Jersey Unreported Judgments

[2006]JRC172

royal court

(Samedi Division)

29^th November 2006 

Before     :

M. C. St. J. Birt, Esq., Deputy Bailiff, and Jurats Le Breton and Clapham.

 

Advocate P. C. Sinel for the Plaintiffs.

Crown Advocate A. J. Belhomme Esq., for the Attorney General.

Advocate C. J. Scholefield for the Second Defendant.

Advocate S. E. Fitz for the Third Defendant.

judgment

deputy bailiff:

1.        This is an application by the Attorney General to strike out the order of justice of the plaintiffs pursuant to Rule 6/13(1)(a) and/or (b) and/or (d) on the grounds that the order of justice discloses no reasonable cause of action, is scandalous or frivolous or is otherwise an abuse of the process of the Court and/or pursuant to the Court's inherent jurisdiction. 

Factual background

2.        Apart from an affidavit to which we shall refer shortly, the Court has received no evidence.  We take the factual background therefore from the order of justice and the information presented to us but these matters are all subject to proof in due course.

3.        Peter Michel is an accountant and was the principal of Michel & Co (accountants).  At the material time he lived and worked in Jersey.  Simone Gallichan was an employee of Michel & Co (also living and working in Jersey).  Mr Michel and Mrs Gallichan have been charged in Jersey with various offences of money laundering.  The relevant count for the purposes of these proceedings has been described as Count 2 and charges the defendants with assisting another to retain the benefit of criminal conduct contrary to Article 31(1)(a) of the Proceeds of Crime (Jersey) Law 1999.  The particulars of Count 2 allege that Mr Michel and Mrs Gallichan:-

"Between 1 July 1999 and 8 July 2001,  in the Island of Jersey, knowing or suspecting that Simon Trant, Timothy Trant and Somerley Plant & Haulage Limited were persons engaged in criminal conduct, namely, cheating the UK Public Revenue and/or theft, were concerned in an arrangement whereby the retention or control by Simon Trant, Timothy Trant and Somerley Plant & Haulage Limited of their proceeds of criminal conduct, namely a credit balance at HSBC and cash, was facilitated."

4.        Patrick, Timothy and Simon Trant are brothers.  They have a business called Trant Construction Limited ("the Company") which was formerly known as P Trant Limited.  We hope that we will not be thought discourteous if, to avoid confusion, we refer to the brothers simply by their first names.  At the material time Patrick was the chairman of the Company, Timothy was its managing director and Simon was a director. 

5.        As can be seen, Count 2 of the criminal proceedings refers to alleged criminal conduct by Simon and Timothy (as well as Somerley Plant & Haulage Ltd ("Somerley") which was a company incorporated in Jersey by Mr Michel for Simon and Timothy) and this order of justice arises out of the desire on the part of the Attorney General that all three brothers should give evidence in the criminal proceedings against Mr Michel and Mrs Gallichan. 

6.        As a result of a request by the Attorney General, the Serious Fraud Office ("SFO") served notices dated 22^nd July 2003 under Section 2(2) of the Criminal Justice Act 1987 of the United Kingdom on Timothy and Simon requiring them to attend the offices of the SFO for interview.  They duly attended pursuant to these notices on 18^th August 2003.  There they were interviewed by a member of the SFO, a lawyer (Anwar Nashashibi) instructed on behalf of the Attorney General, and a forensic accountant also instructed by the Attorney General.  At the beginning of the interview they were each warned that they were obliged by law to answer questions truthfully and to give a full explanation of any questions asked or any documents which may be shown to them and they were also warned that they could be prosecuted if they withheld any information without good cause or knowingly gave false or misleading information.  They were also told that if a prosecution was subsequently brought against anyone as a result of the investigation, they might be asked to make a formal witness statement.  The interviews were tape recorded and the papers before us include transcripts of those interviews, apparently prepared by Messrs Sinels. 

7.        On 19^th November 2003 a witness statement was taken from Patrick at his home in England by Detective Sergeant Gay of the Jersey Police.

8.        On 5^th March 2004, arrangements were made for Timothy and Simon to attend at 7 Bedford Row, London, the chambers of counsel assisting the Attorney General in the prosecution of Mr Michel and Mrs Gallichan.  According to the order of justice, Timothy was contacted by telephone by DS Gay and informed that he and Simon were required to attend for a further interview, which would be a continuation of the earlier interviews of 18^th August 2003 and would involve clarification of points from those interviews.  It is further pleaded that, as a result of what was said by DS Gay, both Timothy and Simon believed that they were being required to attend for further interview under the same statutory provision as before, namely Section 2, and that the same provisions applied so that they had no choice but to comply with this compulsory process and that refusal to do so would amount to a criminal offence.  It is further pleaded that they held this belief at all material times up to and including 19^th March 2004, which was the day on which the witness statements were taken. 

9.        As against that DS Gay has sworn an affidavit stating that the arrangements were made in order to record witness statements from them and that he did not suggest that they were obliged to come by law; so far as he was concerned they were attending voluntarily. 

10.      Her Majesty's Revenue and Customs ("the Revenue") operates a procedure known as the Hansard procedure.  This involves taxpayers who may have been guilty of tax evasion making full and frank disclosure about their affairs to the Revenue and paying all tax and penalties due as a result, following which the Revenue may elect not to take any criminal proceedings.  In 2002 the plaintiffs and the Company made disclosure to the Revenue concerning their tax affairs in accordance with the Hansard procedure and, so far as they were concerned, a line had been drawn under the whole matter.  The tax and penalties had been paid and the Revenue considered the matter closed.  It is clear from public documents issued by the Revenue (shown to us by Advocate Sinel) that information supplied to the Revenue by a taxpayer is regarded as confidential and will only be disclosed by the Revenue to others when the law allows it. 

11.      On 15^th March 2004, pursuant to a letter of request from the Attorney General, the Revenue supplied various materials to the Attorney General including documents relating to the Hansard procedure in respect of the plaintiffs and the Company.  It follows that DS Gay was in possession of such material at the time of the interviews on 19^th March.  Counsel for Mr Michel and Mrs Gallichan confirmed at the hearing of this application that the Hansard material had subsequently been disclosed to them as part of the prosecution duty of disclosure in a criminal case in respect of unused material.

12.      Turning to those interviews, Simon and Timothy duly attended at 9 Bedford Row on 19^th March 2004.  They were seen by DS Gay and Mr Nashashibi.  DS Gay has sworn an affidavit as to what occurred on that occasion and has exhibited certain documents.  There was a short initial discussion.   Mr Nashashibi prepared a handwritten note summarising that discussion which was countersigned by Timothy and which reads as follows:-

"They asked if they might get into trouble.  I explained that we were only interested in Michel.  I explained that it was only IR who prosecuted for tax evasion.  I said that the IR files suggested payments for inducements.  If there were corrupt payments some UK agency might be interested, we were not liaising with any such agency.  The Trants emphasised that they had made full disclosure to the IR under Hansard and had paid tax and fines in full.  They had made their peace with IR."

13.      Short tape recorded interviews then took place with each of Timothy and Simon and we have seen the transcripts of these interviews.  In essence each was asked about possible inconsistencies about what they had said in their Hansard interviews with the Revenue as compared with what they had said in the Section 2 interviews with the SFO, on the basis that the answers in the Hansard interviews could have been interpreted as referring to corrupt payments in Jersey to obtain contracts for work.  This was denied by both Timothy and Simon. 

14.      DS Gay stated in his affidavit that witness statements had been prepared in advance based on the Section 2 interviews with the SFO in August 2003.  These were read, amended and then signed by Timothy and Simon.  Prior to signing their respective witness statements they were advised that they could obtain legal advice if they wished and were also told that the protection given to them under the SFO Section 2 interviews did not apply here and that they were open to prosecution on anything in their witness statements.  DS Gay made a note to this effect in his pocket book which was countersigned by Mr Nashashibi. 

15.      In due course the trial against Mr Michel and Mrs Gallichan was fixed to commence on 26^th June 2006.  It was expected to last a number of weeks.  Prior to that there had been correspondence between Sinels, on behalf of the three Trant brothers, and the Attorney General.  On 1^st March 2006 Sinels confirmed that Simon and Timothy would come to Jersey for the trial.  On 18^th April the Attorney General's department wrote to the brothers suggesting that they would be required to give evidence on 6^th July.  Sinels responded on behalf of all three on 27^th April confirming that they would be so available. 

16.      However, shortly afterwards there was a change of heart.  On 22^nd June Sinels wrote saying that, unless compelled by law to do so, none of the brothers would voluntarily attend in Jersey for the proceedings nor would they voluntarily give evidence in such proceedings. 

17.      Faced with this change of position at the last moment, the Attorney General issued a request to the UK authorities under Article 4 Criminal Justice (International Co-operation) (Jersey) Law 2001 seeking assistance in the obtaining of evidence.  It appears that the Secretary of State nominated Southampton Magistrates Court under Section 30(3) of the Crime (International Co-operation) Act 2003 for the purpose of evidence being given through a live television link.  On 29^th June summonses were issued by the Southampton Magistrates Court to all three brothers summoning them to attend that court on 10^th July in order to give evidence through a live television link in the criminal proceedings before the Royal Court. 

18.      On 6^th July the plaintiffs issued the order of justice in this case seeking the relief which we describe below.  As it turned out, for entirely unrelated reasons, the trial judge in the criminal proceedings severed the indictment with the result that Count 2 (concerning the plaintiffs) was ordered to be tried at a subsequent date.  The plaintiffs were informed on Friday 7^th July that they would no longer be required to attend Southampton Magistrates Court the following Monday.  The trial of the remaining counts against Mr Michel and Mrs Gallichan (including Count 2) is now scheduled to commence on 22^nd January 2007. 

The Order of Justice

19.      The prayer of the order of justice merely asks that the Court may:-

"Grant to [the plaintiffs] declarations, orders and injunctions in the terms of paragraph 1.1 above."

20.      It is therefore necessary to turn to paragraph 1.1 which sets out what the plaintiffs seek.  It reads as follows:-

"1.1    The plaintiffs (Patrick, Timothy and Simon Trant) apply for declarations/orders/injunctions that, in relation to criminal proceedings brought by the first defendant (the Attorney General) against the second defendant (Peter Michel) and the third defendant (Simone Gallichan) in the Royal Court of Jersey, and which proceedings began to be tried on 3 July 2006 and are continuing to be tried before Sir Richard Tucker (the "proceedings"):

 (i)    they are under no obligation, and cannot be compelled, to attend in Jersey for the proceedings;

(ii)   they are under no obligation and cannot be compelled to give evidence in Jersey in the proceedings;

(ii)   in relation to the proceedings, Timothy and Simon Trant are entitled to claim the privilege against self-incrimination;

(iv)   in relation to the proceedings, Timothy and Simon Trant having claimed the privilege against self-incrimination, such claim is validly made, and is upheld;

(v)  in relation to the statements dated 19 March 2004 (said to have been taken by the Jersey authorities from Timothy and Simon Trant in England), the taking of such statements violated the rights of Timothy and Simon Trant under (at least) Article 8 of the European Convention on Human Rights (the "Convention") and/or the common law;

(vi)  in relation to the statement of Patrick Trant, dated 19 November 2003 and taken by the Jersey authorities in England, the taking of such statement violated his rights under (at least) Article 8 of the Convention and/or the common law. 

(vii)  in relation to the statement dated 19 November 2003, taken by the Jersey authorities from Patrick Trant in England, as Patrick Trant had no and has no contemporaneous knowledge of or involvement in any matters relevant to the proceedings and which are or may be in dispute, and cannot give any admissible evidence in relation to such matters and as the only evidence he could give on any matters possibly relevant to the proceedings would be formal evidence (which is not or is unlikely to be in dispute or, even if it is, cannot sensibly be disputed) there is no necessity for him to give evidence in the proceedings and/or any  attempt by or on behalf of the Jersey authorities to obtain evidence from him for the proceedings would be an abuse of the process;

(viii)  in relation to the plaintiffs' (and Trants') Hansard material (apparently provided at his request to the Attorney General by Her Majesty's Revenue & Customs) the Attorney General's failure to inform the plaintiffs at the material time of the fact that disclosure of such confidential material by him to the parties to the proceedings was to be made or had been made violated the plaintiffs' rights under (at least) Article 8 of the Convention and the common law;

(ix)    in relation to the request made by the Attorney General to the United Kingdom authorities for the plaintiffs' evidence to be taken before a court in England (which request had led to summonses being served on the plaintiffs requiring them to attend on 10 July 2006 before Southampton Magistrates Court to have their evidence taken before that court for the proceedings) the Attorney General acted unlawfully in making such a request because at the time of it he knew or ought to have known that none of the plaintiffs could give any material evidence. 

We should add that paragraph 1.1 of the order of justice helpfully referred, in the case of each of these sub-paragraphs, to subsequent paragraphs of the order of justice in which the particular point was elaborated. 

This application

21.      On 15^th August the Attorney General issued a summons to strike out the order of justice on the grounds referred to in paragraph 1 of this judgment.  The application was heard on 15^th September at which time judgment was reserved.  Subsequently the plaintiffs applied for and were granted leave to file further written submissions, which were lodged on 3^rd October.  The Attorney General filed further written submissions in response on 18^th October. 

22.      The test on an application to strike out is well established.  It is only where it is plain and obvious that the claim cannot succeed that recourse should be had to the Court's summary jurisdiction to strike out.  Particular caution is required in a developing field of law.  Provided that a statement of claim or particulars discloses some cause of action or raises some question fit to be decided by a judge or jury, the mere fact that a case is weak is not a ground for striking it out.  On an application to strike out under sub-paragraph (a) of Rule 6(13)(i) (that there is no reasonable cause of action) evidence is not admissible.  The facts alleged in the order of justice must be taken as correct.  However, where an application is made under sub-paragraph (b) (scandalous, frivolous or vexatious) or sub-paragraph (d) (abuse of process) or where the application to strike out is made out under the inherent jurisdiction of the Court, evidence is admissible and may be considered by the Court.

23.      With that introduction, we turn to consider in turn each of the claims set out in paragraph 1.1. of the order of justice. 

(i)     No obligation or compulsion to attend in Jersey for the proceedings

24.      This sub-paragraph seeks a declaration that the plaintiffs are under no obligation and cannot be compelled to attend in Jersey for the proceedings.  The court undoubtedly has jurisdiction to give declaratory judgments (see Re X [2002] JLR 259).  However that jurisdiction is only to be exercised where there is a practical live issue between the parties.  Thus in Re X itself the following passage from Chapter 8 of Zamir & Woolf, The Declaratory Judgment, (Second Edition) (1993) was quoted with approval:-

"It has been observed that it is the function of the courts to decide only live, practical questions and that they have no concern with hypothetical, premature or academic questions, nor do they exist to advise litigants as to the policy which they should adopt in the ordering of their affairs.  'The courts are neither a debating club nor an advisory bureau.'  Hypothetical questions will not be entertained.  The action 'cannot be used for the mere purpose of declaring legal propositions where no practical question or dispute lies beneath.'"

This accords with the dictum of Lord Diplock in Gouriet v Union of Post Office Workers [1978] AC at 501

"But the jurisdiction of the court is not to declare the law generally or to give advisory opinions; it is confined to declaring contested legal rights, subsisting or future, of the parties represented in the litigation before it and not those of anyone else."

25.      There is no dispute as to the fact that the plaintiffs cannot be compelled to attend in Jersey for the proceedings.  It is a matter of trite law and was immediately conceded by the Attorney General on 26^th June after Advocate Sinel had written saying that the plaintiffs would not be attending.  The response of Crown Advocate Whelan on behalf of the Attorney General contained the following passage:-

"You speak of an application to the Royal Court for an order that your clients, who are resident in England, cannot be compelled to attend Jersey and give evidence in Jersey.  That is trite law and an application to the Royal Court to declare it is a bewildering idea."

We agree.  There is no live practical question.  We therefore strike out sub-paragraph (i) on the grounds that it is an abuse of process and also under the inherent jurisdiction of the Court.

(ii)    No obligation or compulsion to give evidence in Jersey in the proceedings

26.      Under this sub-paragraph the plaintiffs seek a declaration that they are under no obligation and cannot be compelled to give evidence in Jersey in the proceedings.  This is expanded upon in paragraph 9 of the order of justice and the issue would seem to be an elaboration of that in sub-paragraph (i), namely that the plaintiffs cannot be compelled to come to Jersey to give evidence.  Thus in paragraph 9 of the order of justice reference is made to Article 3 of the Criminal Justice (International Co-operation) (Jersey) Law 2001, which specifically provides that, although a witness summons to appear in Jersey criminal proceedings may be served on a person outside Jersey, such service does not impose any obligation under the law of Jersey on such a person to comply with it.  Section 2 of the Crime (International Co-operation) Act 2003 of the United Kingdom says much the same thing in relation to a person served in England with a foreign witness summons and that is also referred to by the plaintiffs in paragraph 9 of the order of justice. 

27.      The proposition so stated is not disputed by the Attorney General.  There is accordingly no live issue between the parties and, for the same reasons as for sub-paragraph (i), declaratory relief is therefore wholly inappropriate and it is an abuse of process to seek a declaration in such circumstances.  We therefore strike out sub-paragraph (ii) on the same grounds as sub-paragraph (i). 

28.      In his oral submissions, Mr Sinel appeared to depart somewhat from the way in which sub-paragraph (ii) is put in the order of justice and suggested that it was linked with the question of self-incrimination.  We do not read it in that way but, in any event, we shall be dealing with the question of self-incrimination next. 

(iii) & (iv)  Privilege against self-incrimination

29.      In sub-paragraph (iii) Timothy and Simon seek a declaration that they are entitled to claim the privilege against self-incrimination in the criminal proceedings and in sub-paragraph (iv) they seek a declaration that, on the facts, such claim is validly made and is upheld.  We propose to consider these two sub-paragraphs together. 

30.      There is no doubt that the law of Jersey recognises a privilege against self-incrimination in the same way as English law.  That principle is, in our judgment, accurately summarised in Phipson on Evidence (16^th Edition) at para 24-40 as follows:-

"No person is bound to answer any question in civil or criminal proceedings if the answer thereto would in the opinion of the judge have a tendency to expose him to any criminal charge, penalty or forfeiture which the judge regards as reasonably likely to be preferred or sued for."

The principle can be seen to have two elements:-

(i)             The answer must be one which incriminates him i.e. has a tendency to expose him to a criminal charge etc;

(ii)            The danger of prosecution must be real and appreciable with reference to the ordinary operation of law and in the ordinary course of things.  The risk must not be remote or insubstantial.  See May, Criminal Evidence (5^th Edition at para 11-06) and passages to like effect in Phipson (para 24-49) and Blackstone, Criminal Practice (2005) at para F9.11.  See too the decision of the Court of Appeal in Den Norske Bank ASA v Antonatos [1999] QB 271 at 286 approving the statement of principle by Kirby P in Accident Insurance Mutual Holdings Limited v McFadden [1993] 31 NSWLR 412.

31.      Mr Sinel submitted that both of these elements were satisfied in the present case.  Count 2 was predicated upon the assertion that Simon and Timothy were persons engaged in criminal conduct, namely cheating the UK Revenue and/or theft and that the defendants in the criminal case were assisting them to retain the proceeds of that criminal conduct.  The sole purpose of calling them as witnesses would be to obtain admissions from them that they had committed one or more of the criminal offences referred to in the indictment and the witness statements dated 19^th March 2004 showed that this was the purpose of calling them.   

32.      As to whether they were exposed to a real and appreciable risk of prosecution, Mr Sinel pointed out that, although they had reached agreement with the Revenue under the Hansard procedure, the Attorney General was concerned, as was shown by the questions asked by DS Gay during the short interview on 19^th March 2004, that there were inconsistencies between what they had said in their Hansard interviews and what they had said in the SFO interviews, which formed the basis of the witness statements.  There was therefore a risk that the Revenue would consider that Timothy and Simon had not made full and truthful disclosure in the Hansard procedure so that a prosecution was a possibility.  Certainly the Attorney General was not in a position to show that there was no appreciable risk of such a prosecution.

33.      Mr Belhomme, on behalf of the Attorney General, asserted that Timothy and Simon had made their peace with the Revenue under the Hansard procedure and that accordingly there was no serious possibility of their being prosecuted in relation to tax offences simply because they would be giving evidence in the Jersey proceedings that they had cheated the Revenue. The whole point of the Hansard procedure was that, in return for full and frank disclosure and payment of the relevant tax and penalties, a prosecution was avoided.  There was therefore no real and appreciable risk of prosecution. 

34.      However his primary point was that the issue of whether Simon and Timothy were entitled to refuse to answer questions on the grounds that they might incriminate themselves was a matter which fell to be decided by the trial judge in the criminal proceedings when they came to give evidence; it was not a matter for this Court at this time.

35.      From the authorities put before us there seems to be overwhelming support for the proposition that any claim to such privilege must be taken by a witness after he has gone into the witness box and the claim is then considered by the court before whom the witness is giving evidence.  Phipson at para 24-50 says:

" [The claim] may be taken by the witness in refusing to answer a question; the witness cannot refuse to go into the witness box; he can only claim privilege after he has gone into the witness box and been sworn and the question put."

Blackstone at para F9.1 says:-

"A witness may claim the privilege only after he has been sworn and the question put; he is not entitled to refuse to take the oath on the grounds of the privilege (Boyle v Wiseman 1855 1 Ex ch 647).  Although in practice a judge will often warn a witness of his right not to answer a question which might expose him to a criminal charge, in the absence of such a warning, the witness must claim the privilege himself."

May at para 11-01 says:

"However, privilege can only be claimed by a witness once he has gone into the witness box.  Thus, privilege may be distinguished from the law relating to the compellability of a witness which deals with the occasions when a person may be forced to go into a witness box and give evidence."

36.      We would refer also to the statement of Kirby P in Accident Insurance Mutual Holdings, referred to earlier, and in particular the following passage:-

"It is for the presiding judicial officer to determine whether the objection taken is good and whether there are reasonable grounds for the belief on the part of the witness that he or she is, or may be, in peril of future criminal or like proceedings if the answer is given.  Just as the court must protect the privilege, it must also make sure that the rule is not abused; but applied only where its invocation is justified. ........ The proper procedure in a claim for privilege is to object to each question as it is asked ..........  It is not proper to refuse to be sworn or to decline to answer any questions at all or to claim a global protection from the privilege.  Such a refusal may amount to a contempt of court.  Nevertheless, a point will be reached in questioning where it will be unnecessary to persist with an entire cross-examination which is clearly futile by reason of the invocation of the privilege against self-incrimination.  To demand a tedious repetition of questions, rebuffed every time by a claim of privilege which is upheld, would be pointless........." [emphasis added]

37.      In response to this powerful body of authority, Mr Sinel relied on two cases.  First he referred to Den Norske itself.  In that case a Mareva injunction had been obtained against the defendant with the usual disclosure order requiring the defendant to provide information on affidavit about his assets.  The defendant claimed not to be obliged to provide certain information on the grounds that he might incriminate himself.  The plaintiff sought leave to cross-examine the defendant on his affidavit.  The judge refused to deal with the issue of self-incrimination as a discrete issue before allowing cross-examination and decided to proceed by considering any claim of privilege as it arose in relation to individual questions.  It is quite clear that the matter became extremely complicated with much debate and doubt as to whether particular answers did or not fall within the privilege.  The judge gave a number of rulings that the defendant had to answer particular questions. 

38.      The matter then went to appeal.  Much of the judgment of the Court of Appeal is taken up with the issue of whether the judge had interpreted the privilege too narrowly by taking the view that the defendant should answer questions because the answers would not increase the already existing risk of prosecution.  The Court of Appeal held that the judge had erred in this respect.  However that aspect of the case is not relevant for us today. 

39.      The passage which Mr Sinel relies upon is to be found in the judgment of Waller LJ (who gave the sole judgment) at 291 where he said:-

"But it seems to me clear that it would have been helpful if further consideration had been given to self-incrimination before commencing any examination.  It is true that in normal circumstances where a witness is giving evidence at a trial, the usual course is to take the questions one at a time and see whether any objection is taken, and whether the objection is well founded.  But where the question is whether the examination should take place in relation to an affidavit sworn pursuant to a Mareva injunction, and where self-incrimination is raised as in this instance in the affidavit, a ruling on that aspect would assist in deciding whether the examination would be of any purpose and will further assist in defining those areas to which examination should be limited."

The Court went on to hold that, had that occurred, while some cross-examination would have been allowed, it would have been narrower than that which the judge in fact permitted. 

40.      Mr Sinel submits that the case shows that the question of self-incrimination may be dealt with before the witness goes into the witness box.  He contends that the present case is a clear example of where that would be the appropriate course because essentially the whole of the evidence of Simon and Timothy, as summarised in their respective witness statements, would be subject to the privilege claim.  It should therefore be resolved before they go into the witness box so as to avoid the charade referred to by Kirby P in the passage referred to at para 36 above. 

41.      The second case relied upon by Advocate Sinel is Shannon v United Kingdom [2006] 42 EH RR 31.  Suffice it to say that, try as we might, we are unable to see the relevance of that case to the point which we have to decide, which is whether it is arguable that this Court, rather than the criminal court before whom Timothy and Simon will be called to give evidence, should adjudicate on their claim that they should not have to give evidence because they might incriminate themselves. 

42.      Den Norske assists Mr Sinel to the extent of showing that, although the normal course is to consider the question of privilege only once the witness has been sworn and in relation to specific questions which are asked of him, this is not mandatory.  It may be appropriate in some cases for the judge to consider the matter before the witness begins to give evidence, particularly if any ruling may help in establishing the parameters of any permissible questioning and whether, as a result, there is any point in the witness giving evidence at all. 

43.      But Den Norske does not assist him on the issue of whether any court other than the court before whom the witness is to give evidence can or should rule on the question of the witness's privilege.  On the contrary the Court of Appeal clearly envisaged that it was the judge before whom the defendant was to give evidence who would have considered the issue immediately before the defendant went into the witness box, not some other court.  We have not been referred to a single case where a court other than the court of trial has ruled on the matter.  Furthermore all the formulations of the privilege against self-incrimination to which we have been referred, whether in text books or in the cases, clearly envisage that it is the trial court before whom the witness is to give evidence which will rule on the extent of the privilege. 

44.      In our judgment there is good reason for that.  In the first place, it is the court of trial which will be familiar with the issues in the case and the nature of the evidence which is to be given.  Questions of privilege can more easily and satisfactorily be dealt with by a court which has that familiarity.  Secondly, the question of whether there is a real and appreciable risk of prosecution must be assessed at the time the witness is asked to give the evidence he says may expose him to that risk.  Circumstances may change.  Let us assume in the present case that Timothy and Simon were able to satisfy this Court at this stage that there was a real and appreciable risk that the Revenue might prosecute them if they were to give evidence in accordance with their witness statements.  Let us further assume that, prior to the trial in January, the Attorney General were to make contact with the Revenue and were to obtain satisfactory assurances from them that they had considered the witness statements and the SFO interviews and that nothing in them had caused them to change their decision under the Hansard procedure and that there was no likelihood of their wishing to prosecute Simon or Timothy.  That would clearly be a most material consideration for the trial judge to take into account when assessing whether there was a real and appreciable risk of prosecution if the brothers were to give evidence.  It would be quite wrong for Simon and Timothy not to have to give evidence on the basis of a declaration by this Court that they might  incriminate themselves if, by the time they would actually give evidence, the factual position had changed and there was no longer any risk. 

45.      We are quite satisfied that the decision on whether a witness may refuse to answer questions on the grounds that he may incriminate himself is a decision to be taken by the court before whom the witness is to give evidence.  We accept that, in a suitable case, that court may choose to consider the matter shortly prior to the witness going into the witness box or when he first goes into the witness box and it may well be that, for the reasons put forward by Mr Sinel, this would be a suitable case in which to follow that procedure; but that would be a matter for the trial judge and he would no doubt wish to satisfy himself that he had up to date information concerning the risk of prosecution and whether there was any possibility of that situation changing.  For the reasons we have given we consider that any argument that this Court should decide such a matter is doomed to failure. 

46.      As a final submission on this issue, Mr Sinel argued that, on the particular facts of this case, the decision as to whether the claim to privilege was made out would fall to be determined by the Southampton Magistrates Court and not the trial judge in the criminal proceedings in Jersey.  The reasoning underlying the conclusion in the preceding paragraph was therefore not applicable.   

47.      The submission arises in this way.  As already mentioned, the plaintiffs are not willing to come to Jersey.  It follows that, if they give evidence, they will do so by television link from Southampton Magistrates Court pursuant to Section 30(3) of the Crime (International Co-operation) Act 2003 of the United Kingdom.  Part I of Schedule 2 of that Act contains provisions governing the procedure for the giving of such evidence.   The relevant paragraphs of Schedule 2 are as follows:-

"5     The nominated court is to intervene where it considers it necessary to do so to safeguard the rights of the witness.

6      The evidence is to given under the supervision of the court of the country concerned. 

7    The evidence is to be given in accordance with the laws of that country ......

9(1)   The witness cannot be compelled to give any evidence which he could not be compelled to give in criminal proceedings in the part of the United Kingdom in which the nominated court exercises jurisdiction."

48.      Mr Sinel submitted that it would therefore be the Southampton Magistrates Court which would determine the witness's claim to privilege.  We do not agree that it is as simple as that.  Applying it to this case, the Schedule provides that the evidence of Timothy and Simon is to be given in accordance with the law of Jersey and under the supervision of the Royal Court (which will be the court of trial in the criminal proceedings).  The law of Jersey recognises a privilege against self-incrimination in the same way as the law of England.  It follows that it will be for the trial judge in Jersey to consider and rule upon any claim to privilege by any of the witnesses appearing by television link.  However, by reason of paragraphs 5 and 9 of Schedule 2 there is in effect a form of instantaneous appeal to the Southampton Magistrates Court against any decision by the trial judge in Jersey.  Should the Magistrates Court conclude that the trial judge has erred in his ruling and is compelling a witness to give evidence which he could not be compelled to give in England because it would infringe his privilege against self-incrimination, the Magistrates Court may intervene under paragraph 5.  Nevertheless, we are clear that the primary decision is to be taken by the trial judge in Jersey on the grounds that the evidence is to be given in criminal proceedings in Jersey, is to be given under the supervision of the Jersey Court, and is to be given in accordance with the laws of Jersey. 

49.      For these reasons we hold that the claim of Timothy and Simon under sub-paragraphs (iii) and (iv) that their claim to privilege against self-incrimination is validly made on the facts of this case and should be upheld is doomed to failure on the basis that this is a matter for the trial court. We therefore strike it out as frivolous, an abuse of process and under the inherent jurisdiction.

(v)   The taking of the statements on 19^th March 2004 from Timothy and Simon

50.      Sub-paragraph (v) seeks a declaration that the taking of the witness statements on 19^th March 2004 from Timothy and Simon violated their rights under (at least) Article 8 of the European Convention on Human Rights ("the Convention") and/or the common law. 

51.      As set out in the order of justice, the claim in relation to this matter is fairly narrowly drawn.  It relates solely to the taking of the statements from Timothy and Simon on 19^th March 2004.  We would summarise the basis of the claim as set out in the order of justice and elaborated by Mr Sinel in his skeleton argument as follows:-

(i)        Timothy and Simon were misled by what DS Gay said to Timothy when arranging the meeting at which the statements were taken.  They understood that the meeting was a continuation of the Section 2 interviews and that accordingly they were under compulsion to attend and make their respective statements. 

(ii)       They had no legal advice prior to making the statements.

(iii)      At no time prior to making the statements were they advised by those acting for the Attorney General of their right to refuse to co-operate in attending for interview, or of their right to refuse to answer any questions or make a statement, or of their right not to incriminate themselves or of their right to take legal advice before proceeding any further with a meeting or to have a legal representative present. 

(iv)      At no time prior to making their statements were Timothy and Simon informed by the Attorney General's representatives that he was in possession of their Hansard material and that he might disclose this material to the defendants in the criminal proceedings. 

(v)       Prior to the disclosure of the Hansard material by the Revenue to the Attorney General Timothy and Simon were not informed by the Revenue or the Attorney General of the intention to do so, nor were they informed by the Attorney General that such disclosure had taken place until 9^th June 2006.

(vi)      The disclosure of the Hansard material to the Attorney General by the Revenue was not accepted by the plaintiffs as being lawful. 

(vii)     In summary, in the absence of knowledge of these matters, the plaintiffs were not in a position to make an informed decision as to whether to co-operate and give a statement.  This therefore infringed their Article 8 rights of privacy and their common law rights. 

52.      During the hearing the Court pointed out that, the Human Rights (Jersey) Law not yet being in force, no cause of action lay as such for a breach of Article 8 and it was not clear what common law rights were said to be infringed.  In their supplemental contentions, submitted after the hearing, the plaintiffs not only elaborated on which common law rights they said had been infringed but also expanded the conduct of the Attorney General which they said gave rise to such infringement.  If they are permitted to continue, the order of justice will need to be amended to reflect this but we propose to consider the matter on the basis of the submissions put forward in the supplementary contentions.

53.      In briefest outline the plaintiffs contended that the Attorney General had committed the torts of misuse of private information, breach of confidence and abuse of power.  On the basis of the decision of the House of Lords in Campbell v MGN Limited [2004] 2 WLR 1232 they submitted that, where private or personal confidential information is in issue, an action for breach of confidence has been reshaped into an action for misuse of private or personal information.  In considering such matters the underlying values of Article 8 are of the first importance and the Court will need to conduct a balancing exercise, balancing the plaintiffs' right or interest in keeping the information private against the countervailing interest to the recipient in publishing it.  Mr Sinel submitted that the decision of the Jersey Court of Appeal in Cole v Jersey Post [2004] JCA 087 showed that Jersey law was developing in a similar manner and that the values enshrined in Article 8 and Article 10 of the Convention were now to be regarded as part of the cause of action for breach of confidence (and therefore misuse of private information). 

54.      The plaintiffs submit that the Attorney General has misused four categories of their private information:-

(i)        The Hansard material.

(ii)       The SFO interviews.

(iii)      The short interviews on 19^th March 2004.

(iv)      The witness statements on 19^th March 2004.

55.      They submit that, for the reasons set out in the order of justice and summarised briefly at para 51 above, the Attorney General obtained the information by unlawful or improper means or by a trick and they go on to allege that the disclosure of that information to the defendants in the criminal proceedings amounts to one or more of the three torts. 

56.      In our judgment, it has to be borne in mind that Timothy and Simon are potential witnesses, not suspects.  Inevitably, in pursuit of the need to prosecute crime, confidential information belonging to a witness often has to be given to the defendants as part of the prosecution process.  Thus, in Taylor v Serious Fraud Office 3 WLR 1040 Lord Hoffmann said this at 1049:-

"Many people give assistance to the police and other investigatory agencies, either voluntarily or under compulsion..........   They will be moved or obliged to give the information because they or the law consider the interests of justice so require.  They must naturally accept that the interests of justice may in the end require the publication of the information or at any rate its disclosure to the accused for the purposes of enabling him to conduct his defence.    But there seems to me no reason why the law should not encourage their assistance by offering them the assurance that, subject to these overriding requirements, their privacy and confidentiality will be respected." [emphasis added]

In similar vein, Dillon LJ in Marcel v Commissioner of Police [1992] Ch 225, when considering the use to which documents obtained by the police in the United Kingdom under the Police and Criminal Evidence Act 1984 could be put, cited the following part of the first instant judgment of Sir Nicolas Browne-Wilkinson with approval at 256:-

"In my judgment, subject to any express statutory provision in other Acts, the police are authorised to seize, retain and use documents only for public purposes related to the investigation and prosecution of crime and the return of stolen property to the true owner.  These investigations and prosecutions will normally be by the police themselves and involve no communication of documents or information to others.  However, if communication to others is necessary for the purposes of the police investigation and prosecution, it is authorised." [emphasis added]

57.      The plaintiffs submitted in their supplementary contentions that the Court could not consider any balancing exercise between the confidentiality of the information and the public interest of the Attorney General's disclosure on a strikeout application; that was a matter which could only be resolved at trial.  However, we do not accept that this is so.  In Hellewell v Chief Constable [1995] 1 WLR 804 the police had taken photographs of the plaintiff in a police station following his being charged with offences.  These photographs were circulated to shopkeepers who had asked the police to supply photographs of individuals known to be causing trouble in the area so that staff could recognise them.  The plaintiff brought an action against the Chief Constable on the grounds of breach of confidence seeking declaratory relief and an injunction.  The Chief Constable applied to strike out the claim on the grounds that it disclosed no reasonable cause of action.  Laws J held that a duty of confidence could arise in relation to such a photograph but the action should nevertheless be struck out because the Chief Constable was bound to succeed at trial in establishing a public interest defence for the disclosure, on the basis that the photographs had been used reasonably for the prevention and detection of crime. 

58.      We have not found this aspect of the plaintiffs' claim easy to resolve.  We have found it helpful to begin by considering what our decision would have been had there been no allegation that the Attorney General's representatives had misled Timothy and Simon about whether they had to make the statements.  In other words we propose to consider the position on the assumption that they both gave their witness statements voluntarily and appreciated that this was so.  Would the other matters relied upon by the plaintiffs give rise to an arguable claim against the Attorney General for misuse of private information, breach of confidence or abuse of power, being the three torts referred to by the plaintiffs. 

59.      In those circumstances, we would undoubtedly have concluded that any such claim would be doomed to failure.  It is to be recalled that we are considering here the position of a witness, not a suspect.  In our judgment there is no legal obligation, enforceable in private law, on the police or prosecution to inform a witness of his right to refuse to co-operate in attending for interview; to inform him of his right to refuse to answer any question or make any statement; of his right not to incriminate himself; or of his right to take legal advice before proceeding or to have a legal representative present.  Of course, should a witness ask about any such matter, the police/prosecution must give a frank answer but the fact that the police do not volunteer any of these matters cannot give rise to an arguable claim against them by the witness for misuse of private information, breach of confidence or abuse of power.  Mr Sinel was unable to point to any authority which supported the existence of such a claim.

60.      Furthermore, it is an inevitable part of the criminal justice process that other material relevant to what a prosecution witness is going to say has to be disclosed to the defence in the interests of a fair trial.  Mr Sinel was unable to point to any authority which suggested that there was a duty on the police/prosecution, before taking or using a witness statement, to point out to the witness exactly what other material relating to his affairs they had in their possession and might have to disclose to the defence.  Indeed, such an obligation would place an impossible burden on the prosecuting authorities.  Take for example a complex fraud case with millions of documents.  Is it really to be said that a witness will have a private law action against the prosecuting authorities because they have not alerted him to the fact that they are in possession of other material which concerns his affairs and which will have to be disclosed to the defence?  In our judgment, it is simply unarguable that, if the police/prosecution do not inform a witness before he gives a witness statement that they are in possession of other material concerning his private affairs which will have to be disclosed to the defence, the witness will have an action in tort against the police/prosecution for misuse of private information, breach of confidence or abuse of power.  Furthermore, for the reasons set out in the comments of Lord Hoffmann and Browne-Wilkinson V-C referred to above, a public interest defence in relation to the disclosure of any of the material listed at para 54 above to the defendants in the criminal proceedings would be bound to succeed - a fair trial cannot take place without such disclosure - and that is so even if the witnesses were not warned in advance that such disclosure would occur. 

61.      It follows that, if Timothy and Simon gave their witness statements on 19^th March voluntarily, the fact that the Attorney General's representatives did not inform them that the Attorney General was in possession of Hansard material (as is alleged in the order of justice) or did not inform them that the Hansard material and the SFO interviews would have to be disclosed to the defence, would not lead to any arguable cause of action against the Attorney General for misuse of private information, breach of confidence or abuse of power.  We would therefore have struck out sub-paragraph (v). 

62.      However, what is alleged in this case is that the two witness statements were not given voluntarily; they were given as a result of the belief on the part of Timothy and Simon that they were under compulsion to give these statements, which belief was induced by what the representatives of the Attorney General had said to them. They submit in effect that private information about their affairs was obtained by a trick or positive +misrepresentation. 

63.      It seems to us that, if this was so, the plaintiffs ought to be given the opportunity of arguing that the Attorney General is liable to them on the basis of more or other of the three torts referred to.  We think it arguable that the otherwise lawful disclosure to the defendants in the criminal case of the SFO interviews, the Hansard material and the other material (because of the requirements of the criminal justice system) may not save the day if such disclosure only had to be made as a result of the unlawful obtaining of the private information in the witness statement by the Attorney General.  We are not to be taken as saying that any such claim will succeed, only that it is not so weak that the plaintiffs ought to be prevented from bringing it. 

64.      The question is whether it is arguable that the Attorney General did indeed obtain the witness statements unlawfully by misrepresenting that Timothy and Simon were under an obligation to make them.  On this aspect the plaintiffs rely merely on the assertions contained in the order of justice.  As against that DS Gay has sworn an affidavit and other documents have been made available to us.  There are certainly apparent weaknesses in the assertions in the order of justice.  Thus:-

(i)        The order of justice alleges that at no time prior to the making of the witness statements on 19^th March were Timothy or Simon informed that their Hansard material was in the possession of the Attorney General.  Indeed it goes further and alleges specifically that they were only informed of this by the Attorney General on 9^th June 2006.  However the transcripts of the short interviews carried out on 19^th March before the statements were taken are now available and show that this allegation is obviously not true.  Timothy and Simon were both referred specifically to the Hansard material in the possession of DS Gay and indeed they were questioned about the fact that there might be thought to be variations between what they had said in the Hansard interviews and what they had said in the SFO interviews. 

(ii)       The order of justice asserts that at no time before the witness statements were taken on 19^th March did the Attorney General's representatives inform Timothy or Simon of their right to take legal advice before proceeding.  As against that, DS Gay's notebook, which is exhibited to his affidavit and which was countersigned by the English barrister present with him on 19^th March, states that Timothy and Simon were advised that they could obtain legal advice if they wished. 

(iii)      The order of justice asserts that Timothy and Simon thought that they were under compulsion to make witness statements because the interview was a continuation of the SFO compulsory interviews.  However, as Mr Belhomme submits, the transcripts of the SFO interviews and the interviews on 19^th March show that a very different approach was being adopted.  Thus, in the case of the Section 2 interviews, the SFO representative stated specifically that it was a Section 2 interview and then informed each of Timothy and Simon that they were obliged by law to answer truthfully etc and that they could be prosecuted if they withheld any information or gave false or misleading information.  They were also told that if a prosecution was brought against anyone as a result of the investigation, they might be asked to make a formal witness statement.  This is to be compared with what was said on 19^th March 2004 when no such warning was given and the interview with Simon began by Mr Nashashibi saying "Mr Trant, thank you for coming to see us again, as you know, we've invited you here to make a witness statement which is basically based on your, the last interview you gave us at the office of the Serious Fraud Office a few months ago."  The introduction of the interview with Timothy was to like effect.  It must, says Mr Belhomme, have been obvious to them that the proceedings were completely different and that they were not under any compulsion. 

(iv)      DS Gay has sworn an affidavit in which he says that he did not suggest that they were obliged or compelled to attend on 19^th March.

65.      Mr Belhomme submitted that we are entitled to take into account the state of the evidence when considering whether to strike out under the Court's inherent jurisdiction or on the basis that the claim is frivolous or vexatious or an abuse of process.  The affidavit of DS Gay and the various documents had shown a number of the assertions in the order of justice to be groundless.  The plaintiffs had had the opportunity of putting in evidence in rebuttal of DS Gay's affidavit but had chosen not to do so.  In the circumstances the Court should strike out the claim on one of the above grounds. 

66.      Mr Sinel, on the other hand, submitted that the Attorney General had only submitted evidence on a part of the claim.  A strike out application was not an occasion for trial upon affidavit.  The plaintiffs had made their assertions in the order of justice and were entitled to have the opportunity of calling evidence to prove those assertions.  The Court should not strike out their claim merely because, on advice, they had chosen not to put in an affidavit in response. 

67.      We think that the plaintiffs would have been well advised to put in evidence dealing with these key aspects of the claim once the Attorney General had filed evidence on the point and the absence of such evidence has caused us to hesitate in allowing the claim to go forward.  Nevertheless, on balance, we have been persuaded that it would be wrong to prevent the plaintiffs from pursuing their allegation that the statements were obtained unlawfully as a result of misrepresentation on behalf of those representing the Attorney General and that, as a result, they have a claim against the Attorney General for misuse of private information, breach of confidence and/or abuse of power.  We therefore decline to strike out sub-paragraph (v) of paragraph 1.1 of the order of justice. 

(vi)   The taking of Patrick's witness statement on 19^th November 2003

68.      Sub-paragraph (vi) alleges that the taking of Patrick's witness statement on 19^th November 2003 violated his rights under (at least) Article 8 of the Convention and/or the common law.  As for Timothy and Patrick, the reference to common law was elaborated in the supplementary contentions as meaning a reference to one or more of the torts of misuse of private information, breach of confidence or misuse of power. 

69.      There is no question in the case of Patrick that he thought that he was under compulsion on 19^th November.  What is said in the order of justice is that Patrick was not informed by the Attorney General's representatives that they were in possession of the Hansard material nor that they would or might disclose it to the defendants in the criminal proceedings.  He therefore could not make an informed decision as to whether to make a witness statement.  We have already dealt with these arguments when considering the position of Timothy and Simon under sub-paragraph (v) and, for the reasons set out earlier, we think that any claim against the Attorney General on this basis is doomed to failure. 

70.      In Patrick's case there is the additional feature that the affidavit of DS Gay states that the Hansard material did not come into the Attorney General's possession until March 2004, which was some four months after the statement from Patrick was taken.  The Attorney General was not therefore even in possession of the Hansard material at the relevant time.  Mr Sinel submitted that the Attorney General should nevertheless have disclosed to Patrick that he might obtain the Hansard material and might then disclose it to the defendants in the criminal case but, given our decision on the position if the Attorney General had been in possession of the Hansard material, we regard this further argument as even more un-arguable.  We therefore strike out sub-paragraph (vi) on the grounds that it discloses no reasonable cause of action, is frivolous, is an abuse of process and under the inherent jurisdiction.

(vii)   Patrick has no relevant evidence

71.      Sub-paragraph (vii) asks for a declaration that, because Patrick has no relevant evidence to give, there is no necessity for him to give evidence in the criminal proceedings against Mr Michel and Mrs Gallichan and any attempt to obtain evidence from him would therefore be an abuse of process. 

72.      Contrary to Mr Belhomme's submission, we accept that, in an extreme case where it is wholly obvious that a witness cannot possibly give any relevant evidence, this Court may have jurisdiction to intervene.   But essentially the decision as to what evidence is necessary in order to bring home a criminal charge is a matter for the prosecution under the overall control of the trial judge in the criminal trial. 

73.      Patrick's witness statement states in summary, that Somerley was set up without the consent of the board of directors of the Company, that he had never heard of Somerley and, so far as he was aware, Somerley had never done any work for the Company.  Mr Belhomme submits that evidence of his lack of knowledge of Somerley is material evidence to show the wrongdoing on the part of Simon and Timothy and his assertion that Somerley did no work helps prove the falsity of the invoices submitted, which in turn goes to assist in proving the cheating of the Inland Revenue.

74.      In our judgment this is clearly capable of being relevant evidence and it is a matter which should therefore be left to the prosecution and to the trial judge.  It is certainly not a matter where this Court could conceivably conclude that the evidence was so obviously irrelevant that the Attorney General should be prevented from calling the witness.  We therefore strike out sub-paragraph (vii) on the same grounds as sub-paragraph (vi).

(viii)  Non-disclosure of the existence of the Hansard material

75.      This sub-paragraph claims that the Attorney General's failure to inform the plaintiffs of the fact that disclosure of the Hansard material to the defendants in the criminal proceedings was to be made or had been made violates the plaintiffs' rights under (at least) Article 8 of the Convention and under the common law.  As mentioned earlier that latter phrase has now been elaborated to mean the torts of misuse of private information, breach of confidence and/or abuse of power. 

76.      We have already dealt with this argument in the course of addressing the submissions in relation to sub-paragraph (v).  We repeat our conclusions to the effect that we think that such a claim is unarguable and doomed to failure.  We therefore strike it out on the grounds that it discloses no reasonable cause of action, is frivolous, is an abuse of process and under the inherent jurisdiction. 

(ix)    The Attorney General's decision to request that summonses be issued by the Southampton Magistrates Court

77.      Sub-paragraph (ix) seeks a declaration that, in relation to the request made by the Attorney General to the United Kingdom authorities for the plaintiffs' evidence to be taken before a court in England (which led to the summonses being issued by the Southampton Magistrates Court) the Attorney General acted unlawfully because, at the time of making such request, he knew or ought to have known that none of the plaintiffs could give material evidence. 

78.      It is clear from the order of justice (see paras 10.6 and 12 in particular) that the sole ground relied upon for this assertion is that the Attorney General knew or ought to have known that Timothy and Simon would be unable to give evidence without incriminating themselves, that they intended to exercise their privilege against self-incrimination and that, if they did, they would be unable to give any relevant evidence.  His request to the UK authorities, which led to the plaintiffs being summoned to the Southampton Magistrates Court, was therefore unlawful and was an attempt to circumvent any application by Timothy and Simon to rely upon their privilege against self-incrimination.

79.      In our judgment this argument is bound to fail.  The Court has held that the question of whether and to what extent Simon and Timothy may refuse to answer questions or even give evidence on the basis that they might incriminate themselves is an issue to be decided upon by the trial judge (and the Southampton Magistrates Court) and is to be considered by those courts at the relevant time by reference to the facts (including whether there is a real and appreciable risk of prosecution) existing at that time.  There is therefore no question of the Attorney General circumventing the rights of Timothy and Simon in this respect.  Their claim to privilege will be assessed when they are called to give evidence.  Whether it is upheld or not will depend entirely upon the decisions of those courts at that time.  There is therefore no question of the Attorney General's decision to seek assistance from the UK authorities being unlawful or having the effect of circumventing the claim of privilege. 

80.      Nor can it be said that the Attorney General knows or ought to know that the claim will be upheld and therefore that they will not be able to give any material evidence.  As we have said, the validity of the claim to privilege depends not only on whether they will have to admit to having committed criminal offences but also on whether there is a real and appreciable risk of prosecution as a result.  That will depend upon the circumstances at the time.  Neither the Attorney General nor we can assess at this time whether the claim will be upheld or not. It cannot therefore be said that the Attorney General knew or ought to have known that the claim would be upheld.  We therefore strike out sub-paragraph (ix)

81.      We would add as an aside that this aspect of the proceedings should have been brought by way of an application for judicial review.  Rule 16/1(1) states that any application for a declaration injunction or other order in any public law matter must be brought in such a manner and paragraph (2) of that Rule provides that an application is made in a public law matter if the application relates to the validity of a decision or other action of a public authority.  The Attorney General in this context is clearly a public authority and what is alleged is that his action in seeking assistance from the UK authorities is invalid.  Mr Sinel argued that the matter did not fall within Part 16 of the Royal Court Rules because it was not an application in civil proceedings; it related to criminal proceedings.  However, this is to ignore the recent decision of the Court of Appeal in Durant Corporation v Attorney General [2006] JLR 112 where it was held that proceedings in the Royal Court by way of judicial review are proceedings in a civil cause or matter for the purposes of the Court of Appeal (Jersey) Law 1961 even if the subject matter relates to criminal proceedings.  We appreciate that, strictly speaking, that is an interpretation of the expression in the Court of Appeal (Jersey) Law, but in our judgment it would be odd if the expression 'civil proceeding' had a different meaning in the Royal Court Rules.  We note that in Durant itself the matter had proceeded under Part 16 of the Royal Court Rules even though it related to assistance given by the Attorney General in criminal proceedings; yet no court seems to have suggested that this was erroneous.  Had we allowed sub-paragraph (ix) of the claim to proceed, we would have suggested that the Attorney General might wish to apply for an order that the Court direct that this aspect of the proceedings continue as if instituted by way of application for judicial review.  (See Rule 6/14)

Conclusion

82.      In conclusion we order that the claims listed in all of the sub-paragraphs of paragraph 1.1 of the order of justice be struck out with the exception of the claim made in sub-paragraph (v).  We have not considered in detail what other parts of the order of justice will have to be struck out as a consequence of the striking out of the claims in paragraph 1.1 but that is a matter which can no doubt be agreed between the parties in due course, with the ability to refer back to us in the event of disagreement. 

83.      It will be necessary in any event for the plaintiffs to amend sub-paragraph (v) in order to elaborate on the alleged breaches of common law as summarised in the supplementary contentions.  The next step therefore is for the plaintiffs to seek leave to file an amended order of justice to reflect that elaboration and the striking out of the other claims. 

84.      As a postscript we should add that the Attorney General's overarching submission was that this Court had no jurisdiction to make any of the orders sought by the plaintiff on the ground that this would amount to an interference in the process of a criminal trial.  As can be seen, we have not based any of our decisions on that simple ground and we accept that, in some circumstances, the civil courts have jurisdiction to grant relief by way of judicial review in relation to criminal proceedings (e.g. R v Director, Serious Fraud Office ex p Smith [1993] AC1 and R(TB) v Stafford Combined Court [2006] EWHC 1645 (Admin).  Whether in a particular case it has or (if it has) should exercise any such jurisdiction falls to be decided in the circumstances of that case.

Authorities

Proceeds of Crime (Jersey) Law 1999.

Criminal Justice Act 1987.

Criminal Justice (International Co-operation) (Jersey) Law 2001.

Crime (International Co-operation) Act 2003.

Re X [2002] JLR 259.

Zamir & Woolf, The Declaratory Judgment, (Second Edition) (1993).

Gouriet v Union of Post Office Workers [1978] AC.

Phipson on Evidence (16^th Edition).

May, Criminal Evidence (5^th Edition).

Blackstone, Criminal Practice (2005).

Den Norske Bank ASA v Antonatos [1999] QB 271.

Accident Insurance Mutual Holdings Limited v McFadden [1993] 31 NSWLR 412.

Shannon v United Kingdom [2006] 42 EH RR 31.

European Convention on Human Rights.Art 8.

Human Rights (Jersey) Law.

Campbell v MGN Limited [2004] 2 WLR 1232.

Cole v Jersey Post [2004] JCA 087.

Taylor v Serious Fraud Office 3 WLR 1040.

Marcel v Commissioner of Police [1992].

Police and Criminal Evidence Act 1984.

Hellewell v Chief Constable [1995] 1 WLR 804.

Durant Corporation v Attorney General [2006] JLR 112.

Court of Appeal (Jersey) Law 1961.

R v Director, Serious Fraud Office ex p Smith [1993] AC1.

R(TB) v Stafford Combined Court [2006] EWHC 1645 (Admin).