“Volaw Trust” - A strengthening of the privilege against self incrimination from requests for pre-existing documents?

Does the judgment of the Privy Council in "Volaw Trust" represent a strengthening of the privilege against self-incrimination in relation to requests for pre existing documents?

The combined appeals of (1) Volaw Trust and Corporate Services Ltd and others v the Comptroller of Taxes and another and (2) Volaw Trust and Corporate Services Ltd and others v HM Attorney General for Jersey [2019] UKPC 29 provide interesting guidance on the approach to be taken by the courts in examining whether requirements for the production of pre-existing documents may infringe Article 6 of the European Convention on Human Rights (“Article 6”). Prior to this judgment it had been presumed that legal requirements to produce material existing independently of the will of the accused would not engage Article 6. The Board’s judgment suggests a more nuanced approach is required. 

Background

The background to the judgment may be briefly summarised as follows. The tax authorities in Jersey issued statutory notices (i) on behalf of the Norwegian tax authorities under a form of mutual legal assistance and (ii) on behalf of the Jersey authorities themselves. They were issued to a trust company in Jersey (“Volaw”) about the corporate arrangements relating to a number of companies.  Those companies were understood to be owned by an individual who had been convicted and sentenced to imprisonment in Norway for tax evasion. Although the precise statutory framework for each notice varied, the framework imposed a legal requirement to produce material to the authorities and provided sanctions for non-compliance.

The decisions to issue the notices were judicially-reviewed before the courts in Jersey. There were separate proceedings for each notice and in each case the court at first instance held that there was no infringement of the privilege against self-incrimination under Article 6 in relation to requests for pre-existing documents. For reasons of local procedure one of the two cases went to the local Court of Appeal (where the first instance decision was upheld). Both cases were subsequently appealed to the Privy Council.

The judgment

Six grounds of appeal were advanced before the Privy Council (see paragraph [36]). The first of these is likely to be of widest interest outside of Jersey: this was whether the issue of the notices was consistent with Article 6.

Lord Reed gave judgment on behalf of the Board comprised of six current Justices of the Supreme Court in addition to the now-retired Lord Sumption. Between paragraphs [37] and [61] he considered the wide-ranging domestic and European case law in this area. This included the case of Saunders (Saunders v UK (1996) 23 EHRR 313), which had held that a determining factor was whether the material sought had “an existence independent of the will of the suspect”. This case was therefore relatively favourable to the investigatory authorities in relation to pre-existing documents because requirements to produce them would never breach Article 6. The lower courts in Jersey had followed this approach. It was noted that this case was difficult to reconcile with Funke (Funke v France (1993) 16 EHRR 297 ) where requirements to produce pre-existing documents had been held to infringe the privilege against self-incrimination and breach Article 6.   

The approach outlined in the Board’s judgement is more-nuanced and attempts to reconcile these strands of case law. The following factors were considered in assessing whether Article 6 was engaged in respect of a request for pre-existing document (see paragraphs [62]-[70]):

The nature and degree of compulsion used. The Board noted that there was no oppressive conduct by the authorities in the present case nor physical or psychological pressure breaching Article 3 ECHR (protection inhuman or degrading treatment).

The weight of the public interest in respect of the investigation and punishment of the offences in question. The fact that serious or complex fraud was alleged in the case carried significant weight as well as the integrity of financial services providers. This had however to be balanced against not depriving defendants of their right to a fair trial;

The use to which the documents would be put, together with any safeguards. It was noted that the requirements were issued at the pre-trial stage and there was no reason for the Jersey courts now to pre-judge what might happen in any subsequent trial either in Jersey or Norway.

The significance of the documents in the subsequent prosecution. The fact that the production of the documents was not the whole matter when it came to any subsequent prosecution. The risk of unreliable confessions, the avoidance of which is a key rationale for the privilege against self-incrimination, was also low as the prosecution would still, among other things, need to prove dishonest intent in order for a guilty verdict of fraud to be returned.

Taking these factors into account the Board concluded Article 6 was not engaged in the present circumstances (see paragraph [70]). The full judgment is available by clicking here.

Comment

Although not binding formally on the English courts, this judgment is likely to be highly persuasive given the make-up of the Board. While the Board ultimately reached the same conclusion on the facts as the lower courts in Jersey, the analytical framework set out in the judgement (as outlined above) may give rise to greater scope for disputes about the lawfulness of requests for pre-existing documents in the context of criminal and certain regulatory investigations. The process of applying this framework seems likely to lead to more work for all concerned, but the weighting given to each of the factors in this case – which could apply equally in many other regulatory contexts – suggests that circumstances where a request for pre-existing document infringes Article 6 are likely to be few and far between. 

Further information

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