P. Trant, T. Trant and S. Trant v Attorney General, Michel and Gallichan (Née Rabet)

JurisdictionJersey
CourtCourt of Appeal
JudgeBeloff, Smith and Jones, JJ.A.
Judgment Date22 March 2007
Date22 March 2007
COURT OF APPEAL
Beloff, Smith and Jones, JJ.A.

P.C. Sinel for the appellants;

A.J. Belhomme, Crown Advocate, for the Attorney General.

Cases cited:

(1) Accident Ins. Mutual Holdings Ltd. v. McFadden (1993), 31 NSWLR 412, considered.

(2) British Rys. Bd. v. Herrington, [1972] A.C. 877; [1972] 1 All E.R. 749, referred to.

(3) Cole v. Jersey Post, 2004 JLR N [23], referred to.

(4) Den Norske Bank A.S.A. v. Antonatos, [1999] Q.B. 271; [1998] 3 All E.R. 74, considered.

(5) Durant Intl. Corp. v. Att. Gen., 2006 JLR 112, followed.

(6) Esteem Settlement, In re, 2000 JLR 119, referred to.

(7) Glazebrook v. Housing Cttee., 2002 JLR N [43], referred to.

(8) Imperial Tobacco Ltd. v. Att.-Gen., [1981] A.C. 718; [1980] 1 All E.R. 866, referred to.

(9) Le Cocq v. Gillespie, 1991 JLR N-5, referred to.

(10) Marcel v. Metropolitan Police Commr., [1992] Ch. 225; [1992] 1 All E.R. 72, referred to.

(11) Sharma v. Brown-Antoine, [2007] 1 W.L.R. 780; [2006] UKPC 57, referred to.

(12) Taylor v. Director of Serious Fraud Office, [1999] 2 A.C. 177; [1998] 4 All E.R. 801, referred to.

Legislation construed:

Royal Court Rules 2004 (Revised Edition, ch.07.770.72, 2007 ed.), r.6/13(1):

"The Court may at any stage of the proceedings order to be struck out or amended any claim or pleading, or anything in any claim or pleading, on the ground that—

(a) it discloses no reasonable cause of action or defence, as the case may be;

(b) it is scandalous, frivolous or vexatious;

. . .

(d) it is otherwise an abuse of the process of the Court …"

r.16/1: The relevant terms of this rule are set out at para. 34.

Texts cited:

May & Powles, Criminal Evidence, 5th ed., para. 11-01, at 312 (2004).

Phipson on Evidence, 16th ed., para. 24-50, at 674 (2005).

Evidence—privilege—privilege against self-incrimination—witness not required to answer question in criminal proceedings if would incriminate himself, i.e. expose him to criminal charge, penalty or forfeiture with real and appreciable risk of prosecution—to be determined by trial court, normally after witness called and asked specific questions—exceptionally, may be determined by that court immediately beforehand

The appellants, who had been summonsed to give evidence in a criminal trial, sought declarations inter alia that they were entitled to claim privilege against self-incrimination and that their witness statements had been obtained unlawfully.

The second and third respondents were charged in Jersey with various offences of money laundering, including assisting the second and third appellants to retain the proceeds of their criminal conduct—namely cheating the Inland Revenue or theft, allegedly committed in 2001—contrary to art. 32(1)(a) of the Proceeds of Crime (Jersey) Law 1999. The Attorney General requested the appellants, who lived in England, to give evidence in the criminal proceedings. The second and third appellants had, however, settled matters with the Inland Revenue in 2002, under its Hansard procedure, by making full and frank disclosure and paying the necessary tax and penalties.

At the Attorney General's request, the Serious Fraud Office required the second and third appellants to attend for an interview in which they were legally obliged to answer questions ("the SFO interviews"). The Attorney General was provided with relevant documents, including the appellants' Hansard interviews, but they were not informed of the disclosure at that time. The second and third appellants were then further interviewed, when they were asked about possible inconsistencies between the evidence they had given in the Hansard and SFO interviews. They also agreed and signed witness statements based on the SFO interviews. They claimed that they were wrongly led to believe that they were obliged to attend the further interview, which the Attorney General denied.

The appellants refused to travel to Jersey to give evidence in the criminal proceedings and the Attorney General requested assistance from the English authorities under art. 4 of the Criminal Justice (International Co-operation) (Jersey) Law 2000. The Southampton Magistrates' Court issued summonses requiring the appellants to attend that court to give evidence in the Jersey trial by live television link.

The appellants brought an Order of Justice seeking declarations, orders and injunctions inter alia that (a) the taking of the further witness statements from them had been unlawful because of the Attorney General's positive misrepresentation, and his disclosure to others of those statements together with the Hansard and SFO interviews was a misuse of private information, breach of confidence or abuse of power; (b) the Attorney General had wrongfully procured the issue of summonses to the appellants to give evidence before the Southampton Magistrates' Court when it was apparent that they could (or would) give no evidence; and (c) the second and third appellants were entitled to claim privilege against self-incrimination, and therefore refuse to give evidence, and that claim was validly made and upheld. The Attorney General sought the striking out of the Order of Justice. He adduced evidence to support his application, whereas the appellants relied solely on the assertions in their Order of Justice.

The Royal Court (Birt, Deputy Bailiff and Jurats Le Breton and Clapham) allowed the Attorney General's application in part and struck out all but one of the appellants' claims (in proceedings reported at 2006 JLR 531). It did not strike out the claim that their further witness statements had been obtained by unlawful or improper means and that the Attorney General's disclosure to the defendants in the criminal proceedings of those statements together with other evidence had been a misuse of private information, breach of confidence or abuse of power. The court considered that the appellants would have been well advised to have adduced evidence to support their claim, and that the Attorney General's evidence showed a number of the assertions in the Order of Justice to be groundless, but held that the claim was nevertheless arguable. The court struck out the appellants' claim for a declaration that they had validly claimed privilege against self-incrimination. It held that such a claim could only properly be made before the court of trial, when they were called to give evidence.

The appellants sought leave to appeal, submitting that the following issues were fit to go to trial: (a) the Attorney General had obtained (and thereafter used) confidential material wrongfully, i.e. by misleading them to believe they were compelled to make the further witness statements, whereas they were not; (b) they were entitled at this juncture to assert their privilege against self-incrimination; and (c) the Attorney General had wrongfully procured the issue of the summonses for them to give evidence before the Southampton Magistrates' Court for the purposes of the criminal proceedings. The appellants did not adduce any evidence to support their factual allegations.

The Attorney General sought to cross-appeal against the Royal Court's decision to allow the claim alleging misuse of confidential information to proceed to trial.

Held, refusing leave to appeal and allowing the Attorney General's cross-appeal:

(1) The appellants would not be granted leave to appeal against the Royal Court's striking out of the majority of their Order of Justice and, furthermore, the Attorney General's cross-appeal would be allowed and the remaining allegation would also be struck out. A claim would only be struck out if it was plain and obvious that it could not succeed. Provided that a statement of claim or particulars disclosed some cause of action or raised some question fit to be decided by a judge, jurats or jury, the mere fact that a case was weak was not a ground for striking it out. Particular caution was required in a developing field of law. Although evidence was not admissible on an application to strike out under r.6/13(1)(a) of the Royal Court Rules 2004, i.e. that there was no reasonable cause of action, and the facts given in the Order of Justice would be taken as correct, it was admissible and could be considered on an application under r.6/13(1)(b), that a claim was scandalous, frivolous or vexatious; or under (d), that it was an abuse of the process of the court; or under the court's inherent jurisdiction. As the present case was not brought solely under r.6/13(1)(a), evidence was admissible and the court was entitled to take account of the state of the evidence when considering whether to strike out under paras. (b) or (d), or its inherent jurisdiction. If, as in this case, only one party adduced evidence, unless it was manifestly implausible, a court would have little if any choice but to accept it. If a party chose not to adduce evidence when able to do so (especially if he had a case to meet), adverse inferences could be drawn against him. The Royal Court had not identified in what way (if at all) the evidence adduced by the Attorney General fell short of answering the appellants' allegation that he obtained their witness statements by misrepresentation. The court had erred in speculating that the appellants might be able to adduce evidence at trial to support their (so far, wholly unsupported) allegations. It should have evaluated the state of the evidence as it stood. There was no basis, on what was before the court, to conclude that the appellants' claim that they had been misled into providing their witness statements would succeed and it would therefore be struck out ( paras. 22-23; paras. 29-32).

(2) The privilege against self-incrimination was recognized in Jersey in the same way as in English law. Thus, the second and third appellants would not be bound to answer any question in the criminal proceedings if, in the opinion of the court, the answer would incriminate them, i.e. have a tendency...

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