Volaw Trust and Corporate Services Ltd and its Directors and Others v The Office of the Comptroller of Taxes and another

Held, dismissing the appeals:

(1) The complaint based on art. 6 of the ECHR would be rejected. Article 6(1) provided, so far as material, that in the determination of any criminal charge against him, a person was entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Under art. 6(3)(c), a person charged with a criminal offence had the right to defend himself in person or through legal assistance of his own choosing. The right not to incriminate oneself was treated by the European Court of Human Rights as implicit in the latter guarantee. It was conceded by the respondents that it applied to companies as well as to natural persons. Since the right to a fair trial was unqualified, determining whether there had been a violation of art. 6 did not involve an assessment of the proportionality of an interference with the right, but instead involved an assessment of the fairness of the proceedings as a whole, taking into account the rights listed in art. 6(3). The approach to be adopted in cases concerning the right not to incriminate oneself had been considered by the European Court of Human Rights in a large number of cases and had developed over time. Considering the present case in the light of that body of law, the first notable feature was that there had been no determination of any criminal charge against Volaw or the other appellants. The challenges under art. 6 had been brought at the stage of the gathering of documentary material as part of an investigation into the possible commission of offences. The guarantees of art. 6 were applicable from the moment a criminal charge existed and could be relevant during pre-trial proceedings if and in so far as the fairness of the trial was likely to be seriously prejudiced by an initial failure to comply with them. In principle therefore (and subject to exceptions), an examination of the compatibility of pre-trial conduct with art. 6 will normally focus on the fairness of the trial. In particular, the right not to incriminate oneself was primarily concerned with the proof of guilt at trial. The privilege against self-incrimination did not act as a general prohibition on the use of compulsory powers to obtain documents or other forms of information at the stage of an investigation, even where a person had been charged with an offence. What was crucial in relation to compulsion to produce evidence was the use to which evidence obtained under compulsion was put in the course of the criminal trial. The present case did not fall within the ambit of the line of cases on which the appellants relied beginning with Funke v. France, as this was not a case in which the appellants were prosecuted and punished for failing to produce self-incriminating evidence. The present appeals were to be considered in light of the four factors to which the European court had directed attention: (i) the nature and degree of compulsion used to obtain the evidence in question; (ii) the weight of the public interest in the investigation and punishment of the offences in issue; (iii) the existence of any relevant safeguards in the procedure; and (iv) the use to which any material so obtained might be put. First, considering the nature and degree of the compulsion used, Volaw (but none of the other corporate appellants) was the subject of compulsion by virtue of the TIEA notices and the 1991 Law notice, which compulsion consisted of the potential imposition of a fine for non-compliance. It was difficult to regard that compulsion as falling within any of the situations identified by the European Court of Human Rights as violating art. 6. In particular, the only situation mentioned there which concerned the obtaining of real evidence involved physical or psychological pressure, often in the form of treatment which breached art. 3 of the ECHR. It was difficult to regard the service of the notices in the present case as constituting such pressure. Considering the weight of the public interest in the investigation and punishment of the offences in issue, the TIEA notices were issued to assist in the investigation of possible tax offences under Norwegian law. The weight of the public interest in effective international co-operation in the investigation of possible tax avoidance and evasion could not be doubted. It was a matter of particular importance in relation to global financial centres such as Jersey. There was also a substantial public interest in maintaining the integrity of licensed providers of financial services. It was not unreasonable to expect them to co-operate with responsible investigations into possible tax offences or fraud involving their clients by producing information in their possession relating to their clients' affairs. The public interest did not justify depriving defendants of a fair trial, but it might be a strong justification for requiring the provision of information and documents at the stage of pre-trial investigations. Whether any of the documents could subsequently be used as evidence in the event of a trial was a separate question. Considering the use to which the documents might be put and the existence of any relevant safeguards in the procedure, it was important to note again that the present appeals concerned pre-trial investigations. No documents had yet been produced and it was impossible to predict what they might contain or the use if any which the prosecution might seek to make of them at trial. It had not been argued that the requirement to produce the documents specified in the notices would in itself prejudice the fairness of any trial which might subsequently be held. If any charges had subsequently been brought against Volaw in Norway and had proceeded to trial, and in the further event that the prosecution had sought to rely on any of the documents at such a trial, it would then have been open to Volaw to object to the admission of the evidence on the ground that it had been obtained by the use of compulsory powers and its admission would violate the privilege against self-incrimination. The Norwegian courts would then have ruled on any such objection. It was unnecessary to decide in the present case whether the privilege against self-incrimination applied in pre-trial investigations in one jurisdiction where any trial would take place in another. The Board considered that there was no reason to find at the present stage, which had not yet progressed beyond the service of notices as part of an investigation into possible offences, that the requirements of art. 6 would not be met in relation to any proceedings brought against any of the appellants in Jersey, or that those requirements would not have been met in relation to any proceedings brought against them in Norway. The notices did not in themselves deprive any of the appellants of their right to a fair trial and the complaint based on art. 6 of the ECHR would therefore be rejected ( paras. 39–70).

(2) The parties were in agreement that, even if the privilege against self-incrimination under Jersey customary law was capable of applying to pre-existing documents, it had in any event been impliedly abrogated by the 1991 Law, with the consequence that no such privilege applied in relation to the 1991 Law notice. They were in dispute, however, as to whether such a privilege applied in relation to pre-existing documents falling within the scope of the TIEA notices. The dispute raised three questions: (a) whether the privilege against self-incrimination under Jersey customary law applied in principle to the request in the TIEA notices for the provision of pre-existing documents, bearing in mind that the contemplated criminal proceedings would have taken place in Norway; (b) whether, if so, it was (at least purportedly) abrogated by the 2008 Regulations as amended by the 2013 Regulations; and (c) whether, if so, the 2013 Regulations were to that extent ultra vires. There was no doubt that the privilege as it was understood in English law had been extended to the production of documents at the pre-trial stage where it would tend to expose the person producing the documents to criminal sanctions. The Board had held (in Brannigan v. Davison) on an appeal from New Zealand that the common law privilege against self-incrimination had no application when the relevant criminal or penal sanctions arose under a foreign law. The submissions in the present case did not lead the Board to question the decision in Brannigan and no material differences between New Zealand and Jersey law had been drawn to its attention. It was therefore unnecessary for the Board to consider whether the privilege against self-incrimination under Jersey customary law, so far as it might encompass pre-existing documents, was abrogated by the 2008 Regulations as amended by the 2013...