Bank of England v Riley and Another
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE RALPH GIBSON,LORD JUSTICE DILLON |
| Judgment Date | 17 October 1990 |
| Judgment citation (vLex) | [1990] EWCA Civ J1017-3 |
| Docket Number | 90/0901 |
| Court | Court of Appeal (Civil Division) |
| Date | 17 October 1990 |
and
[1990] EWCA Civ J1017-3
Lord Justice Dillon
and
Lord Justice Ralph Gibson
90/0901
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
(Mr. Justice Morritt)
Royal Courts of Justice
MR. J. GIBSON-WATT (instructed by Messrs Freshfields) appeared on behalf of the Respondent (Plaintiff).
MR. ACTON DAVIS (instructed by Messrs Kingsford Stacey, London Agents for Messrs Mander & Sharma, Walsall) appeared on behalf of the Appellant (First Defendant).
The Second Defendant did not appear and was not represented.
I will ask Lord Justice Ralph Gibson to give the first judgment.
The question before Mr. Justice Morritt, from whose decision of 8th August of this year this appeal is brought by the first defendant. Miss Riley, is whether Miss Riley was entitled to refuse to answer interrogatories or disclose documents in reliance upon the privilege against self-incrimination, as she claimed, or whether that privilege was excluded by section 42 of the Banking Act 1987 as submitted by the Bank of England, the plaintiff in the action.
Mr. Justice Morritt held that on the true construction of section 42, the privilege against self-incrimination was excluded and that no sufficient reason had been advanced for him to decline, in the exercise of the court's discretion, to order production of the information and documents sought.
The circumstances out of which arose the Bank's investigation and the proceedings and the orders made are described by Mr. Justice Morritt as follows:
"Between 1983 and 1989 Miss Riley ran two organisations called T.C. Vincent Foundation and Yod Publications, in the course of which she obtained money from members of the public. On 4th April 1989 she was arrested and on 20th June 1990 was committed for trial on 53 charges of obtaining money by deception or theft. On 6th November 1989 the Bank of England instituted proceedings under the Banking Act 1987 for injunctions restraining Miss Riley from contravening section 3 of that Act, from disposing of or otherwise dealing with any of her assets pending investigation of suspected contraventions by her of section 3, and for orders for repayment or the appointment of a Receiver pursuant to section 48 of that Act."
On 29th June 1990 Mr. Justice Mervyn-Davies made an order in the proceedings commenced by the Bank that Miss Riley answer interrogatories designed to ascertain what assets she had either within or outside the jurisdiction of this Court and to disclose documents relating to assets held by her outside such jurisdiction. The order was made by consent because there was no dispute that such information and documents were relevant to the Bank's claim. Miss Riley made it clear that she would rely on the privilege against self-incrimination.
It is important to note that it was accepted before Mr. Justice Morritt and in this court that the order made by Mr. Justice Mervyn-Davies was made at the request of the Bank as plaintiff in the action, that the request was made by the Bank within the powers given by section 42 of the 1987 Act and for the purposes of that section; and that the order made by the court was to require Miss Riley to comply with the duty imposed by section 42. The dispute was as to the nature and extent of that duty.
By her affidavit sworn in response to the order of 29th June Miss Riley has asserted, after reference to her committal for trial on 20th June 1990, certain facts on which reliance has been placed with reference to the exercise by the court of its discretion. In that affidavit she referred to the fact that in October 1984 a Mareva injunction had been obtained by a plaintiff in civil proceedings against her and the T.C. Vincent Foundation and that that was followed shortly thereafter by other Mareva injunctions obtained by other plaintiffs.
Next she referred to the list of charges upon which she had been committed for trial and drew attention to the fact that the Crown alleges that part of the alleged deceptions by her were statements made by her that money lent to her would not leave a designated bank account in England, and therefore her answers in response to the order would, or might, reveal that any sum of money lent to her by the complainants in the Crown Court proceedings had been sent off-shore and that that would inevitably strengthen the Crown's arguments against her.
Next there was a reference, in paragraph 12 of the affidavit, that she had maintained that she had sufficient funds available to meet her obligations to those investors in the T.C. Vincent Foundation to whom she owed money, including some of the complainants in the present criminal proceedings. It was said that if her answers in response to the order were to reveal that she did not have such funds, that would make her appear to be dishonest and inevitably strengthen the Crown's arguments that she took from investors' money that she had no intention of repaying.
Lastly there was reference to a fear that her answers might lead to the Bank of England to institute, or cause there to be instituted, prosecutions for criminal contraventions of the Banking Act. Her affidavit concluded with a claim that she feared that her answers might incriminate her and also that an affidavit disclosing all her assets might fall into the hands of third parties who hold judgments totalling £1.4 million against her and that that could be highly prejudicial to persons she describes as "the sponsors" in that those third parties may then take enforcement proceedings relating to the judgments and that that would have a substantially adverse effect upon the sponsors, unless it were possible to show in law that she was holding money for the sponsors as trustee.
It was not in issue before Mr. Justice Morritt, or in this court, that if the privilege exists, an apparently valid claim to the privilege had been advanced.
It was common ground before the judge, and again in this court, that the correct answer to the question raised is to be found by reference to the proper construction of section 42 of the 1987 Act in its statutory context.
The 1987 Act was described in part of its long title as "An Act to make new provision for regulating the acceptance of deposits in the course of a business for protecting depositors and for regulating the use of banking names and descriptions". By section 1 the Bank of England was given the powers set out in the Act and was placed under the duty to supervise the institutions authorised by it and to keep under review the operations of the Act.
By section 3, subject to section 4 which deals with exempted persons, no person shall in the United Kingdom accept a deposit in the course of carrying on a deposit-taking business unless that person is an institution authorised by the Bank under the Act; and any person who contravenes that section is liable, if convicted on indictment, to imprisonment for two years or to a fine or to both. A deposit is defined by section 5 and a deposit-taking business by section 6. A comparable offence had previously existed under section 1 of the Banking Act 1979.
By section 35 of the 1987 Act it is an offence fraudulently to induce the making of a deposit. A person guilty of that offence may, on conviction on indictment, be sentenced to seven years' imprisonment or to a fine or both. Again, a comparable offence had existed under section 39 of the 1979 Act.
The powers for use in investigation of suspected contraventions of section 3 or of section 35 are contained in section 42. That provides:
"(1) Where the Bank has reasonable grounds for suspecting that a person is guilty of contravening section 3 or 35 above the Bank or any duly authorised officer, servant or agent of the Bank may by notice in writing require that or any other person–
(a) to provide, at such place as may be specified in the notice and either forthwith or at such time as may be so specified, such information as the Bank may reasonably require for the purpose of investigating the suspected contravention;
(b) to produce, at such place as may be specified in the notice and either forthwith or at such time as may be so specified, such documents, or documents of such description, as may be specified, being documents the production of which may be reasonably required by the Bank for that purpose;
(c) to attend at such place and time as may be specified in the notice and answer questions relevant for determining whether such a contravention has occurred.
(2) The Bank or a duly authorised officer, servant or agent of the Bank may take copies of or extracts from any documents produced under this section.
(3) Any officer, servant or agent of the Bank may, on producing if required evidence of his authority, enter any premises occupied by a person on whom a notice has been served under subsection (1) above for the purpose of obtaining there the information or documents required by the notice, putting the questions referred to in paragraph (c) of that subsection or exercising the powers conferred by subsection (2) above.
(4) Any person who without reasonable excuse fails to comply with a requirement imposed on him under this section or intentionally obstructs a person in the exercise of the rights conferred by subsection (3) above shall be guilty of an offence and liable on summary conviction to imprisonment...
To continue reading
Request your trial
- A and Others v B Bank (The Governor and Company of the Bank of England intervening)
-
Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others
...Rights) Arrowsmith v United Kingdom (7050/75)(European Commission of Human Rights) Report: DR 19,5 Bank of England v Riley and Another [1992] Ch 475 (CA) ([1992] 1 All ER Bishopsgate Investment Management Ltd (in Provisional Liquidation) v Maxwell and Another [1993] Ch 1 (CA) F Board of Reg......
- Kensington International Ltd v Republic of Congo
-
Hamilton and Another v Naviede and Director of the Serious Fraud Office
...the privilege against self incrimination is not applicable in such inquisitorial proceedings: the Bishopsgate case [1993] Ch. 1; Bank of England v. Riley [1992] Ch. 475; In re London United Investments Plc [1992] Ch. 578. I have considerable doubts whether, in using the word "documents" ......
-
THE PRIVILEGE AGAINST SELF‐INCRIMINATION
...2 'Phipson on Evidence', 14th ed. (1990), Chapter 20. 3 'Cross on Evidence', 7th ed. (1990), Chapter 20. 4 See Bank of England V Riley,[1992] 2 WLR 840; as regards DTI inspectors, see In re London United Investments, The Independent (9th January, 1990); and as to private examinations under ......