England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION (ADMINISTRATIVE COURT))
(MR JUSTICE HENRIQUES)

		Royal Courts of Justice Strand London WC2A 2LL Friday 16 November 2001

1. LORD JUSTICE DYSON: This applicant, Mr El Heri (and nine others), has been charged with offences against the Revenue and the Customs and Excise. They are currently being tried in a trial which started earlier this year. On 6 November 2000 Silber J made a restraint order prohibiting the applicant from dealing with his assets. In addition to that, he was required by the order to disclose information regarding those assets. Paragraph 7 or the order reads:

   "Subject to any further order of the Court pursuant to Part 31.22, any disclosure made or information given in compliance with this order shall only be used for the purpose of these proceedings or, in the event that the defendant is convicted, for the purposes of any confiscation hearing that may take place and thereafter, in the event that a confiscation order is made, for the purposes of enforcement of that order including any receivership proceedings. There shall be no disclosure of any material disclosed in compliance with this order to any co-defendant in the criminal proceedings. Nothing in this paragraph shall make inadmissible any disclosure made by the defendant in any proceedings for perjury to which any such disclosure may relate."

2. The effect of this paragraph was to prohibit the use of information disclosed in compliance with the order for any purposes, save for two exceptions. Those exceptions were that the information might be used for the purposes of any confiscation proceedings that might follow the criminal proceedings, and the enforcement of any confiscation order ultimately made.
3. Application was made to vary that order to remove the two exceptions from the prohibition in paragraph 7. Henriques J dismissed the application and the applicant seeks permission to appeal.
4. The power to make a restraint order derives from section 77 of the Criminal Justice Act 1988. It is well established that the power to require disclosure of information is implicit in the statutory jurisdiction (see Re O [1991] 2 QB 550). Moreover, it is clearly established that a condition should attach to any requirement to provide that information disclosed may not be used against a defendant in criminal proceedings. That condition acknowledges and reflects the privilege against self-incrimination.
5. The question that arises on this application is whether such a condition should also apply so as to prohibit the use of disclosed information in confiscation proceedings. Mr Brodie has argued this application before me with considerable skill and cogency. It seems to me that the following considerations are relevant.
6. There is no indication in the authorities that the privilege against self-incrimination is relevant so as to preclude the use in confiscation proceedings of information disclosed pursuant to a restraint order. I have already referred to Re O. That case established for the first time that there was a condition implicit in the statute giving a power to make a disclosure order in order to ensure the effectiveness of a restraint order.
7. The court however recognised that the 1988 Act did not abrogate the common law rule against self-incrimination. Accordingly The Master of the Rolls said that any disclosure, made in pursuance of an order of the court, should not be used as evidence in the prosecution of an offence alleged to have been committed.
8. Mr Brodie makes the point that the court did not express any view on the question whether the prohibition on the use of disclosed material also extended to confiscation proceedings. Glidewell LJ at page 531 said:

"However, the purpose for which information so disclosed can properly be used must be limited to the purpose for which the power to make a restraint order is granted, namely, to ensure that the defendant's property is preserved so as to be available to satisfy any confiscation order which may be made if the defendant is convicted of the offence or offences charged. Any attempt by the prosecution to seek to use information disclosed under the compulsion of a disclosure order as evidence in the prosecution of the offences charged would, in my view, normally be an attempt to use the information for a purpose outside those for which the order was made."

9. There was mention in the course of argument by counsel for the CPS of the scope of the privilege against self-incrimination in this context. Mr Aylen QC is recorded as having said at page 525:

"It is implicit in section 77(1) of the Act of 1988 that the disclosure order takes effect as a proper condition of the restraint order. A defendant has the right not to incriminate himself but any order for disclosure or discovery cannot breach that principle because both by statute and at common law there is jurisdiction to bar the use of the material in any criminal trial. But the right not to self-incriminate cannot extend to the confiscation process because if it did the legislation would have no teeth. If the court is not satisfied that a defendant is sufficiently protected, it can impose conditions on the grant of the disclosure order as has been done in a number of cases."

10. Mr Brodie dismisses those submissions as mere remarks, but it seems to me that both The Master of the Rolls, and particularly Glidewell LJ, plainly had regard to those submissions in making the observations to which I have referred. The ratio of that decision is that there is a power in the court to order disclosure of information as to assets which is implicit in the restraint order jurisdiction. The court was also anxious to spell out the limits to which such a power is subject. The court recognised that the power could not be exercised so as to abrogate the privilege against self-incrimination. The court drew the line so as to respect that privilege, and, it seems to me, it accepted the submissions of Mr Aylen that the material disclosed could not be used in the criminal proceedings but that they could be used in aid of the confiscation process. It seems to me, therefore, that authority is against Mr Brodie's submission in this application.
11. The decision of Re O was expressly approved by the House of Lords in Istel v Tully [1993] AC 34, for example at page 61E in the speech of Lord Ackner. It was applied by analogy in the parallel legislation of the Drug Trafficking Offences Act 1996 by the Court of Appeal in Re T [1993] 96 CA 194.
12. Standing back from the authorities, the purpose of the requirement for disclosure is to enable the prosecuting authorities to police the restraint order which itself is in aid of any confiscation proceedings which may follow in the event of a conviction. That is emphasised by section 82(2) of the 1988 Act which states that:

"... the powers [which include the power to make a restraint order] shall be exercised with a view to making available for satisfying the confiscation order or, as the case may be, any confiscation order which may be made in the defendant's case the value for the time being of realisable property...."

13. This purpose would be wholly undermined if information disclosed pursuant to a restraint order could not be used in the confiscation proceedings. It is true that the Proceeds of Crime Act 1995 section 73(a) has been introduced into the 1988 Act which enables a court to require disclosure following a conviction. However, the fact that in 1995 that provision was introduced cannot change the meaning and effect that should be given to the 1988 Act as it stood on the eve of the introduction of that amendment.
14. Mr Brodie submits that unless the prohibition on the use of disclosed material is extended to the confiscation proceedings, then there will be a significant erosion of the privilege against self-incrimination, an erosion for which there is no sufficiently clear statutory authority. I am not persuaded that the confiscation proceedings attract the privilege against self-incrimination. I accept that the outcome of confiscation proceedings may properly be described as a penalty and may also be described as part of the sentencing process, since they arise in criminal proceedings. But no authority has been cited to me which shows that the privilege against self-incrimination extends to proceedings which take place following a conviction.
15. Be that as it may, the authorities to which I have referred clearly point to the conclusion that the judge was right in this case. I do not accept that the law has been materially changed in this regard by Article 6 of the European Convention on Human Rights.
16. For all these reasons I would dismiss this application for permission to appeal.
Order: Permission to appeal refused.