Risk of Prosecution on Disclosure of Documents
| DOI | http://doi.org/10.1177/002201839906300520 |
| Published date | 01 October 1999 |
| Date | 01 October 1999 |
| Subject Matter | Article |
Riskof
Prosecution
on
Disclosure
of
Documents
the
accident,
and
a good safety record in the past. Upon the level of fines,
Scott Baker J observed that it was
not
only the gravity of
the
offence, but
also
the
means of the offender which must be considered. But
the
fine
must be such as to bring home the message of the Act
not
only to those
who
'run'
the company,
but
also to the shareholders. To counsel
who
suggested that a fine should never be large enough to threaten a
defendant company with insolvency, the court replied that this was
not
so, for there may well be companies which ought not to be left
in
business.
Risk of Prosecution on Disclosure of Documents
cvSand
others
[1999] 2 All ER 343
Lord Woolf MR described the events which gave rise to these pro-
ceedings as 'highly unusual'. A company, C, alleged that 'vast sums of
money' had been misappropriated by the defendants against
whom
it
was proceeding, although it was
not
suggested that the 13th defendant,
abank, was so guilty. C obtained a Mareva injunction against the
defendants (except the bank) and, as it required certain information, it
also obtained a Norwich Pharmacal order requiring the bank to disclose
certain banking papers in the names of the other parties to
the
litigation,
in order to assist C in tracing the funds which
had
disappeared
and
so
obtain effective relief against the defendants other
than
the
bank.
Un-
known
to C or to the judge, the bank had already made a series of
money laundering reports to the Bconomic Crimes Unit of the National
Criminal Intelligence Services (NCIS). As these reports were the subject
the bank asked for assurance from the
NCIS
that it would
not
be
prosecuted
under
the Act
if
it disclosed the information required by the
court's order for discovery. The
NCIS
declined to give that assurance, as
any disclosure by the bank would
amount
to tipping off contrary to
s 93D
and
the ultimate decision
whether
to prosecute would lie,
not
With the
NCIS,
but with the usual prosecuting authorities. The
NCIS
then
itself made an application that the bank,
under
Sched 1 to the
Police and Criminal Evidence Act 1984
(PACE),
be ordered to disclose
documents similar to those which had been the subject of
the
order
made by the court. The bank complained of the
dilemma-that
it would
be in contempt if it disobeyed the court's order, but could be prosecuted
under
s 93D if it obeyed that order. On an ex
parte
application by the
bank, the court discharged the first order and further ordered
that
the
evidence should not be open to inspection without leave of
the
court.
An application by the
NCIS
against the bank's solicitors met with the
same result.
When
C made a second application, C was informed that
the bank would
not
consent to the application,
but
was
not
informed of
the bank's predicament or of the involvement of the
NCIS
in the matter.
The court made no order against
the
bank
other
than
that it take all
429
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