Jersey Unreported Judgments
You are here: BAILII >> Databases >> Jersey Unreported Judgments >> Volaw and Others -v- AG [2016] JCA 138 (15 August 2016)
URL: http://www.bailii.org/je/cases/UR/2016/2016_138.html
Cite as: [2016] JCA 138
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You are here: BAILII >> Databases >> Jersey Unreported Judgments >> Volaw and Others -v- AG [2016] JCA 138 (15 August 2016) URL: http://www.bailii.org/je/cases/UR/2016/2016_138.html Cite as: [2016] JCA 138 |
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Before : |
John Martin, QC, President; James William McNeill, QC; Nigel Pleming, QC. |
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Between |
Volaw Trust & Corporate Services Ltd and its directors and other officers Independent Oilfield Rentals IOR Limited Larsen Oil and Gas Drilling Limited Network Drilling Limited North East Oil Limited OPS Personnel Services Limited |
Applicants |
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And |
Her Majesty's Attorney General for Jersey |
Respondent |
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Advocate A. D. Hoy for the Applicants.
Advocate H. Sharp, QC, for the Respondent.
judgment
pleming ja:
1. On 19th August 2015, Her Majesty's Attorney General for Jersey authorised the issue by a Crown Advocate of a Supplementary Notice to the first Applicant ("Volaw") under the Investigation of Fraud (Jersey) Law 1991 ("the 1991 Law"). The notice was served on Volaw on 25 August 2015 and required (amongst other matters) Volaw to produce within 21 days true copies of a list of documents "which appear to the Attorney General to relate to matters relevant to the investigation". The documents, for the company Applicants listed above (and two others), included corporate and financial documents, and also "information as to the existence of any accounts or assets held in relation to [Berge Gerdt Larsen]". Mr Larsen was identified as a "person under investigation". The notice was prefaced by this paragraph:-
"It appears to the Attorney General that there exists a suspected offence involving serious or complex fraud and that there is good reason for him to exercise the powers conferred upon him by the Investigation of Fraud (Jersey) Law 1991".
2. The 2015 Notice appears to have arisen from a request by Mr Larsen to the Norwegian prosecuting authorities to issue letters of request for assistance to the Attorney -General of Jersey to obtain a number of documents from Volaw. This Supplementary Notice followed similar notices issued in 2006 and 2012.
3. Volaw is licensed to conduct trust and company business under the Financial Services (Jersey) Law 1998. The second to sixth Applicants are companies managed and administered by Volaw.
4. The Applicants challenged the notice by an application for judicial review dated 17th September 2015. The central complaint was that no such investigation notice could be issued in so far as it infringed the Applicants' right to rely on the privilege against self-incrimination ("PSI").
5. In October 2015, in response to a request by the Attorney-General seeking an undertaking from the Norwegian tax authorities limiting the use to which documents and information might be put, the Norwegian Director General of Public Prosecutions declined to issue a statement to the effect that it would be acceptable for documents to be disclosed in return for a guarantee that the documents would not be used in criminal proceedings against the company or any of its employees, owners or board members. The letter included the following statement:-
"The proper legal authority in Jersey - the Attorney General - has issued a binding writ to Volaw Trust to disclose specific documents. Without knowing the contents of these documents, the prosecuting authority cannot, under such circumstances, endorse a statement specifying that the information collected and confiscated cannot be used to prosecute those responsible for unlawful acts".
6. The application was heard by Commissioner the Hon. Michael Beloff QC at the same time as considering challenges to notices issued to the same parties, and to Mr Bergen, under the Taxation (Exchange of Information with Third Countries) (Jersey) Regulations 2008, as amended in 2013. Those proceedings also included a PSI ground of challenge. Commissioner Beloff addressed the PSI arguments at paragraphs 98 to 146 of his judgment, but dealing only specifically with the notices issued under the 2008 Regulations as amended. In paragraph 119 there is a reference to the notice under the 1991 Law:-
7. The learned Commissioner dismissed the applications for judicial review in relation to the notices issued under the 2008 Regulations as amended and, when handing down judgment, also refused permission to apply for a judicial review of the decision to issue the notice under the 1991 Law - although there is no formal Act of Court to that effect.
8. The Applicants now challenge that refusal to grant permission by a Notice of Appeal referring to Rule 4(3) of the Court of Appeal (Civil) (Judicial Review) Rules 2000. It appears to be the case (although, again, there is no Act of Court) that Commissioner Beloff refused permission to appeal his decision. In those circumstances, we have considered this Notice of Appeal as an application for leave to appeal under Rule 4(5).
9. The Applicants' grounds contend that the learned Commissioner erred in law in holding as follows:-
(i) The privilege against self-incrimination does not apply in relation to pre-existing documents or material, either at common law or under Article 6, ECHR (referring to paragraphs 104-108, 131(i)-(iii), 132-133 of the judgment);
(ii) The privilege against self-incrimination does not apply where the risk of prosecution would arise in another jurisdiction, either at common law and/or under Article 6, ECHR (referring to paragraphs 135-140 of the judgment).
10. The focus of the argument in this court has been on the first point, whether or not PSI applies to pre-existing documents.
11. The 1991 Law, relevant to this application, provides:-
12. Article 2 is based on and in almost identical terms to section 2 of the Criminal Justice Act 1987. It is to be noted that Article 2(7) limits the circumstances in which a statement made by a person in response to a requirement imposed by virtue of the Article may be used. No such use restriction or immunity arises in relation to existing documents. The absence of such a provision is a clear indicator that the legislative intention was that existing documents could, if necessary, be used in subsequent criminal prosecutions.
13. We start from the position that "a provision depriving a person of such a fundamental right as the right to claim the privilege against self-incrimination is to be strictly construed", but such a right is not absolute and can be qualified - Phillips v News Group Newspapers Ltd [2013] 1 AC 1, at paragraph 56, and Beghal v DPP [2015] UKSC 49, [2016] AC 88, Lord Hughes at paragraph 61.
14. Advocate Hoy, for the Applicants, accepted that the 1991 Law was in sufficiently clear terms to have removed from a person the right or privilege against self-incrimination which might otherwise be held: R v SFO ex p. Smith [1993] AC 1, 40-44 (Lord Mustill) rejecting an argument that the power of investigation ended on charge, concluding:-
15. The argument which he sought leave to present is based upon the protection which, he submitted, should be engaged essentially through Article 6 of the European Convention on Human Rights ("ECHR") as regards pre-existing documents. His submission was that as Volaw was the subject of investigation by the Norwegian Tax Authority it, and its directors and other officers, were to be treated as "charged" according to the autonomous meaning within Article 6 jurisprudence - Ambrose v Harris [2011] UKSC 43, [2011] 1 WLR 2435, Lord Hope at paragraphs 62 and 63, and Beghal, Lord Hughes at paragraph 68:-
16. The argument was then developed that Article 6 of the Convention protects a person (particularly a person charged within the Article 6 meaning) from any obligation to yield up even pre-existing documents unless there is a suitable binding guarantee that any information so obtained will not be used in any subsequent prosecution - whether in Jersey or elsewhere.
17. Advocate Hoy accepted that the position under Article 6 is the subject of conflicting judgments, the Strasbourg Court having held that the right against self-incrimination applies to evidence obtained "in defiance of the suspect's will" but does not apply to information with an "existence independent of the will of the suspect". This terminology is found in Saunders v United Kingdom 23 EHRR 313 (with emphasis added):-
18. Advocate Hoy submitted that these paragraphs have caused considerable difficulty in practice, and have been misunderstood and misapplied by the Court of Appeal of England and Wales in a series of cases - Attorney General's Reference (No 7 of 2000) [2001] 1 WLR 1879, C Plc v C [2008] Ch 1, and R v S(F) [2009] 1 WLR 1489. The argument can perhaps be encapsulated in this paragraph from the Applicants' written contentions:-
"The Appellants submit that in each case the Court of Appeal has mistakenly understood the distinction that is drawn in paragraphs 68 and 69 of Saunders. The crucial word in those paragraphs is 'will', which the Appellants submit is to be understood in the sense of 'free will', the right against self-incrimination attaches to information where the state seeks to overbear the individual's free will ('in defiance of his will') and coerce him into the 'cruel trilemma of perjury, self-incrimination or punishment for non-compliance'. This may arise whether what is sought is documentary evidence, real evidence or testimonial evidence. In contradistinction, material with 'an existence independent of the will of the suspect' is material that may be obtained without coercing the individual into that 'cruel trilemma'. This would include evidence obtained (for example) by a search warrant: although coercive powers are used the individual is not forced to choose between perjuring himself, being prosecuted for non-compliance or providing the very evidence that incriminate him 'in defiance of his will'".
19. This argument had been presented to the learned Commissioner, but rejected by him. In doing so he stated (with detailed case citations added):-
20. Advocate Hoy's argument was that the learned Commissioner had also misunderstood a critical passage in the decision in Saunders. He contended, (as summarised in the passage set out above) that Saunders has made it clear that it was not the nature of the information obtained from the suspect which was the critical element, rather it was how the information had been obtained that is critical to the analysis. The use of a warrant, for example, did not offend the right to avoid self-incrimination; but the use of coercion to overbear the individual's 'will', or the use of a degree of force materially greater than that normally required to obtain the type of material in question.
21. In our judgment there is no indication that the learned Commissioner misunderstood this aspect of Saunders. He had referred in paragraph 123 to the passage from paragraph 69 in the decision in Saunders which we have highlighted. Further it is clear that the learned Commissioner had in mind the issue of the overcoming of 'will'. In paragraph 129 he quoted from Allen v United Kingdom (2002) 35 EHRR CD 289 where the determination of the European Court of Human Rights includes the following passage:-
22. Returning to Saunders, the crucial passage is "it [PSI] does not extend to the use in criminal proceedings of material which may be obtained from the accused through the use of compulsory powers but which has an existence independent of the will of the suspect such as, inter alia, documents acquired pursuant to a warrant". In a detailed Note, submitted after the conclusion of the hearing, Advocate Hoy seeks to persuade us that, on the facts of this case, it would be unlikely that the issue of a warrant would be lawful. We have considered the Note, and consider there is no need to address this argument, a decision whether or not to issue a warrant not yet having arisen. However, the content of the Note reinforces rather than undermines our overall conclusion that there is no difference of substance, in PSI terms, between "documents acquired pursuant to a warrant" (referred to in paragraph 69 of Saunders) and "pre-existing documents acquired pursuant to a notice served under section 2 of the 1991 Law". Both processes involve the use of compulsory powers, and the material obtained has an "existence independent of the will of the suspect". If the warrant procedure under Article 2(4) is not a denial of the right to avoid self-incrimination, it would take very powerful reasoning to demonstrate that an overcoming of 'will' by a less public, but still regulated process did so merely because of the existence of the possibility of fine or imprisonment.
23. Insofar as a logic can be discerned in the Applicants' line of argument on Saunders it would appear to be that the combination of the content of the material and the existence of the possible punishment engaged the will of the individual and thereby altered the nature of the material so that it no longer had an existence separate from that of the suspect. We consider that the learned Commissioner was correct to reject this argument.
24. Perhaps the high point of the Applicants' submissions, as it was before the learned Commissioner, is the reference by Lord Hughes at paragraph 60 of Beghal to "yield up documents" in the sentence: "It [PSI] entitles any person to refuse to answer questions or to yield up documents or objects if to do so would carry an appreciable risk of its use in the prosecution of that person". We agree with the learned Commissioner's observations on this passage, in paragraph 133 of his judgment, emphasising that the reference to "yield up documents" was obiter. We are wholly unpersuaded that his Lordship was there intending to address the ability of a prosecuting authority to demand pre-existing documents under, for example, section 2 of the Criminal Justice Act 1987, or decide that a person in receipt of a notice under that section may lawfully refuse to furnish existing documentation on the basis of PSI.
25. In our view, if it were not for the observation of Lord Hughes in Beghal referred to above, we would unhesitatingly conclude that the Applicants' contentions do not have any real prospect of success, which is the test this court has recently indicated should be used when considering the possibility of granting leave to appeal from the Royal Court: Crociani v Crociani [2014] JCA 089 at paragraph 51.
26. However, and bearing in mind that the Privy Council may be invited to consider the question of PSI in relation to the challenge to the notices issued under the 2008 Regulations as amended, we propose to treat this application for leave to appeal as a renewed application for leave to apply for judicial review. We grant permission, but for the reasons set out above and in the judgment of the learned Commissioner, we dismiss the application. And, in so far as this is an appeal, we dismiss the appeal.
27. We will consider any written submissions (if so advised) addressing consequential relief, including costs, to be lodged within 14 days of the date of the handing down of this judgment.