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Planning Investigations and Legal Background for Tough Interviews 145

or using a television without a licence) are referred to as ‘absolute offences’. They have little
relevancy to corporate fraud cases.

The trial judge will determine what evidence is, and is not, admissible, applying a rule of
‘fairness’ (Section 76 of the Police and Criminal Evidence Act 1984). If evidence has been il-
legally obtained, for example by making threats or promises to the accused or witnesses, the
judge may still admit it but may make adverse comments that reduce its significance. This
makes it imperative that victims understand and comply with the laws and evidential proce-
dures and act fairly.

DISCOVERY AND DISCLOSURE

In all criminal cases, the accused is not required to answer questions, produce evidence that
could be against his interests or to give evidence in court, but there are exceptions. For exam-
ple, if the police execute a search warrant, any documents or other stuff recovered can be produced in
evidence, although the accused is under no obligation to explain it. However, under the Criminal
Justice and Public Order Act 1994 if a person – when questioned – fails to mention any fact
relied on in his defence, the court may draw such inferences as appear proper.

In England people accused of crimes are required to provide details of any alibi they intend
to develop in their defence. For example, if a robber claims that he is innocent and at the time
of the alleged offence was at ballet classes, he is required before trial, to produce details of
the witnesses and other evidence he plans to call to support his alibi. The object of this is to
prevent the prosecution being ambushed at trial by a spurious defence.

Criminal prosecutors are required (under the Criminal Procedure and Investigations Act
1996) to disclose – to the accused’s representatives, before trial – all of the ‘prosecution mate-
rial’ they have, including that which is not part of their case.

This makes it imperative that all evidence (whether important or not) collected in a crimi-
nal investigation is catalogued and preserved so that at the appropriate time, the prosecuting
authority can decide what has to be disclosed. It should be noted that many prosecutions fail
because of technical problems with disclosure. It is a very important issue.

There are circumstances in which information that could be relevant to an opposing party
does not have to be disclosed. In criminal cases this may include the name of a confidential
informant or other material which should be protected in the public interest or by legal pro-
fessional privilege (see below ‘Information Privileged against Disclosure’). The procedures
are complicated and will be handled by lawyers at the appropriate time, but the rule is total
openness with the court.

PENALTIES IN CRIMINAL CASES

If the defendant pleads or is found guilty, the magistrate or judge will impose what he believes
is the appropriate financial, custodial or other sentence, supposedly having regard to the seri-
ousness of the offence, previous convictions (which are not made available to the jury prior to
its decision being reached) and any pleas in mitigation. The latter are often a work of art and
victims of corporate fraud should try, through their counsel, to ensure that the most extrava-
gant excuses are refuted. Victims should also press for financial compensation – although in
criminal cases this is always limited.