W. J. Bailhache, Q.C., Deputy Bailiff, sitting alone
The Office of the Comptroller of Taxes
The Chief Minister of Jersey
The States of Jersey
Advocate J. Harvey-Hills for the Applicant.
Advocate G. G. P. White for the First Respondent.
the deputy bailiff:
1. The applicant is the Special Attorney of Dr John Hawkswell-Curtis (the "International Executor"), executor of the worldwide estate of the late Alan Henry Woods (the "deceased"). The applicant obtained a grant of probate on behalf of his constituent by Act of the Royal Court of 4th December, 2009. On 23rd October, 2014, the first respondent served on the applicant a notice to produce tax information pursuant to a request for information received from the Australian Competent Authority. The notice was issued under Regulation 3 of the Taxation (Exchange of Information with Third Countries)(Jersey) Regulations 2008 ("the Regulations"). The notice indicated that the request for information was made in connection with:-
(i) Ms Victoria Marnie Woods [address and date of birth given];
(ii) The deceased [address: c/o The Executor of the Estate [address of the International Executor given and also the date of birth and death of the deceased];
(iii) Libertarian Investments Limited a company registered in Jersey ("Libertarian"); and
(iv) Victoria Woods Trust.
2. By Clause 4 of the Notice the following instruction was given:-
"In accordance with Regulation 3 paragraph 5(e)(iii), you are required not to inform Ms Victoria Marnie Woods of this notice."
3. The applicant responded on 28th October, 2014, with a letter to the Deputy Comptroller of Taxes which in particular asked for a copy of the request from the Australian Competent Authority and the confirmation that the first respondent had given the prohibition in Clause 4, to which I have referred above, very careful consideration rather than merely adopting a "tick box" approach. The applicant asked for confirmation as to the basis on which the prohibition had been exercised. He also requested confirmation that he was able to discuss the notice with the International Executor, having noted that the terms of Clause 4 did not expressly prevent him from doing so. Finally he asked for confirmation as to whether this was a criminal or civil tax investigation.
4. The first respondent's response to those questions on 30th October, 2014, was:-
(i) A copy of the request letter from the Australian Competent Authority would not be supplied but it had been carefully considered and the request was thought to be a valid one falling within the Jersey/Australia Tax Information Exchange Agreement.
(ii) The prohibition had been made in accordance with Regulation 3(5)(e)(iii) of the Regulations, which sub-paragraph was then quoted.
(iii) The original notice dated 23rd October, 2014, was withdrawn and a further notice served. The persons identified as those to whom the notice was made in connection with remained the same. The prohibition however had been varied and now read as follows:-
"In accordance with the Regulation 3 paragraph 5(e)(iii), you are required not to inform Ms Victoria Marnie Woods, or anyone administering or dealing with the estate of Mr Alan Henry Woods (which includes, without limitation, the international executor of the estate of Mr Woods and any trustee or other person administering the trust known as the "Victoria Woods Trust") or Libertarian Investments Limited of this notice or any information relating to this notice."
5. On 12th November, 2014, the applicant applied for leave to commence judicial review in relation to the notice served on 30th October. The relief sought included the following:-
(i) Interim relief in the form of a declaration that the applicant could discuss the terms of the disputed notice with those whom he was prohibited from communicating:-
(ii) An order setting aside the disputed notice;
(iii) An order quashing those parts of the regulations prohibiting or impeding access to the Court by way of judicial review;
(iv) Costs; and
(v) Any other remedy.
6. Leave was granted unconditionally on 14th November and I indicated I would sit on Wednesday 19th November to consider the application for interim relief. There was liberty to apply.
7. Accordingly, the application before me is for the lifting of the prohibition on communication as set out in the disputed notice.
8. It was contended by Advocate Harvey-Hills that the application was necessary because:-
(i) The practical effect of the prohibition is to exclude the interested parties from any right of challenge to the disputed notice. They cannot challenge an interference with their rights of which they are not aware. Bearing in mind the provisions of Regulation 14, the judicial review proceedings could be determined and the tax information provided to the Australian Competent Authority before the interested parties had an opportunity to launch proceedings of their own, and this therefore involved an interference with their Article 6 and Article 8 rights under the European Convention on Human Rights 2000 ("the Convention").
(ii) The prohibition caused the applicant practical difficulties because of his various duties of confidentiality. In argument this was slightly expanded. The applicant remains the Attorney of the International Executor in the administration of the estate in Jersey and in that capacity makes interim distributions on a regular monthly basis; and it is unclear whether he would be safe to continue to do so in the light of the lurking Australian tax problem.
(iii) In any event, a discussion with the interested parties might reveal that the disputed notice could be complied with. However the applicant was not in a position to risk this without such a discussion.
9. It became apparent that the application for interim relief was in reality one to be heard pursuant to Regulation 3(7) which empowers the Royal Court to lift the prohibition. It is in these terms:-
"(7) The third party shall not disclose the third party notice nor any information relating to it to the taxpayer that it is prohibited from so disclosing by virtue of any prohibition contained in the third party notice except -
(a) with the written consent of the Competent Authority for Jersey; or
(b) with the consent of the Royal Court."
10. In the instant case, although we have not been provided with the request made by the Australian Competent Authority, the first respondent has confirmed that the requesting authority did ask the Jersey Competent Authority to refrain from notifying the taxpayer involved and gave as a reason the following:-
"It is requested that the taxpayer not be notified as the case involves possible fraudulent activities and notification would prejudice the investigation."
11. The request for information for tax purposes as made by the Australian Competent Authority has not been provided by the first respondent, but there has been produced to me a blank pro forma request for information for tax purposes which I understand is used by requesting authorities. The pro forma is divided into three parts. The first deals with information relevant to the administrative request - who is making it, what the contact points are, to which taxes the request relates and so on. The second part identifies the persons under examination or investigation and sets out what information is requested, for what purpose it is requested and what grounds exist for concluding that the information requested is foreseeably relevant to tax administration and enforcement, among other matters. Part 3 is headed "additional information" and invites the requesting authority to indicate whether there is any request to the competent authority in Jersey to refrain from notifying the taxpayers involved, with boxes to be ticked indicating yes or no as the case may be. The form requires the requesting authority, if ticking the box marked "yes" to indicate the reasons for doing so. Accordingly in this case the evidence before me is that the Australian Competent Authority has ticked the box marked yes in part 3 of the pro forma, and indicated the reason as being prejudice to an investigation of possibly fraudulent activities by the taxpayer. This is a prescribed ground for making a request pursuant to Regulation 3(5)(e)(ii) of the Regulations. Unless a prescribed ground is available, Regulation 3(4) provides an obligation on the competent authority for Jersey to send to the taxpayer to whom a third party notice relates a copy of that notice within seven days of the giving of that notice, provided that the competent authority knows the taxpayer's name and address, which he does in this case.
12. It is of interest that Regulation 3(5)(e)(ii) is in similar terms to Regulation 3(5)(c), which enables the competent authority for Jersey not to notify the taxpayer of the provision of a third party notice if the competent authority is satisfied that there are reasonable grounds for suspecting that the taxpayer has committed a relevant criminal offence. The difference between the two paragraphs is that in sub-paragraph (c) the Jersey Competent Authority has to be satisfied that there are reasonable grounds for suspecting the taxpayer has committed a relevant criminal offence, whereas in sub-paragraph (e) more passive language is used - merely that the third country has requested the taxpayer be not informed on the same grounds. A similar issue arises on a comparison of sub-paragraphs (d) and (e)(iii). The question thus arises as to whether it is enough that the third country makes the request, or whether the first respondent needs to make any assessment of that request; and indeed whether there is a requirement of reasonableness on the part of the third country in making that request.
13. I note that in APEF Management Company 5 Limited v Comptroller of Taxes  JRC 262, the third party notice was accompanied by a prohibition, which on the facts of that case was subsequently conceded by the Solicitor General on behalf of the Deputy Comptroller of Taxes. The lawfulness of the prohibition therefore did not arise. Nonetheless the Royal Court indicated at paragraph 55 of its judgment that it had some reservations about the use of "tick box" responses. I am not clear whether the pro forma which was shown to me is the same as the pro forma which was shown to the Royal Court in the APEF Management Company 5 Limited case. For my part however, although it is correct to say that there is a box which requires to be ticked in part 3 of the pro forma, in my judgment the requirement to give reasons for ticking the box marked "yes" meets any criticism that this is a mere tick box response. I do not think it is, because a reason has been given.
14. Of course it is true that the reason is uninformative. It comes close to repeating verbatim the statutory language, or "parroting the statutory language" to use the expression of the Court of Appeal in Housing Committee v Phantesie Investments Limited [1985-86] JLR 96 at page 112.
15. Before considering further the question of whether it is enough that the third country makes the request, or whether the first respondent needs to make any assessment himself of it, it is appropriate to look at the Tax Information Exchange Agreement and the Regulations in more detail.
16. The Tax Information Exchange Agreement (the "TIEA") between the governments of Jersey and Australia respectively was made on 10th June, 2009. The scope of the agreement is set out in Article 1 which is in these terms:
"The parties through their competent authorities shall provide assistance through exchange of information that is foreseeably relevant to the administration and enforcement of the domestic laws of the Parties concerning the taxes covered by this agreement, including information that is foreseeably relevant to the determination, assessment, enforcement or collection of such taxes, with respect to persons liable to such taxes, or to the investigation or the prosecution of civil or criminal tax matters in relation to such persons. A requested Party is not obliged to provide information which is neither held by its authorities nor in the possession of, or obtainable by, persons who are within its territorial jurisdiction. The rights and safeguards secured to persons by the laws or administrative practice of the requested Party remain applicable to the extent that they do not unduly prevent or delay the effective exchange of information."
17. Article 4.6 contains provisions as to how a request for information should be formulated. It must be formulated "with the greatest detail necessary" and is required to specify some particular factual information, including the identity of the person under examination or investigation, the nature of the information requested, the tax purpose for which the information is sought, and the reasons for believing that the information requested is foreseeably relevant to the tax administration and enforcement of the requesting Party, with respect to the person identified as the person under examination or investigation.
18. Under Article 7 of the TIEA there is a general provision that information provided and received by the competent authorities of the parties shall be kept confidential.
19. In my judgment, given that the government of Jersey is a public authority for the purposes of the Human Rights (Jersey) Law 2000, it must have been contemplated by the government when entering this agreement that it would apply the terms of the agreement consistently with the requirements of the Human Rights Law. These include the rights which are asserted by the applicant in this case to be relevant, namely Article 8 of the Convention which provides for the right to respect for private and family life, and Article 6 of the Convention which requires that in the determination of a person's civil rights and obligations, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. I will return to the detailed provisions of the Convention later, but in the context of the scope of the TIEA as defined by Article 1 of that agreement, it seems to me that there is at least a question mark over the extent to which Article 1 covers the investigation or prosecution of persons other than those who are liable to the taxes which are the subject of the agreement. The point has not been taken before me, and therefore I will assume, without deciding it, that the TIEA does extend to the investigation or prosecution of people who are not liable themselves to pay taxes as long as the investigation or prosecution of the civil or criminal tax matters involves them, and relates to persons who are liable to pay taxes covered by the agreement. The point may be relevant in the context of this case if only because some of those who are said to be the "taxpayers" for the purposes of the disputed notice are resident in Hong Kong or Guernsey.
20. I now turn to the Regulations.
21. By Article 1(1):-
""Request" means a request that is made by the competent authority for a third country under a tax information exchange agreement for tax information regarding a person and that complies with the requirements of that agreement:
"Taxpayer" means the person who is the subject of a request."
22. By Article 1A:-
"(1) For the purposes of these Regulations "tax information" means information which is foreseeably relevant to the administration and enforcement, in the case of the person who is the subject of a request, of the domestic laws of the third country whose competent authority is making the request concerning any tax listed in the third column in the schedule opposite the entry for that third country, including information that is foreseeably relevant to -
(a) the determination, assessment and collection of such taxes;
(b) the recovery and enforcement of such taxes;
(c) the recovery and enforcement of tax claims; or
(d) the investigation or prosecution of tax matters."
23. It is to be noted that the definition of "tax information" is linked to the relevant Tax Information Exchange Agreement, because it must be foreseeably relevant to the administration and enforcement of the domestic laws of the requesting country insofar as concerns the person who is the subject of a "request", which itself is defined as something which complies with the relevant TIEA.
24. Before turning to Regulation 3, it is right to note that the Regulations were the subject of extensive review in not only the APEF Management Company 5 Limited case to which I have already referred but also by the Jersey Court of Appeal in Volaw Trust and Corporate Services Limited and Larsen v Comptroller of Taxes  (2) JLR 499. The principles which the Court of Appeal set out in Volaw Trust are helpful and it seems to me generally fall to be applied in the present case, although I must note that the regulations which the Court of Appeal construed in that case have been changed significantly by amendments adopted by the States in 2012 and 2013. Indeed the Regulations with which I am now concerned were substantially amended in November 2013 and were not the Regulations with which the Royal Court was concerned in APEF Management.
25. Regulation 2 of the Regulations provides in its material parts as follows:-
"(1) Where the competent authority for Jersey decides to respond to a request concerning a taxpayer, the competent authority for Jersey shall require the taxpayer to provide to the competent authority for Jersey all such tax information that the competent authority for Jersey requires for that purpose."
26. Regulation 3 provides insofar as is material:-
"(1) Where the competent authority for Jersey decides to respond to a request concerning a taxpayer, the competent authority for Jersey shall require a third party, being a person other than the taxpayer, to provide to the competent authority for Jersey all such tax information that the competent authority for Jersey requires for that purpose.
(3) Where a third party notice does not name the taxpayer to whom it relates, it must provide an account number or other identification for the tax information required.
(6) The third party notice shall -
(a) state whether the competent authority prohibits the third party from disclosing to the taxpayer the third party notice or any information relating to the notice (including any information about a warrant issued under Regulation 12 or other information relating to enforcement); and
(b) if the third party notice prohibits that disclosure to the taxpayer, state the ground on which it prohibits that disclosure by reference to one or more grounds mentioned in paragraph (5).
(7) The third party notice shall not disclose the third party notice nor any information relating to it to the taxpayer that it is prohibited from so disclosing by virtue of any prohibition contained in the third party notice except -
(a) with the written consent of the competent authority for Jersey; or
(b) with the consent of the Royal Court."
27. I accept that the notice in this case must be treated as a third party notice issued under Regulation 3, because it refers to the prohibition as having been issued pursuant to Regulation 3(5)(e)(iii). Furthermore Regulation 2 does not provide for any prohibition - unsurprisingly because there would be no point in a prohibition requiring the recipient of the notice from the competent authority not to disclose that notice to himself.
28. Advocate Harvey-Hills, for the applicant, contended that the notice was defective because it did not identify who the taxpayer was - and that was made worse because the first respondent refused to say to who the taxpayer was and refused to provide a copy of the request. In those circumstances, Advocate Harvey-Hills contended that it was impossible for the applicant to know whether the tax information requested of him was foreseeably relevant, because he did not know who the taxpayer was who was the subject of the request. In my judgment this is not a convincing argument on the facts. The notice clearly identifies the persons in connection with whom the notice is issued and prima facie it seemed to me that those persons or entities listed are to be regarded as those subject to the investigation and therefore the taxpayers. To use the language of the definition in Article 1(1) of the Regulations, those are the persons who are the subject of the request.
29. At the hearing I did however ask Advocate White who the taxpayer was for the purposes of the notice and it was only on making that request of him that the affidavit sworn by the Comptroller of Taxes on 18th November, 2014, was produced. I am slightly surprised that this was not provided to the applicant on that day, but, notwithstanding an objection from Advocate Harvey-Hills, I have allowed the affidavit to be admitted upon the basis that if it led to any request for an adjournment I would deal with the adjournment application on its merits. No such application however was made. In the affidavit, the Comptroller indicates that the request received from the Australian Competent Authority identified Ms Woods, the deceased and Libertarian as the persons under examination. The affidavit also indicates that when the later parts of the request were examined, it seemed to be clear that "the Victoria Woods Trust in Jersey was also under examination or investigation". The Comptroller accordingly treated as "taxpayers" for the purposes of the notice:
(i) Ms Woods;
(ii) The executor of the estate of Mr Woods or anyone administrating that [sic];
(iv) The trustees or any other fiduciary person involved with the Jersey trust known as the Victoria Woods Trust.
30. It seems to me to be possible, but distinctly confusing, for a notice to be issued by the first respondent under both Regulations 2 and 3 in the sense that the tax information may relate both to the recipient of the notice as a relevant taxpayer and to him as a third party holding tax information in relation to a different taxpayer. However, if the first respondent were to issue a notice of that kind and then were to include a prohibition within it, it is clear that the prohibition can only relate to communication with persons other than the taxpayer recipient of the notice.
31. It is in my judgment immediately apparent that the prohibition cannot stand as it is drafted. It purportedly applies to disclosure to "anyone administering or dealing with the estate of Mr Alan Henry Woods (which includes, without limitation, the international executor of the estate of Mr Woods...)". In this case, the applicant is himself administering or dealing with the estate of Mr Woods. He clearly cannot be prohibited from informing himself about the notice which has been issued. Furthermore, he remains the attorney of the International Executor in the administration of the estate in Jersey. I accept the submission that one cannot divide the constituent from his specially appointed attorney in circumstances where the investigation is into the estate's liability for taxes. I can see that it might be different if there were a suggestion that the International Executor was personally under investigation. However the affidavit of the Comptroller confirms that the request identifies the deceased as the person under investigation. Accordingly the International Executor does not fall into the definition of "taxpayer" and if that is right, then the Comptroller was not entitled to issue a prohibition to the applicant in respect of any discussion with the International Executor.
32. That conclusion seems to me to be consistent with the general law as well. If the International Executor was thought to have done something wrong personally so as to be under investigation in his own name, then it would be entirely right that a notice could be served on a service provider in Jersey - whether such person be his lawyer (subject to any points of privilege), accountant, banker or indeed even attorney. In all those cases the recipient of a notice might well have information relevant to the affairs of the person under investigation. Where, however, the investigation concerns the activities of the deceased, the identities of the International Executor and his attorney in the present case are indivisible. The applicant has no capacity other than as attorney of the International Executor. The Act of Court granting probate to him states expressly that it is in that capacity that probate was issued.
33. For these reasons I do not think that Clause 4 of the Notice can stand insofar as there is a prohibition against communication with the International Executor, or with anyone administering or dealing with the estate of the deceased. Thus, in accordance with Regulation 3(7), the Court consents to the applicant disclosing the third party notice and any information relating to it to the International Executor and/or to anyone administering or dealing with the estate of the deceased. I take the view that because Regulation 3(7) is framed as it is, the Court has, in effect, power to sever from Clause 4 of the Notice those parts which are invalid by giving consent as appropriate.
34. I now consider the effect of the prohibition in relation to the trustee of the Victoria Woods Trust. The notice prohibits communication between the applicant and any trustee or other person administering that trust and at one level it is irrelevant in my view for the present purposes that the applicant was himself at one stage a trustee of the trust before resigning in favour of a Guernsey trust company. However the information provided by the first respondent shows that the trustees of the trust are not identified by the Australian Competent Authority as the persons under investigation. It seems to me therefore that they cannot be treated as "the taxpayer" for the purposes of the request for tax information, and in those circumstances, it is not possible for the first respondent to prohibit communication between the applicant and someone who is not a taxpayer.
35. For these reasons, I reach the conclusion that that part of Clause 4 of the Notice which prohibits communication with any trustee or other person administering the trust known as the Victoria Woods Trust is also invalid, and the Court consents to the applicant giving information about the notice to any such trustee or other person administering the trust.
36. As a separate and independent reason, I am supported in the view I have reached in relation to this part of the prohibition by the following analysis in relation to the reasons given by the Australian Competent Authority, namely that disclosure may prejudice the investigation of possible fraudulent activity by the taxpayers.
37. At paragraph 66 of the Court's judgment in APEF Management Company 5 Limited, which, unlike the present case, involved an investigation into civil rather than possible criminal tax matters, Clyde-Smith, Commissioner expressed himself in this way:-
"(i) The Deputy Comptroller is entitled and bound to have regard to the totality of the information made available to him and its sources or lack of sources;
(ii) There is no requirement that such information must be verified by affidavit or otherwise take any particular form;
(iii) For the purposes of deciding whether to act on a request the Deputy Comptroller is at liberty to ask the requesting state authorities for clarification or for further information but he is under no obligation to do so; nor is he under any obligation to require the production of evidence in support of the facts of which he is informed in order to verify them for himself;
(iv) Where the Comptroller is faced with conflicting assertions as between the requesting authority and those affected by the request, it is not for him to reach any final conclusion on where the truth lies; his role is not to act as final adjudicator on these issues which may or may not in the fullness of time fall for adjudication by courts but simply to decide having regard to the material before him, whether it is reasonable to respond to the request."
In my judgment these principles, broadly speaking, still apply, notwithstanding the amendments to the Regulations in 2013.
38. As to those amendments, Advocate White has not gone so far as to contend that, by the removal of any reference to it being reasonable to respond to a request concerning a taxpayer, the competent authority for Jersey does not have to behave reasonably. Of course the Comptroller does, and if he does not act reasonably then on ordinary principles of judicial review, the Court will strike down his actions.
39. Under Regulation 3(4) the first respondent is under an obligation to supply a copy of the third party notice to the taxpayer, unless Regulation 3(5) applies. In my judgment the first respondent does have a discretion to exercise even if a request is put to him under Regulation 3(5)(e). Under sub-paragraphs (c) and (d), the competent authority for Jersey must be satisfied that the grounds exist for the suspension of his obligation to inform the taxpayer pursuant to Regulation 3(4). The fact that sub-paragraph (e) does not contain that language does not mean that the competent authority for Jersey has no discretion to exercise when the third country makes a request that information be not disclosed to the taxpayer. It makes no sense to require the local competent authority but not a requesting competent authority to be satisfied that the ground for prohibition is established. I think the effect is that the first respondent must consider if a prohibition should be ordered, and this amounts to a discretion conferred upon him. If there is a discretion to exercise, the first respondent is not under an obligation to give effect to the third country's request, simply because the request is made, and it is a matter for the first respondent to consider the extent to which he should make enquiry before he exercises that discretion. It may well be that the first respondent, acting reasonably, would make a more extensive enquiry in relation to a civil tax matter than in relation to a criminal tax matter but even in the latter case one would expect him to do enough to satisfy himself that there was a bona fide criminal investigation.
40. Advocate Harvey-Hills contended that the dicta of Willis J in H Lavender v Minister of Housing  3 All ER 871 at pages 879D to 880D supported the view that the Comptroller would not be able in effect to delegate the exercise of his discretion to a foreign country. I agree with that contention, subject to these comments. In my judgment, the first respondent has a discretion of his own to exercise, which he must do in accordance with the usual principles; but the Regulations make it plain that the views of the requesting state, providing they fall within the parameters of sub-paragraph (5)(e) can be sufficient if the first respondent reasonably so decides. In that context, it would be critical that the first respondent satisfies himself that the request for non-disclosure is internally consistent with the rest of the application put to him. In the instant case, the reasons for non-disclosure as delivered by the Australian Competent Authority appear to relate to a fear that as the investigation involved possible fraudulent activities by the taxpayer, notification might prejudice that investigation. Clearly, if the balance of the application for assistance showed that the investigation was a civil case and not a criminal case, the strength of that objection to disclosure would seem to be rather unconvincing. It is in that sort of area that the Comptroller acting reasonably should satisfy himself that the foreign state's request is reasonable. I note there is no evidence of inconsistency before me in this case. In saying that, I accept that given that the request has not been disclosed, and usually will not be disclosed, it is likely to be difficult for an applicant to demonstrate inconsistency, although it may be that in particular cases it is possible to do so.
41. Relying upon Secretary of State for Education and Science v Tameside Metropolitan Borough Council  1014 at page 1064E - 1065B, Advocate Harvey-Hills contended that it was the obligation of the first respondent to gather in all the relevant facts before deciding how to exercise his discretion. It was contended in different respects that this was particularly important given the fundamental rights which were interfered with by orders for the disclosure of tax information without notification to those who might be affected by it. For my part, if I may respectfully say so, I consider the principles there enunciated by Lord Diplock to be entirely appropriate for most administrative decisions. It is not clear that they are necessarily appropriate in connection with the investigation of crime. Certainly the cases in this Court and in our Court of Appeal in relation to the exercise of powers by the Attorney General on a request for mutual legal assistance in criminal matters show that there may be limits on the obligation of the administrative authority - in that case the Attorney General - to gather all kinds of information and test the material which is put before him by the requesting state. Here, according to the information put before me by the first respondent, there is at least a probability that the Australian Competent Authority is investigating some criminal activity, because there is reference made to fraud. In those cases it was not at all obvious that a person suspected of fraud should be able to be told that he is under investigation and should be entitled to receive the fruits, whether in whole or in part, of the state of the investigation to that date. Advocate Harvey-Hills submits that there are convention rights engaged by conferring upon the person whose tax information is in question, which permits such a person to challenge by way of judicial review the handing over of the information in question to the requesting authority - thus it is he argues that Article 6 contains the right to a fair trial of his challenge to the requisite notice. On the other hand, it seems to me to be clear that the law enforcement authorities must be entitled to investigate criminal activity without being constrained in this way, and that it cannot have been intended, by reference in Regulation 14 to a right of judicial review, to afford suspects under a criminal investigation the opportunity to have access to the then current state of affairs in relation to that investigation.
42. The first respondent in his supplemental submissions contends that a reference to the Attorney's powers under the Criminal Justice (International Co-operation)(Jersey) Law 2001 ("the 2001 Law") is irrelevant because the present case does not concern an application under that law. In my judgment such a contention is only partly right. Of course this application must be assessed under the Regulations, pursuant to which it is made, but where the sub-stratum of both the 2001 Law and an application under the Regulations is the same, there appears to me to be an inevitable conclusion that one takes the same approach in terms of human rights. If it is the case, as it is, that a person is not entitled to know that he is under investigation for having committed a criminal offence where to tell him would put the investigation at risk, it matters not whether the investigation is domestic, or arises out of a request to the Attorney under the 2001 Law, or out of a request to the Jersey Competent Authority under the Regulations. In each of those cases, the non-disclosure of the information that an investigation is taking place is a proportionate invasion of a right available to the suspect under the Convention because it occurs with a view to preventing or reducing crime or bringing a wrongdoer to justice.
43. In this case, it is very hard to see how any criminal investigation could relate to the estate of the deceased. By definition, he is dead, and his estate will not be criminally liable for his actions.
44. The applicant deposes in his affidavit that in his capacity as executor of the Jersey estate, he brought proceedings in the Royal Court in January 2010 for the variation of the will of the deceased under Article 25 of the Probate (Jersey) Law 1998. The variation resulted in a number of shares in Libertarian being gifted to him as trustee of a trust known as the Victoria Woods Trust. The application was supported by privileged advice as to the Australian tax law consequences of the variation of the deceased's will and it is said to us that Victoria Woods also took privileged legal advice in Australia as to the tax consequences there of the variation proceedings.
45. In the circumstances it would be very surprising if there were to be any criminal liability on the part of those trustees who took Australian tax law advice, unless of course the tax law advice was to the effect that the proposed arrangement was illegal. There is absolutely no evidence that that might be the case, and we do not think for one moment that it is, but it must be said that if it were to be the case, this would be a criticism to be made not only of the present trustees of the Victoria Woods Trust but also of the applicant. The first respondent, acting reasonably when assessing the request by the Australian Competent Authority would be bound to put the question back to that authority as to how the disclosure of information in relation to the notice could seriously be considered as possibly prejudicing the investigation when the person at the heart of the arrangements, namely the applicant, was the person who had received the notice in the first place.
46. These considerations are additional reasons why in my judgment it would be right to give consent to the applicant to inform the trustees of the Victoria Woods Trust and the International Executor of the contents of the Notice.
47. I turn next to the prohibition in so far as it concerns Ms Victoria Woods, who is a resident of Melbourne, Australia. In the light of the applicant's affidavit before us, it would seem to me to be somewhat unlikely that any criminal liability of Ms Woods will have arisen. There is nothing secretive about the variation proceedings which took place in the Royal Court, sitting in public on a Friday afternoon. Ms Woods apparently had her own legal advice. The applicant had his legal advice. The suggestion that the two of them, acting on Australian legal advice as to the tax law consequences of the variation of the deceased's will, presenting a scheme in public in the Royal Court in Jersey on 15th January and subsequently appearing on 20th January when again the Court sat in public would be found to have acted criminally seems unlikely to put it mildly.
48. As far as Libertarian is concerned, the only involvement, so it seems to us from the papers we have seen, is that it was the shares in Libertarian which were the subject of the disposition into trust, and how the company could be found to be criminally liable when its shares were so dealt with seems to me also to be stretching the boundaries of one's imagination.
49. Nonetheless, right at the margins, I am prepared to accept that the Comptroller, acting reasonably, might just reach the conclusion that the Competent Authority for Australia has some basis for thinking that a criminal tax investigation might be prejudiced if Ms Woods or Libertarian were to be informed of a prohibition. For that reason I am not prepared on this application for interim relief to give consent for disclosure to Ms Woods or to Libertarian at this stage. The applicant shall have liberty to apply at a later stage, should circumstances change.
50. There is one further matter which I should address.
51. Regulation 14(2) seeks to preclude judicial review to determine the legality of the first respondent's actions in relation to a prohibition on a ground mentioned in Regulation 3(5). On the face of it, that seems to run in conflict with the provisions under Regulation 3(7). Amongst the arguments advanced on behalf of the applicant for interim relief is included an assertion that Regulation 14(2) should itself be struck down as unlawful. It is not necessary to reach a conclusion on that submission for the purposes of dealing with this interim relief application insofar as disclosure to the International Executor and to the trustees of the Victoria Woods Trust is concerned, because the prohibition has been set aside on other grounds. For my part, I accept the reasoning which is set out in the decision handed down on 20th November, 2014, by Sir Michael Birt, Bailiff, in the matter of an application for judicial review by Berge Gerdt Larsen and others when the Bailiff concluded that interim relief might be granted notwithstanding the express terms of the Regulations. Similarly, I see no reason why in principle it would not be possible for a court to strike down on an interim application Regulation 14(2), which is under attack in this case. However I do not think it is appropriate to do so because under Regulation 3(7) the Court has power in any event to give consent to a disclosure notwithstanding the prohibition which is issued. It is therefore not necessary on an interim application to consider the vires of the Regulation at large, and that is a matter best dealt with at the substantive judicial review hearing.
52. Finally the applicant asserts that he must be given information as to whether any similar notices have been issued to Libertarian or others. The first respondent has apparently refused to give that information to him. In my judgment, it is not necessarily illogical for the requesting state to seek a prohibition and at the same time seek the assistance of the requested state to serve a notice on more than one party. It might well be relevant in the context of a criminal investigation to gather information contemporaneously from more than one source and at the same time to do so by requiring that the two recipients of those notices do not discuss the terms of the notice with each other.
53. I have not been addressed on this matter in any detail, and I therefore make no orders in that connection. It is a matter for the applicant to take out such summons, if he is so advised, as he thinks fit, but the application made in writing to the Bailiff's Judicial Secretary for my consideration does not seem on the face of it to be well founded.
54. Finally, in my judgment, this application raises matters of important public interest, and the judgment will therefore be published in the usual way.
Taxation (Exchange of Information with Third Countries) (Jersey) Regulations 2008.
European Convention on Human Rights 2000.
Housing Committee v Phantesie Investments Limited [1985-86] JLR 96.
Human Rights (Jersey) Law 2000.
Volaw Trust and Corporate Services Limited and Larsen v Comptroller of Taxes  (2) JLR 499.
H Lavender v Minister of Housing  3 All ER 871.
Secretary of State for Education and Science v Tameside Metropolitan Borough Council  1014 at page 1064E - 1065B.
Criminal Justice (International Co-operation)(Jersey) Law 2001.
Probate (Jersey) Law 1998.