Law Report: Self-incrimination rule upheld: United Norwest Co-operatives Ltd v Johnstone and others - Court of Appeal (Lord Justice Dillon, Lord Justice Stuart-Smith and Lord Justice Hobhouse), 11 February 1994

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In the absence of statutory provisions, parties in civil proceedings alleged to have committed a criminal offence such as fraudulent conspiracy are not to be deprived of the traditional privilege against self-incrimination.

The Court of Appeal (Lord Justice Stuart-Smith dissenting) allowed an appeal by the second, seventh and eighth defendants from parts of an order that the defendants disclose certain information.

The plaintiff claimed damages against the defendants, alleging they were engaged in a fraudulent conspiracy. The plaintiff obtained an order that the defendants serve an affidavit exhibiting statements disclosing information about bank accounts, assets and documents relating to the ninth defendant. The order contained a provision designed to provide a safeguard against self-incrimination, namely an injunction restraining the plaintiff and its solicitors from disclosing any information obtained to any person not a party to the action, and in particular to any police force or prosecuting authority without leave of the court.

Alan Newman QC and David Wilby (Simon Wakefield & Co; Coates & Co, Leeds) for the defendants; Stanley Brodie QC and Monica Carss-Frisk (Mishcon de Reya) for the plaintiff.

LORD JUSTICE DILLON said that there had been many cases recently in which the courts had held that particular statutory provisions authorising the questioning of people by Department of Trade inspectors, office-holders under the Insolvency Act and others had impliedly deprived the persons being questioned of the traditional right to refuse to answer questions on the ground of self-incrimination. The present case was not in that field; the order was not made under any such statutory provision.

Where there was no such statutory provision, the traditional view had until recently been that the court had a duty to give effect to any person's long-recognised right to refuse to anwer questions if his answer might tend to incriminate him. In A T & T Istel Ltd v Tully (1993) AC 45, the House of Lords upheld an order for disclosure which was subject to a condition, to which the Crown Prosecution Service raised no objection, that no disclosure should be used as evidence in the prosecution of an offence alleged to have been committed by the person required to make that disclosure.

In the present case, the order endeavoured to ensure by injunctions that whatever material was disclosed never came to the knowledge of the prosecuting authorities. It did not follow that the court would withhold its assistance to the prosecuting authority to obtain information by the exercise of statutory powers when there had been no assurance given by any prosecuting authority that it would not use the information disclosed for the purposes of a prosecution, and the court order was made without even notice to, let alone the consent of, the prosecuting authority. The CPS could not be bound against its wishes.

Persons like the defendants who were charged in civil proceedings with having committed a criminal offence - fraudulent conspiracy - were not to be deprived, in the absence of statutory provision, of the traditional privilege against self-incrimination. Certain matters in the order could be disclosed without any risk of self incrimination, but the defendants were entitled to rely on the privilege against self-incrimination in relation to the other matters in the order.

LORD JUSTICE STUART-SMITH, dissenting, said that the CPS and SFO could not obtain access to the disclosed material. Any court order for disclosure would be judicially reviewable. The judge's order should be upheld, with a similar injunction against the defendants' solicitors.

LORD JUSTICE HOBHOUSE, agreeing with Lord Justice Dillon, said the civil courts, save for judicial review and special jurisdictions, had no power to fetter the powers of the criminal courts or to control directly or indirectly their proceedings.