Attorney General for Gibraltar v May
| Jurisdiction | England & Wales |
| Judge | HIRST L.J,WARD L.J.,ROBERT WALKER L.J,HIRST L.J. |
| Judgment Date | 06 November 1998 |
| Judgment citation (vLex) | [1998] EWCA Civ J1106-21 |
| Docket Number | Case No.Chani 97/1431 |
| Court | Court of Appeal (Civil Division) |
| Date | 06 November 1998 |
[1998] EWCA Civ J1106-21
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
MR. JUSTICE EVANS-LOMBE
Royal Courts of Justice
Strand
London WC2A 2LL
Lord Justice Hirst
Lord Justice Ward
and
Lord Justice Robert Walker
Case No.Chani 97/1431
MR. J. GOLDBERG Q.C. and MR. V. JOFFE (instructed by Messrs. Goldkorn Davies & Mathias) appeared on behalf of the Appellant.
MR. R. HOWE (instructed by Messrs. Dibb Lupton Alsop (Manchester)) appeared on behalf of the Respondent.
Introduction
This an appeal by the plaintiff Her Majesty's Attorney-General for Gibraltar (the Attorney-General) against the order of Evans-Lombe J. dated 24 July 1997 whereby the judge refused the Attorney-General's application to vary his implied undertaking so as to permit him to use an affidavit of assets, which was sworn in this action by the first defendant Mr. Geoffrey Peter May (the respondent), for the purpose of the prosecution of the respondent in Gibraltar for alleged criminal offences. The affidavit was sworn pursuant to an order of Rattee J. dated 4 October 1996 which was ancillary to a Mareva injunction against him and five other defendants who are members of his family, but who are not concerned in this appeal. The Mareva injunction prohibited the respondent from disposing of or dealing with or diminishing the value of his assets in the jurisdiction up to the value of £380,000.
The factual background
From September 1972 until his suspension in 1995 the respondent was employed in the Civil Service, and during most of his career he worked in the Ministry of Defence in England. However, from May 1988 to July 1993, which is the key period so far as this case is concerned, he worked on secondment as the Command Cashier in the Cash Office in the Ministry of Defence at H.M. Naval Base in Gibraltar. As Command Cashier he was in charge of the Cash Office, with 16 lower grade civil servants under him. When he returned to the UK in 1993 he was not under any suspicion, and took up a post again in the Ministry of Defence.
During the period that the respondent worked in Gibraltar, very substantial sums of money, totalling at least £370,000, were stolen from the Naval Base. In May 1994 a file containing a number of important records was destroyed by fire. One of the Administrative Officers directly under the respondent's supervision, a Mrs. Maria Elena Canilla (Mrs Canilla), later admitted that she was responsible, and she gave several voluntary statements admitting misappropriations from 1989 onwards, as a result of which she was charged with the theft of the missing funds and with false accounting.
During the course of her statements Mrs. Canilla implicated the respondent in the misappropriations from at least 1991 onwards. In consequence the respondent was interviewed in the UK on 20 July 1994 and 31 August 1994 by the MOD Police Fraud Squad when he voluntarily provided two witness statements. In these he admitted having received over £57,000 of money and gifts from Mrs. Canilla, but contended that in order to hide these sums of money and gifts from his wife, whom he was in the process of divorcing, he placed the funds in accounts or names of the other five defendants. At this juncture he was not charged for lack of evidence.
However, in September/October 1996 Mrs. Canilla was re-interviewed and made further voluntary statements, in which she not only confirmed the respondent's implication in the fraud, but also portrayed him as playing a substantial and even a guiding role. Furthermore at this juncture she agreed to turn "Queen's evidence" against him. On 9 January 1998 she pleaded guilty to a number of offences and was sentenced to 18 months imprisonment by the Chief Justice of Gibraltar in the Gibraltar Supreme Court.
Following the ex-parte grant of the Mareva injunction the writ was issued on 7 October 1996 claiming inter alia:-
"1. an inquiry as to what monies or other property belonging to the Plaintiff have been misappropriated or otherwise received or dealt with by the Defendant in breach of his fiduciary duty to the Plaintiff, alternatively, in breach of trust, alternatively, in breach of his contract of employment with the Plaintiff;
2. an account of what is due to the Plaintiff as a result of the making of the inquiry pursuant to paragraph 1;
3. an order that the Defendant do pay to the Plaintiff such sums as are found due upon the taking of the account pursuant to paragraph 2"…
9 months later, on 3 July 1997, an unopposed order was made in the Bow Street Magistrate's Court for the extradition of the respondent to Gibraltar, and on 23 March 1998 he was committed for trial by the justices in Gibraltar to the Gibraltar Supreme Court where he faces an indictment charging three offences of conspiracy with Mrs. Canilla, viz:_
(i) Conspiracy to defraud by stealing and laundering cheques and cash from the MOD in Gibraltar contrary to common law.
(ii) Conspiracy to steal cheques and cash from the MOD in Gibraltar contrary to Section 11(1) of the Gibraltar Criminal Offences Ordinance.
(iii) Conspiracy to commit false accounting contrary to Section 1(1) of the Ordinance.
His trial has been fixed to take place before the Chief Justice of Gibraltar commencing on 16 November 1998. The Mareva injunction has been varied by consent to free funds to permit him to be represented at his trial by Mr. Edward Fitzgerald QC leading a local lawyer and instructed by a firm of solicitors in Gibraltar.
The Constitutional Status and Relevant Law of Gibraltar
Gibraltar is a Crown Colony with internal self-government, the United Kingdom retaining responsibility for defence, foreign affairs, financial stability, and internal security.
Rights equivalent to those laid down by the ECHR, including Article 6, are enshrined in the law of Gibraltar under the Gibraltar Constitution Order, 1969. Gibraltar applies the English common law in the absence of any contrary local enactment.
Thus the law of Gibraltar is identical to the law of England in two important relevant respects:-
(i) In applying the privilege against self-incrimination;
(ii) In clothing the trial judge in a criminal trial with common law powers to exclude evidence if its prejudicial affect outweighs its probative value, or if the admission of the evidence would be unfair.
However in one important respect the two regimes differ, in that in Gibraltar the jury must still be directed that it is dangerous to convict on the evidence of an accomplice in the absence of corroboration, on which the judge still has to direct the jury as to the evidence which is capable of amounting to corroboration in law.
The Affidavit
This is a conventional Mareva affidavit in which the respondent details his assets within the jurisdiction. It is the prosecution's case in Gibraltar that the affidavit sets out significantly greater assets than the respondent could have accumulated legitimately from his salary as a civil servant, and they propose to call expert evidence from an independent accountant to that effect. Although some assets can be proved from other documentary sources such as bank statements, the Attorney-General says that a significant portion of the respondent's assets cannot be proved except by reliance on it.
It would thus form an important part of the prosecution's case, but not a pivotal one, seeing that the Attorney-General will submit that there is strong corroboration in the respondent's own admission of receipt of cash and gifts from Mrs. Canilla, and there is also other corroborative evidence available from other witnesses who testify that they laundered cash sums for the respondent.
Mr. Jonathan Goldberg QC, who appeared before us for the Attorney General, and who is also instructed to lead for the prosecution in Gibraltar, has made it clear that the Attorney- General would not wish to take any step in the prosecution which would offend against the ruling of this court concerning the use of the affidavit, and that he would naturally wish to abide by the letter and the spirit of such ruling, whether or not this is technically binding upon him outside the English jurisdiction.
The Privilege against Self-Incrimination
This of course is a basic common law right of fundamental importance in English law. However, the privilege does not protect a witness against self incrimination in relation to possible criminal offences under foreign law by virtue of Section 14 of the Civil Evidence Act 1968, probably enacting the pre-existing common law (see per Lord Diplock in Rio Tinto Zinc Corporation v. Westinghouse [1978] AC 547 at page 637).
The common law position was recently confirmed by the Judicial Committee of the Privy Council in Brannigan v. Davison [1997] AC 238.
The Judge's Judgment
The judge held, and it is not challenged, that affidavits sworn under compulsion are potentially subject to the same rules in relation to the implied undertaking as documents produced on discovery. He then applied the two well-known tests derived from Crest Homes plc v. Marks [1987] 1 AC 829, where Lord Oliver of Aylmerton, giving the leading speech with which the other members of the Appellate Committee agreed, stated at page 860 that the court will not release or modify the implied undertaking given on discovery save in special circumstances and where the release or modification will not occasion injustice to the person giving discovery. The judge then proceeded to hold that in the circumstances the first test was...
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