Volaw Trust and Corporate Services Ltd and its Directors and Others v The Office of the Comptroller of Taxes and another
| Jurisdiction | UK Non-devolved |
| Judge | Lord Reed |
| Judgment Date | 17 June 2019 |
| Neutral Citation | [2019] UKPC 29 |
| Docket Number | Privy Council Appeals No 0001 of 2016 and 0091 of 2016 |
| Court | Privy Council |
| Date | 17 June 2019 |
[2019] UKPC 29
JUDICIAL COMMITTEE OF THE PRIVY COUNCIL
( Lord Reed, Lord Kerr, Lord Sumption, Lord Carnwath, Lord Hodge, Lady Arden and Lord Kitchin):
P. Bowen, Q.C., A. Hoy and H. Leith for the appellants;
R. MacRae, Q.C., Attorney General and H. Sharp, Q.C. for the respondents.
(1) Allen v. United Kingdom (2002), 35 E.H.R.R. CD289; [2003] Crim. L.R. 280, considered.
(2) Att. Gen.'s Ref. (No. 7 of 2000), [2001] EWCA Crim 888; [2001] 1 W.L.R. 1879; [2001] 2 Cr. App. R. 19; [2001] H.R.L.R. 41; [2001] B.P.I.R. 953, considered.
(3) Brannigan v. Davison, [1997] A.C. 238; [1996] 3 W.L.R. 859; (1996), 2 B.H.R.C. 395, followed.
(4) C plc v. P, [2007] EWCA Civ 493; [2008] Ch. 1; [2007] 3 W.L.R. 437; [2007] 3 All E.R. 1034; [2007] C.P. Rep. 35, considered.
(5) Chambaz v. Switzerland, E.Ct.H.R., April 5th, 2012, Applic. No. 11663/04, unreported, distinguished.
(6) Durant Intl. Corp. v. Att. Gen., 2006 JLR 112, dictum of Sumption, J.A. considered.
(7) Funke v. France (1993), 16 E.H.R.R. 297; [1993] 1 C.M.L.R. 897, distinguished.
(8) Gäfgen v. Germany, E.Ct.H.R., June 1st, 2010, Applic. No 22978/05, unreported, considered.
(9) Heaney v. Ireland (2000), 33 E.H.R.R. 12, considered.
(10) Ibrahim v. United Kingdom, E.Ct.H.R., September 13th, 2016, Applic. Nos. 50541/08, 50571/08, 50573/08 and 40531/09, applied.
(11) JB v. Switzerland, E.Ct.H.R., May 3rd, 2001, Applic. No. 31827/96, unreported, distinguished.
(12) Jalloh v. Germany (2006), 44 E.H.R.R. 32; 20 B.H.R.C. 575, applied.
(13) Magee v. United Kingdom (2000), 31 E.H.R.R. 35; 8 B.H.R.C. 646; [2000] Po. L.R. 188; [2000] ECHR 216, considered.
(14) O'Halloran v. United Kingdom (2007), 46 E.H.R.R. 21; 24 B.H.R.C. 380, applied.
(15) Othman v. United Kingdom (2012), 55 E.H.R.R. 1; [2012] ECHR 817, referred to.
(16) Qatar (State) v. Al Thani, 1999 JLR 118, referred to.
(17) R. v. Hertfordshire C.C., ex p. Green Environmental Indus. Ltd., [2000] 2 A.C. 412; [2000] 2 W.L.R. 373; [2000] 1 All E.R. 773; [2000] Env. L.R. 426; [2000] E.H.L.R. 199; [2000] H.R.L.R. 359; [2000] U.K.H.R.R. 361, considered.
(18) R. v. Home Secy., ex p. Salem, [1999] 1 A.C. 450; [1999] 2 W.L.R. 483; [1999] 2 All E.R. 42; (1999), 11 Admin. L.R. 194, referred to.
(19) R. v. Kearns, [2002] EWCA Crim 748; [2002] 1 W.L.R. 2815; [2003] 1 Cr. App. R. 7; [2002] B.P.I.R. 1213, referred to.
(20) R. v. S(F), [2008] EWCA Crim 2177; [2009] 1 W.L.R. 1489; [2009] 1 All E.R. 716; [2009] 1 Cr. App. R. 18, referred to.
(21) R. (Malik) v. Manchester Crown Ct., [2008] EWHC 1362 (Admin); [2008] 4 All E.R. 403; [2008] E.M.L.R. 19; [2008] U.K.H.R.R. 1151, referred to.
(22) Rank Film Distributors Ltd. v. Video Information Centre, [1982] A.C. 380; [1981] 2 W.L.R. 668; [1981] 2 All E.R. 76; [1981] F.S.R. 363, considered.
(23) Redfern v. Redfern, [1891] P. 139, referred to.
(24) Rio Tinto Zinc Corp. v. Westinghouse Elec. Corp., [1978] A.C. 547; [1978] 1 All E.R. 434; (1977), 122 Sol. Jo. 32; sub nom. Westinghouse Elec. Corp. Uranium Contract Litigation M.D.L. Docket 235, [1978] 1 C.M.L.R. 100, referred to.
(25) Saunders v. United Kingdom (1996), 23 E.H.R.R. 313; 2 B.H.R.C. 358; [1997] BCC 872; [1998] 1 BCLC 362, considered.
(26) Shannon v. United Kingdom (2005), 42 E.H.R.R. 31, considered.
(27) Two Sicilies (King) v. Willcox (1851), 1 Sim. (N.S.) 301; 61 E.R. 116, referred to.
Investigation of Fraud (Jersey) Law 1991 (Revised Edition, ch.08.640), art. 2:
“(1) The powers of the Attorney General under this Article shall be exercisable in any case in which it appears to the Attorney General that—
(a) there is a suspected offence involving serious or complex fraud, wherever committed; and
(b) there is good reason to do so for the purpose of investigating the affairs, or any aspect of the affairs, of any person.
(2) The Attorney General may—
(a) by notice in writing require the person whose affairs are to be investigated (‘the person under investigation’) or any other person whom he or she has reason to believe has relevant information to answer questions or otherwise furnish information with respect to any matter relevant to the investigation at a specified place and either at a specified time or forthwith; and
(b) administer questions or otherwise obtain information accordingly.
(3) The Attorney General may by notice in writing require the person under investigation or any other person to produce at such place as may be specified in the notice and either forthwith or at such time as may be so specified any specified documents which appear to the Attorney General to relate to any matter relevant to the investigation or any documents of a specified description which appear to the Attorney General so to relate; and
(a) if any such documents are produced, the Attorney General may—
(i) take copies or extracts from them,
(ii) require the person producing them to provide an explanation of any of them;
(b) if any such documents are not produced, the Attorney General may require the person who was required to produce them to state, to the best of the person's knowledge and belief, where they are.”
Taxation (Exchange of Information with Third Countries) (Jersey) Regulations 2008 (Revised Edition, ch.17.850.30, 2015 ed.), reg. 3: The relevant terms of this regulation are set out at para. 33.
reg. 10A: The relevant terms of this regulation are set out at para. 33.
reg. 15: The relevant terms of this regulation are set out at para. 34.
Taxation (Implementation) (Jersey) Law 2004 (Revised Edition, ch.17.850, 2011 ed.), art. 2: The relevant terms of this article are set out para. 31.
European Convention for the Protection of Human Rights and Fundamental Freedoms (Rome, November 4th, 1950; Treaty Series 71 (1953)) (Cmd. 8969) (Human Rights (Jersey) Law 2000 (Schedule 1, Part 1)), art. 6:
“1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law …
2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”
Taxation — exchange of tax information — privilege against self-incrimination — privilege not infringed by notices under Taxation (Exchange of Information with Third Countries) (Jersey) Regulations 2008 and Investigation of Fraud (Jersey) Law 1991 addressed to financial services provider requiring production of pre-existing documents relevant to foreign investigation
Taxation — exchange of tax information — privilege against self-incrimination — production of pre-existing documents — court to consider (i) nature and degree of compulsion used to obtain documents; (ii) public interest in investigation and punishment of offences in issue; (iii) existence of any relevant safeguards in procedure; and (iv) use to which material might be put
The applicants had applied in the Royal Court for judicial review.
In 2012, the Norwegian tax authorities requested the Comptroller of Taxes to obtain information concerning a number of Jersey-registered companies and trusts administered by Volaw Trust & Corporate Services Ltd. (“Volaw”), a Jersey financial services provider, which they suspected were being used by a Norwegian national, Mr. Larsen, to evade tax payable in Norway. The requests were made under the Agreement between Jersey and the Kingdom of Norway for the Exchange of Information relating to Tax Matters (“the TIEA”). The notices were the subject of unsuccessful challenges before the Royal Court and the Court of Appeal. The courts proceeded on the basis that the information sought would be used solely in connection with Mr. Larsen's tax affairs. The material sought was provided to the Norwegian authorities.
In 2013, Mr. Larsen was convicted in Norway of tax offences relating to trusts and companies administered by Volaw and sentenced to a term of imprisonment.
Following Mr. Larsen's conviction, the Comptroller of Taxes received nine further requests for information from the Norwegian authorities under the TIEA. The requests explained that the information was sought for the purpose of (1) the determination, assessment and collection of tax; and (2) the investigation or prosecution of criminal tax matters. In October 2014, the Comptroller of Taxes issued nine notices (“the TIEA notices”) addressed to Volaw under the Taxation (Exchange of Information with Third Countries) (Jersey) Regulations 2008, as amended. The notices required Volaw to provide all documents and records it held which related to Mr. Larsen and to the companies and trusts mentioned in the letters of request. Volaw was warned that failure without reasonable excuse to comply with the notice would be a criminal offence.
Mr. Larsen appealed against his conviction. In the course of preparation for that appeal, and at Mr. Larsen's request, the Office of the Public Prosecutor in Norway issued a letter of request to the Attorney General in Jersey seeking assistance to obtain further documents from Volaw. In response, in August 2015 a Crown Advocate acting with the authority of the Attorney General issued a notice under the Investigation of Fraud (Jersey) Law 1991 (“the 1991 Law notice”). The notice was addressed to Volaw and named the person under investigation as Mr. Larsen. It stated that there appeared to be a suspected offence involving serious or complex fraud and required Volaw to provide specified information and documents.
Following representations by Volaw, the Attorney General enquired whether the Norwegian authorities could guarantee that documents disclosed in compliance with the 1991 Law notice would not be used...
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