R v K
| Jurisdiction | England & Wales |
| Judge | Lord Justice Moore-Bick,His Honour Judge Karsten Q.C. |
| Judgment Date | 28 July 2009 |
| Neutral Citation | [2009] EWCA Crim 1640 |
| Date | 28 July 2009 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | Case No: 20091356/B5 & 200901357/B5 |
[2009] EWCA Crim 1640
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT BLACKFRIARS
Royal Courts of Justice
Strand, London, WC2A 2LL
His Honour Judge Karsten Q.C.
Indictment No. T20077560
Before: Lord Justice Moore-Bick
Mr Justice Holman and
Mrs Justice Rafferty DBE
Case No: 20091356/B5 & 200901357/B5
Mr. Ian Winter Q.C. and Miss Clare Sibson (instructed by BCL Burton Copeland) for the a ppellant
Miss Miranda Moore Q.C. and Mr. Cairns Nelson (instructed by the Revenue and Customs Prosecutions Office) for the respondent
Hearing dates: 11 th June 2009
This is an appeal against a number of rulings made by His Honour Judge Karsten Q.C. in the course of a preparatory hearing held pursuant to section 29(1) of the Criminal Procedure and Investigations Act 1996. The appellant, K, was originally charged on an indictment containing four counts of cheating the public revenue. The Crown now accepts that it does not have sufficient evidence to proceed on counts 1 and 2, which are therefore no longer being pursued. Counts 3 and 4 charge K with failing to account for income tax and capital gains tax in relation to income received in and gains accruing upon funds held in various banks in Switzerland and Liechtenstein.
In February 1978 K married his wife S. Unfortunately, the marriage broke down, the parties separated in January 2000 and in July that year Mrs. K petitioned for divorce. Each party was represented by solicitors who were highly experienced in family proceedings: K by Mr. Raymond Tooth of Sears Tooth and Mrs. K by Mr. Richard Parry of Farrer & Co. On 31 st January 2001 Mrs. K gave notice of her intention to proceed with her application for ancillary relief, thereby giving rise to an obligation on both parties to give disclosure of their financial means.
After some delay K served his Form E on 29 th October 2001. In it he disclosed the existence of various accounts and investment portfolios in Switzerland and Liechtenstein, including an account at Cantrade Private Bank, Zurich into which he had received payments described as “commission”. It was clear from some of the entries in his Form E that the information it contained was not complete. Later that day there was a meeting between the solicitors at the offices of Farrer & Co. at which K was present. The purpose of that meeting and the basis on which it was conducted are in dispute and it will be necessary to examine both questions in greater detail later in this judgment. For the moment it is sufficient to say that, although it is common ground that part of the meeting was held on a “without prejudice” basis, the Crown contends that part was not and that in the course of what we shall call the “open” part of the meeting K made admissions that it seeks to adduce in evidence against him at the trial. In the course of a meeting on 29 th April 2002, which the judge found (and the Crown accepts) was held on a “without prejudice” basis, he made further admissions which tended to implicate him in tax evasion upon which the Crown also seeks to rely.
On 27 th February and 4 th July 2002 Sears Tooth on the instructions of K provided written answers to various questions raised by Mrs. K on the contents of his Form E. In doing so K made various statements about his assets that tend to show that he had failed to account for tax over a period of some years. Copies of K's Form E and answers to the questionnaires were supplied to the Revenue by an informer and now form a significant part of the evidence that the Crown wishes to adduce against him at the trial. Indeed, we were told by Miss Miranda Moore Q.C. for the Crown that without the admissions made by K in his Form E and answers to the questionnaires the Crown has insufficient evidence to pursue the case.
In the course of a preparatory hearing before Judge Karsten Q.C. in January 2009 K argued, among other things, that when swearing his Form E and providing the answers and information in response to the questionnaire received from Mrs. K he was unable to invoke privilege against self-incrimination and so was compelled to disclose information that exposed him to a risk of prosecution. In those circumstances he submits that if his admissions were to be adduced in evidence against him he would be denied the fair trial to which he is entitled by Article 6 of the European Convention on Human Rights. Accordingly, that evidence should be excluded from the trial in accordance with the principle in Saunders v United Kingdom (1997) 23 E.H.R.R. 313. He also submitted that the admissions made in the course of the meetings on 29 th October 2001 and 29 th April 2002 were made in the course of “without prejudice” discussions and therefore could not be adduced in evidence against him at the trial.
Judge Karsten Q.C. held that K had been entitled to invoke privilege against self-incrimination in the ancillary relief proceedings and that accordingly the information he provided was not obtained under compulsion. It did not therefore fall within what the judge described as the “ Saunders exclusionary rule”. He based his decision principally on a passage in the judgment of Charles J. in A v A; B v B [2000] 1 FLR 701 and the decision of this court in Den Norske Bank ASA v Antonatos [1999] Q.B. 271. However, he expressed the view that if the information had been obtained by compulsion it would be unfair to allow it to be adduced at the trial and that he would have exercised his discretion in favour excluding it. He held that the first part of the meeting on 29 th October 2001 was not held on a “without prejudice” basis and that therefore admissions made by K in the course of it were not protected. However, he held that statements made in the course of the “without prejudice” part of the meeting and in the course of the meeting of 29 th April 2002 were inadmissible at the trial.
The judge gave K leave to appeal in relation to the issue of privilege against self incrimination in matrimonial ancillary relief proceedings and the Crown leave to appeal in relation to the question of the admissibility of statements made in the course of “without prejudice” negotiations. He refused K's application for leave to appeal on the issue relating to the nature of the first part of the meeting on 29 th October 2001 which he considered to raise a question of fact rather than law. Having heard full argument on that issue we consider it appropriate to give leave to appeal in respect of it.
Five issues therefore fall to be decided:
(i) whether K was entitled to invoke privilege against self-incrimination in the ancillary relief proceedings to withhold information about income and assets which he had unlawfully failed to disclose to the Inland Revenue;
(ii) if not, whether the information he provided is admissible against him at the trial;
(iii) whether the statements he made during the meeting on 29 th October 2001 about his failure to account for tax on his assets abroad were made in the course of “without prejudice” discussions; if not,
(iv) whether they are admissible against him at the trial;
(v) whether the statements he made in the course of the admittedly “without prejudice” discussions on 29 th April 2002 are admissible against him at the trial.
(i) Was K entitled to claim privilege against self-incrimination in the ancillary relief proceedings?
It is convenient first consider Miss Moore's submission that the disclosure in Form E of the existence of an account at a foreign bank was not of itself incriminating since the form speaks at the date on which it is verified and not as to the past. On that basis she argued that the existence at that date of the account at Cantrade Private Bank did not indicate one way or the other how long it had been held.
In Rio Tinto Zinc Corpn v Westinghouse Electric Corpn [1978] A.C. 547 at page 574 Lord Denning described the position as follows:
“… once it appears that a witness is at risk, then “great latitude should be allowed to him in judging for himself the effect of any particular question”: see Reg. v. Boyes (1861) 1 B. & S. 311, 330. It may only be one link in the chain, or only corroborative of existing material, but still he is not bound to answer if he believes on reasonable grounds that it could be used against him. It is not necessary for him to show that proceedings are likely to be taken against him, or would probably be taken against him. It may be improbable that they will be taken, but nevertheless, if there is some risk of their being taken—a real and appreciable risk—as distinct from a remote or insubstantial risk, then he should not be made to answer or to disclose the documents.”
In Rank Film Distributors Ltd v Video Information Centre [1982] A.C. 380 Lord Wilberforce said at page 443D:
“… whatever direct use may or may not be made of information given, or material disclosed, under the compulsory process of the court, it must not be overlooked that, quite apart from that, its provision or disclosure may set in train a process which may lead to incrimination or may lead to the discovery of real evidence of an incriminating character. In the present case, this cannot be discounted as unlikely: it is not only a possible but probably the intended result. The party from whom disclosure is asked is entitled, on established law, to be protected from these consequences.”
The same issue arose for consideration in Socieda Nacional de Combustiveis de Angola UEE v Lundqvist [1991] 2 Q.B. 310. Staughton L.J., having considered a number of earlier...
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