Page 149 - Deception at work all chapters EBook

150 Deception at Work

or malicious or when otherwise privileged information is obtained by illegal means (see the
cases of Dubai Aluminium and Memory Corporation v Sidhu (1999) where the courts ruled that the
work product of investigators was not privileged because they had broken the law in obtaining it). But
this does not necessarily mean that the evidence will be excluded although it may be regarded
as ‘tainted’ and lacking credibility. Breaches may also be used to discredit the investigation
generally or to undermine an otherwise solid case. The rule is that investigators must not
break the law.

Important developments in the UK law

INTRODUCTION

There are a number of new and not-so-new laws that are relevant to investigations and inter-
views. The most important of these are described below.

THE POLICE AND CRIMINAL EVIDENCE ACT

The Police and Criminal Evidence Act 1984 (PACE), sets out the framework for interviews by
police officers and others ‘charged with the investigation of crime’ when – and only when
– criminal prosecution in England, Wales and Northern Ireland is contemplated. Scotland has
slightly different procedures, as it would.

The English rules are ambiguous and it is far from clear whether they apply only to full-
time, professionally trained investigators or to anyone (such as a human resources manager)
who happens to be ‘charged’ on one occasion to enquire into a small matter. Lawyers, espe-
cially when they are on fees, disagree over the applicability of the rules and stated cases go
both ways.

However, your safe course is to assume the widest interpretation of the Act and thus, when
you:

• have reasonable grounds to believe that the suspect has committed a criminal offence,
• and you intend to prosecute through the criminal courts,

you should caution him with the words:

Example: ‘You do not have to say anything. But it may harm your defence if you do not
mention when questioned something which you later rely on in court. Anything you do say
may be given in evidence.’

You do not have to caution a subject just because your mother-in-law thinks he has shifty
eyes or because he has a pencil-thin moustache or fancy shoes. But if you have good reasons for
suspecting the person has committed a criminal offence and you do not administer a caution
at the appropriate time, all of your interview evidence may be ruled inadmissible in a criminal
court. This is true even if the suspect is subsequently re-interviewed and cautioned.