R v K
| Jurisdiction | England & Wales |
| Judgment Date | 2009 |
| Date | 2009 |
| Court | Family Division |
Divorce – Financial provision – Ancillary relief – Privilege against self-incrimination – Wife applying for ancillary relief – Husband making admissions relevant to tax position in Form E and during course of meetings – Husband being charged with failing to account for tax after information leaked to Revenue and Customs – Husband objecting to admissions being adduced in evidence at criminal trial – Judge holding admissions admissible apart from those made in course of without prejudice meeting – Husband appealing and Crown cross-appealing – Whether parties to ancillary relief proceedings entitled to invoke privilege against self-incrimination – Whether ‘without prejudice’ communications in ancillary relief proceedings admissible against maker in subsequent criminal proceedings.
The wife petitioned for divorce in 2000 and gave notice of her intention to apply for ancillary relief under the Matrimonial Causes Act 1973. The Family Proceedings Rules 1991, SI 1991/1247 required the parties to provide information about their financial resources using Form E. The rubric at the head of that document stated that a failure to give full and accurate disclosure might result in any order made by the court being set aside, and that criminal proceedings for perjury could be taken against a deliberately untruthful party. The husband served his Form E on 29 October 2001, disclosing the existence of various accounts and investment portfolios in Switzerland and Liechtenstein. He was asked for further information at a meeting later that day (the first meeting), since the information provided was not complete. He made admissions which tended to implicate him in tax evasion during the first part of the meeting, subsequent to which his solicitors put forward proposals with a view to reaching a compromise. He made further admissions regarding his tax position during the course of what was accepted to be a ‘without prejudice’ meeting held on 29 April 2002 (the second meeting). Copies of his Form E and answers to questionnaires from the wife were subsequently supplied to Revenue and Customs by an informer and he was charged with failing to account for income tax and capital gains tax. During a preparatory hearing, an issue arose as to the admissibility of the leaked material. The husband submitted that that evidence should be excluded from the trial as, when swearing his Form E and providing answers to the questionnaires, he had been unable to invoke the privilege against self-incrimination and so had been compelled to disclose information that exposed him to a risk of prosecution. He contended that, in those circumstances, he would be denied the fair trial to
which he was entitled by art 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (as set out in Pt I of Sch 1 to the Human Rights Act 1998) if his admissions were to be adduced in evidence against him. He also submitted that admissions made during the meetings had been made in the course of without prejudice discussions and could therefore not be adduced in evidence against him at the trial. The Crown accepted that part of the first meeting had been ‘without prejudice’, but contended that the husband’s admissions had been made during the ‘open’ part. The judge held that the husband had been entitled to invoke the privilege against self-incrimination in the ancillary relief proceedings and that, accordingly, the information he provided had not been obtained under compulsion. He further held that the first part of the first meeting had not been conducted on a ‘without prejudice’ basis and that therefore admissions made by the husband in the course of it were not protected. However, he held that statements made in the course of the second meeting were inadmissible at the trial. The husband appealed and the Crown cross-appealed. It fell to be determined whether (i) the husband had been entitled to invoke the privilege against self-incrimination in the ancillary relief proceedings and, if not, whether the information provided in the Form E and questionnaires was admissible against him at trial or should be excluded by the judge in the exercise of his powers under s 78 of the Police and Criminal Evidence Act 1984; (ii) the judge had erred in holding that the first part of the first meeting had been on the record since, according to the husband, the whole of the discussion had been aimed at exploring the possibility of a compromise; and (iii) ‘without prejudice’ communications, such as those made by the husband in the second meeting, were admissible against the maker in subsequent criminal proceedings.
Held– (1) The privilege against self-incrimination remained an important protection against oppression and it was not lightly to be inferred that Parliament had chosen to abrogate it, especially where it had not made its intention clear by the use of express language. Accordingly, where Parliament had not expressed itself in clear terms, the court should be cautious in reaching the conclusion that it had intended to abrogate the privilege. Only in cases where the purpose of the statute would otherwise be frustrated was that conclusion likely to be justified. Although the 1991 Rules did not expressly exclude the privilege, they must have been intended to abrogate it, since the court could not discharge the duty imposed on it by s 25 of the 1973 Act unless the parties were required to disclose all relevant information, even if tending to incriminate them. Parties to ancillary relief proceedings were therefore not entitled to invoke the privilege against self-incrimination in order to withhold information. It followed that the information contained in the husband’s Form E and his answers to the wife’s questionnaires had been obtained under compulsion.
(2) It was established that a restriction of an accused person’s right not to incriminate himself would not infringe his right to a fair trial provided that
the compulsion under which the information was obtained was of a moderate nature and the use of the evidence obtained by it represented a proportionate response to a pressing social need. A wilful refusal to comply with an order for disclosure would amount to a contempt of court, which might attract the not insignificant sanction of imprisonment. Although the protection of the public revenue was an important social objective, the admission of evidence obtained from the accused under threat of imprisonment was not a reasonable and proportionate response to that social need. Accordingly, use of the admissions made by the husband in his Form E and questionnaire responses would deprive him of the fair trial to which he was entitled under art 6 of the Convention and had therefore to be excluded by the judge in the exercise of his powers under s 78 of the 1984 Act; Saunders v UK (1996) 2 BHRC 358 and Brown v Stott (Procurator Fiscal, Dunfermline) [2001] 2 All ER 97 considered.
(3) There was nothing to prevent parties from expressly agreeing that some communications were ‘on the record’ (and therefore unprotected) and others were not. On the evidence, it had been understood by all present that the first part of the first meeting was intended to be on the record, in the sense that there were to be no restrictions on the subsequent use that either party could make of what was said, and that the without prejudice protection had been invoked immediately before the husband’s solicitors had put forward initial proposals with a view to reaching a compromise. The judge had therefore been correct to hold that the first part of that meeting had not been held on a ‘without prejudice’ basis. However, it was clear that the purpose of the first stage of the meeting had been to elicit further information about the husband’s assets; he was being asked to provide orally information that he would otherwise have been compelled to provide in written form in answers to questionnaires served on him by the wife. It necessarily followed that the information was provided under the compulsion of the requirement to make full and frank disclosure. The incriminating statements made during that meeting were not, therefore, admissible against the husband at the trial.
(4) Since the Crown was a third party to the negotiations between the husband and wife, the question of whether the without prejudice rule applied to prevent admissions made by the husband in the course of those negotiations being used as evidence against him in criminal proceedings could not depend on the express or implied agreement of the parties but had to depend entirely on considerations of public policy. The immediate purpose of the without prejudice rule was to enable parties to negotiate freely without compromising their positions in relation to their current dispute and, although it might be justifiable to extend the scope of protection to subsequent proceedings involving either of the parties to the original negotiations, the public interest in preserving confidentiality became weaker the more remote the subject matter of those proceedings became from the subject of the original negotiations. Criminal proceedings involved different parties and were of a different nature. To that extent they were
necessarily once removed from the dispute that gave rise to the negotiations. In those circumstances, the public interest in prosecuting crime was sufficient to outweigh the public interest in the settlement of disputes. Accordingly, admissions made by the husband during the second meeting were not inadmissible by virtue of the circumstances in which they were made. If the trial judge were of the view that, for some reason, the admission of the evidence would render the trial unfair, it would be his duty to exclude it in the exercise of his discretion under s 78 of the 1984 Act; Butler v Board of Trade [1970] 3 All ER 593 considered.
Cases referred to in judgmentA v A, B v B[2000] 1 FCR 577, [2000] 1 FLR 701.
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