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The various pre‐trial stages of these complex proceedings have been discussed in previous issues of this Journal in Vol. 5, No. 1, pp. 70–72, Vol. 7, No. 3, pp. 274–280, Vol. 8, No. 4, pp. 359–364 and the factual background explained. Depositors in the UK branch of BCCISA (part of the Bank of Credit and Commerce International group which collapsed in 1991 leaving large scale losses) had brought actions for damages in respect of their uncompensated losses against the Bank of England (the Bank) in relation to its discharge of its statutory functions under the Banking Act 1979. They argued (1) that the Bank's licensing as a deposit‐taker and subsequent supervision of BCCI amounted to misfeasance in public office and/or (2) that they had, under European law, enforceable rights against the Bank conferred on them by the First Council Banking Co‐ordination Directive (77/780/EEC) which the Banking Act 1979 implemented in the UK. In May, 2000 the House of Lords definitively settled as a matter of law the second ground of the claimants' argument ruling that the European Directive in question did not have the effect of conferring rights in damages against the Bank on the depositors. In the same judgment the House of Lords ruled as a matter of law that the essential elements of the tort of misfeasance in public office (which by this stage is the only possible legal ground of claim available to the depositors) were to be found ‘where a public officer acts knowing that he has no power to do the act complained of and that the act will probably injure the [claimant]. It involves bad faith inasmuch as that the public officer did not have an honest belief that his act was lawful’ (per Lord Steyn, House of Lords judgment of 18th May, 2000 in these proceedings). This ‘reckless indifference’ which must be proven to exist for a claim against the Bank to succeed must be judged in a subjective sense, their Lordships ruled last year, so that the depositor claimants needed to show knowledge on the part of the Bank that the decision of the Bank would probably damage the Appellants. The question of whether or not the facts pleaded by the claimants reveal a sustainable cause of action against the Bank or whether, as the Bank had argued throughout, they did not and the action ought to be struck out without proceeding to full trial was referred to another House of Lords hearing. It was from that subsequent hearing on whether or not the claim should be allowed to proceed to full trial of the substantive issue of the Bank of England's alleged liability that this decision was made.

The factual background to this House of Lords decision lies in the 1991 collapse of the Bank of Credit and Commerce International (BCCI) Banking Group. The Appellants (who were the Appellants in the House of Lords) were depositors who had lost monies in the collapse of BCCI. BCCI itself was named as a Plaintiff since it was an assignee of the claims of Plaintiff depositors. The Plaintiffs (who were the Appellants in this appeal and are hereafter referred to as such) made a very large number of allegations against the Bank of England (the Bank) with regard to its exercise of its powers and discretions under the statutory scheme of Banking Supervision contained in the Banking Acts of 1979 and 1987. These allegations related to (inter alia) the Bank's decision to grant a full licence to BCCI in 1980, its failure subsequently to revoke that licence and various other acts and omissions in its supervisory role up to BCCI's collapse in 1991.

Serious fraud trials are the sum of their component parts such that examination of one particular area often repays attention. The Roskill Fraud Trials Committee's criticisms were the backdrop for the Criminal Justice Act 1987 and the enhanced investigatory powers that are to be found in s. 2 thereof. Seven years after the enactment of the 1987 Act it is apposite to examine whether in derogating from the confines of traditional criminal evidential practices a certain level of procedural and substantive fairness has been maintained. The Police and Criminal Evidence Act 1984 and its application to the rights of a suspect are also of importance. A critical examination of the above issues demands steering a careful course between normative rules and theory: in this area above all others it is impossible and undesirable to divorce one from the other.

Serious fraud trials are the sum of their component parts such that examination of one particular area often repays attention. The Roskill Fraud Trials Committee's criticisms were the backdrop for the Criminal Justice Act 1987 and the enhanced investigatory powers that are to be found in s. 2 thereof. Seven years after the enactment of the 1987 Act it is apposite to examine whether in derogating from the confines of traditional criminal evidential practices a certain level of procedural and substantive fairness has been maintained. The Police and Criminal Evidence Act 1984 (PACE) and its application to the rights of a suspect are also of importance. A critical examination of the above issues demands steering a careful course between prescriptive rules and theory: in this area above all others it is impossible and undesirable to divorce one from the other.

The aim of this article is to examine those philosophical and structural factors which have been responsible for shaping sentencing policy for economic crime in the UK and to analyse some key decisions of the Court of Appeal (Criminal Division) in this area.

Section 2 of the Criminal Justice Act 1987 abrogates the right to silence since a suspect is required to answer questions in pre‐trial investigations by the SFO, although the answers are inadmissible as evidence unless proceedings are brought under s. 2(14) for giving false information or by s. 2(8), where the individual ‘makes a statement inconsistent with it’. In a previous article, the writer has considered the necessity and effectiveness of s. 2 powers. It is also instructive to analyse the conceptual basis of s. 2 powers since this will aid in the interpretation of statutory ambiguities and will allow the courts to have a uniformity of approach when seeking to resolve the statutory ambiguities. The conceptual basis is also important as concerns the resolution of where the line lies between the effective investigation of offences pursuant to s. 2 and the rights of the individual subject to such questioning. A critical examination of the above issues demands steering a careful course between normative rules and theory: in this area above all others it is impossible and undesirable to divorce one from the other.

It has been commented that the topic of enforcement needs little introduction ‘since it is readily apparent that the imposition of the [then] new regulatory structure will prove to be a largely futile exercise if regulation cannot be effectively enforced’. Indeed, Professor Gower has made the comment that ‘it is not much use having regulations unless they are enforced’.

This case, when it arose at first instance, was considered last year in the pages of this Journal (see ‘SIB Court Action against forex trader’, Vol. 5(4), Journal of Financial Regulation and Compliance, December 1997, p. 361.

Royal Brunei Airlines (the airline) had, in 1986, appointed Borneo Leisure Travel (BLT) as its agent for passenger and cargo transport sales in Sabah and Sarawak. Mr Tan was the founder of BLT, its managing director and its principal shareholder (the only other director and shareholder being his wife) and was, in effect, in sole control of BLT.