Clause 10
The amendments do not meet the objections previously raised.
The opportunity now given to a public servant under investigation of making representations to the Attorney-General was always
available to him: no prosecution would in any event be instituted without preliminary enquiries in the course of which it would be open to the person under investigation to make a statement if he wished to do so.
We remain opposed in principle to this clause. Although the
prosecution would first have to show that the accused had been
maintaining a high standard of living, or possessed or had possessed property disproportionate to his official emoluments, the accused
could then be convicted if he remained silent even though there was
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A further objection is that the clause does not state what tests
the court is to apply in deciding whether an explanation is satisfactory. If it means "consistent with innocence, and not shown to be untrue", the
court will ask, innocence of what criminal offence? If the burden of
proof is to be cast on the defendent he is entitled to know what he must
prove to secure acquittal. For instance if the accused established that
he had been able to live at a standard above that which is commensurate
with his official emoluments because of his gains from gambling, or because he had borrowed money, would this be a satisfactory explanation, Or what if he had obtained the money by illegal means, is it right that in order to defend himself of a charge under the proposed Clause 10, he is forced
admit commission of some other offence.
ว
person whose activities are under investigation to make an
incriminating statement during the investigation and before charges
are even contemplated. This is to be found in the French investigatory procedure, but is a fundamental departure from British
principles.
/The provisions