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Privy Council rules on application of privilege against self-incrimination to compulsory notices to produce documents

20/06/19

The Privy Council has given judgment in Volaw Trust and Corporate Services Limited v Comptroller of Taxes, in which it has clarified the potential application of the privilege against self-incrimination under Article 6 of the ECHR. 

The Appellant company, Volaw, had been served with notices under Jersey law by the Jersey taxation and law enforcement authorities.  Those notices required Volaw to produce documents in connection with criminal investigations by the Jersey and Norwegian authorities into companies for which Volaw provided corporate services, and into Volaw itself.

Volaw challenged the notices before the Jersey courts, and contended that the issuing of the notices infringed its privilege against self-incrimination, as protected by Article 6 and under Jersey customary law.  At first instance and in the Jersey Court of Appeal, these arguments were rejected.  The courts, citing the Strasbourg court’s decision in Saunders v UK, and English authorities such as C plc v P, held that the privilege against self-incrimination does not apply where a person is required to produce a pre-existing document. 

The Privy Council held that approach to be wrong.  It was clear from the Strasbourg case-law since Saunders that the privilege is engaged where a person is required to produce a pre-existing document, and that a more nuanced approach than that applied by the Jersey courts and the earlier English authorities was called for.  Where a person who is the subject of a criminal investigation is required to produce a pre-existing document under pain of punishment Article 6 may be breached if the requirement involves undue coercion or oppression; for example, this may arise where a person is prosecuted and subjected to significant penalties for refusing to produce a document.  Other relevant factors include the public interest in the investigation.  Not every compulsory demand to produce documents in a criminal investigation will, however, breach the privilege under Article 6.

In the result, Volaw had not been prosecuted or convicted for failure to comply with the notices and it could not be said to have been subject to undue coercion or oppression.  The Privy Council held that taking into account this and other factors, Volaw’s Article 6 rights had not been infringed. 

Nevertheless the Privy Council’s judgment represents a significant departure from the approach previously taken by the English courts and will have potentially far-reaching consequences for criminal and quasi-criminal investigations in a broad range of situations.

A copy of the Board’s judgment is available here.

Paul Bowen QC and Hugo Leith (instructed by Voisin Law and by Simons Muirhead & Burton LLP) appeared for the Volaw parties.