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Family Law

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04 AUG 2009

ANCILLARY RELIEF/CRIMINAL LAW: R v K [2009] EWCA Crim 1640

(Court of Appeal; Moore-Bick LJ, Holman and Rafferty JJ; 28 July 2009)

The wife applied for ancillary relief. In his Form E, the husband disclosed bank accounts in Switzerland and Liechtenstein; it was clear from some of the entries that the information contained in the form was not complete. At a meeting between solicitors at which the husband was present, the husband made certain admissions about his assets, recorded in the attendance notes of both solicitors. Part of this meeting was held on a 'without prejudice' basis, and part of it was on an 'open' basis. In a further 'without prejudice' meeting the husband made statements tending to implicate him in tax evasion. Subsequently, in response to the wife's questions about the Form E, the husband made various statements tending to show that he had failed to account for tax over a period of some years. An informer sent copies of the Form E and answers to questionnaires to the Revenue. The husband was charged with cheating the public revenue. The prosecution wished to rely upon the documents and the oral admissions made during the course of the ancillary relief proceedings. The husband argued that, as he had been compelled to disclose the information, without any privilege against self-incrimination, use of his admissions would be in breach of his rights under European Convention on Human Rights, Art 6, to a fair trial. The judge held that the husband could have invoked privilege against self-incrimination in the ancillary relief proceedings, and that the information had therefore not been obtained under compulsion. 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 trial, and that he would then have exercised his discretion to exclude it. He held that admissions made in 'without prejudice' meetings were protected, but that admissions made in the 'open' part of the first meeting were not protected. The husband and the prosecution cross-appealed.

The appeal and the cross-appeal would both be allowed. The information in the husband's Form E had tended to incriminate the husband: even though the form had only shown that a bank account existed as at the date of the form, once the Revenue became aware of the existence of the relevant foreign account, it was likely to want to know how long the account had been in existence. Therefore, if the husband had been entitled to invoke privilege against self-incrimination, this was information that he would have been entitled to withhold. Although the Matrimonial Causes Act 1973, unlike most statutes that abrogated the privilege against self-incrimination, did not itself require the parties to ancillary relief proceedings to provide information about their financial resources, the Family Proceedings Rules 1991, did impose such a duty. In particular, rules 2.61A-F required disclosure of financial resources using Form E; Form E stated not only that a failure to give full and accurate disclosure might result in any order the court made being set aside, but also that if a person completing the form was found to have been deliberately untruthful, criminal proceedings might be brought for perjury. The fact that a party was compelled by rules of court to disclose information and documents did not of itself abrogate the privilege against self-incrimination, and the FPR did not expressly exclude the privilege; however, the FPR, which were contained in secondary legislation which had the approval of Parliament, must have been intended to abrogate the privilege, since the court could not discharge the duty imposed on it by section 25 unless the parties were required to disclose all relevant information, even if tending to incriminate them, otherwise the purpose of the legislation would be frustrated. Therefore parties to ancillary relief proceedings were not entitled to invoke privilege against self-incrimination in order to withhold information, and the informationcontained in the husband's Form E and in answer to questionnaires had been obtained by compulsion.

The essential principle to be derived from Brown v Stott was that a restriction of an accused person's right not to incriminate himself would not infringe his right to a fair trial provided that (i) the compulsion under which the information was obtained was of a moderate nature and (ii) the use of the evidence obtained by compulsion 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; the nature of the compulsion that might be applied to enforce compliance with the obligation to disclose incriminating information was therefore severe. No doubt the protection of the public revenue was an important social objective, but the need to punish and deter tax evasion was not sufficient to justify such an infringement of the right of the accused not to incriminate himself. The use of admissions made by the husband in the course of ancillary relief proceedings would deprive husband of the fair trial to which he was entitled under Art 6, and must therefore be excluded by the judge; this was not simply a question of judicial discretion. In respect of the admissions made during the 'open' part of the first meeting, the purpose of the meeting had essentially been to elicit further information about husband's assets and the information provided had therefore been provided under compulsion of the requirement to make full and frank disclosure. However, the husband's statements concerning his tax position at the second, wholly 'without prejudice', meeting had been in the context of explaining his negotiating position, and not pursuant to his duty to make full and frank disclosure. If evidence of an incriminating admission fell into the hands of the prosecuting authorities, it was not rendered inadmissible against the maker at a subsequent criminal trial on public policy grounds simply by reason of the fact that it was made in the course of 'without prejudice' discussions. 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 was from the subject of the original negotiations. Criminal proceedings involved different parties and were of a different nature. To that extent they were necessarily at one remove from the dispute that gave rise to the negotiations. The public interest in prosecuting crime was sufficient to outweigh the public interest in the settlement of disputes.

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