Article 6 and compulsory production orders: Volaw Trust & Corporate Services Ltd and its Directors & Others v The Office of the Comptroller of Taxes & Another (Jersey)

Article 6 and compulsory production orders: Volaw Trust and Corporate Services Ltd and its Directors and others v The Office of the Comptroller of Taxes and another (Jersey)[1]

Handed down just before the start of a summer sporting smorgasbord which is still ongoing, some may have missed this important ruling on the application of the privilege against self-incrimination to documents existing independently of the will of the subject. This is every bit as exciting as Ben Stokes at the crease.[2] 

The background to this case was that a Jersey company was required to produce certain documents under pain of criminal sanction. Its judicial review citing the privilege against self-incrimination failed at first instance and on appeal in Jersey. It was appealed to the Privy Council.

The decision will have a wide effect in English and ECHR law.

The Privy Council considered the rule in Saunders v UK[3], and subsequent English authorities such as C plc v P[4], namely that Article 6 did not apply to documents which have, or material which has, an existence independent of the will of the subject. It was noted that these authorities appeared inconsistent with some ECHR and domestic ones.

Drawing upon Ibrahim v UK[5] the Privy Council rejected the “too categorically stated” approach by the majority in C plc v P and found that the compulsory production of real evidence can engage Article 6. Further, the Privy Council found that, as in Funke v France[6], Article 6 can be violated even in the absence of a criminal charge, by means of prosecution for a refusal to produce incriminating evidence under threat of criminal penalty at the pre-trial investigation stage.

However, there are differences between statements obtained under compulsion and real evidence. The reliability of real evidence is not affected by compulsion, and therefore a level of oppressiveness will be required for Article 6 to be breached. Ultimately, Article 6 was not violated in the instant case. The Privy Council reiterated the following factors, drawn from Jalloh v Germany[7], as of importance:

• The nature and degree of compulsion used to obtain the evidence: Volaw were only at risk of a fine;
• The weight of the public interest in the investigation and punishment of the offence at issue: there was an important public interest in effective international cooperation in the investigation of possible tax evasion and in maintaining the integrity of licensed providers of financial services;
• The existence of any relevant safeguards in the procedure: the court in Jersey and Norway (the two potential trial jurisdictions) both had the power to exclude evidence, and both had ratified the ECHR; and
• The use to which any material so obtained is put. The material had not yet been produced and it was impossible to say how it might be used in any criminal trial. The prosecution would still need to prove dishonest intent and the likelihood of unreliable evidence being produced under compulsion was low.

It is (iii) and (iv), combined with the Privy Council’s declining to overrule R v Hertfordshire CC ex p. Green Environmental Industries Ltd[8], which mean that although the door is now in theory open to challenging compulsory evidence-gathering powers using Article 6, a flurry of successful objections is unlikely. It is where such evidence is sought to be adduced at trial that  Volaw Trust will become significant. It certainly brings some welcome clarity and does an admirable job of attempting to reconcile some fairly irreconcilable ECHR and domestic authorities. As a statement of principle it was an important, if ultimately pyrrhic, victory for Volaw’s legal team.

[1] [2019] UKPC 29

[2] Whether the author loves the ECHR or hates cricket will be left for the reader to judge.

[3] (1996) 23 E.H.R.R. 313

[4] [2007] EWCA Civ 493

[5] 13 September 2016, 50541/08, 50571/08, 50573/08, 40531/09

[6] (1993) 16 E.H.R.R. 297

[7] (2007) 44 E.H.R.R. 32

[8] [2000] 2 AC 412