud alone. But in fact no such argument is or could be made, for it is indisputable and undisputed that this is just what Parliament set out to do, and has effectively done. In truth the adverse comments are criticisms, not of the Director's contention that the powers created by the Act apply in the situation now under review, but of the policy and scope of the Act itself. These we may not entertain. As Windeyer J said in Rees v Kratzmann (1965) 114 CLR 63, 80:
"If the legislature thinks that in this field the public interest overcomes some of the common law's traditional consideration for the individual, then effect must be given to the statute which embodies this policy."
In the present case the only issue is whether there is something in the language of the Act or by necessary implication, to show that the policy embodied in the Act should not be given effect as regards the questioning of a suspect who has been charged. Being of the opinion that there is not, I would allow this appeal.
Appeal allowed with costs in Divisional Court and House of Lords not to be enforced without leave of Divisional Court.
Treasury Solicitor; Garstangs.