Re Charlton

JurisdictionJersey
CourtRoyal Court
JudgeHamon, Commr.:
Judgment Date19 November 1993
Date19 November 1993
ROYAL COURT
Hamon, Commr.:

J.G.P. Wheeler for the applicants;

C.E. Whelan, Crown Advocate, for the Attorney General as amicus curiae.

Cases cited:

(1) Att. Gen. (New Zealand) v. Ortiz, [1984] A.C. 1; [1983] 2 All E.R. 93; [1983] 2 Lloyd's Rep. 265; (1983), 127 Sol. Jo. 307, dictum of Lord Denning, M.R. considered.

(2) Chamberlain, In re, ex p. Reading Crown Court, Royal Ct., December 20th, 1989, unreported, considered.

(3) Gross, Re, ex p. Treasury Solicitor, [1968] 3 All E.R. 804; sub nom. In re Extradition Act 1870, ex p. Treasury Solicitor, [1969] 1 W.L.R. 12; (1968), 112 Sol. Jo. 823, considered.

(4) India (Govt.) v. Taylor, [1955] A.C. 491; [1955] 1 All E.R. 292; (1955), 48 R. & I.T. 98; 99 Sol. Jo. 94; sub nom. In re Delhi Elec. Supply & Traction Co. Ltd., [1955] T.R. 9; (1955), 34 A.T.C. 10, not followed.

(5) Norway (State) Application (Nos. 1 & 2), In re, [1990] 1 A.C. 723; [1989] 1 All E.R. 745; (1989), 133 Sol. Jo. 290.

(6) R. v. Chief Metropolitan Stipendiary Magistrate, ex p. Home Secy., [1988] 1 W.L.R. 1204; (1988), 132 Sol. Jo. 1430, considered.

(7) Request for International Judicial Assistance, Re (1979), 102 D.L.R. (3d) 18; 49 C.C.C. (2d) 276; on appeal, sub nom. Royal American Shows Inc. v. District Ct. of U.S. Middle Dist. of Florida, [1981] 4 W.W.R. 148, dicta of Miller, J. followed.

(8) Rio Tinto Zinc Corp. v. Westinghouse Elec. Corp., [1978] A.C. 547; [1978] 1 All E.R. 434; (1977), 122 Sol. Jo. 32; sub nom. Westinghouse Elec. Corp. Uranium Contract Litigation M.D.L. Docket 235, [1978] 1 C.M.L.R. 100, considered.

(9) Tucker, In re, 1987-88 JLR 473, distinguished.

(10) Walmsley, Re, 1983 J.J. 35, distinguished.

Legislation construed:

Evidence (Proceedings in Other Jurisdictions) (Jersey) Order 1983 (S.I. 1983/1700), para. 3(2): The relevant terms of this sub-paragraph are set out at page 364, lines 41-43.

Evidence (Proceedings in Other Jurisdictions) Act 1975 (c.34), as extended by the Evidence (Proceedings in Other Jurisdictions) (Jersey) Order 1983, s.5: The relevant terms of this section are set out at page 365, lines 6-23.

Texts cited:

Dicey & Morris, The Conflict of Laws, 11th ed., at 100-101 (1987).

Halsbury's Statutes, 4th ed., vol. 17, at 195n.

Smith & Hogan, Criminal Law, 5th ed., at 533 (1983).

Evidence—assistance to foreign court—nature of foreign proceedings—under Evidence (Proceedings in Other Jurisdictions) (Jersey) Order 1983, may allow evidence to be taken for use in foreign prosecution for tax fraud, even though may result in liability to pay tax—no production of evidence if (a) civil tax-gathering proceedings; or (b) proceedings of political character, i.e. concerning offence striking at established government

The applicants sought the production of evidence relating to Jersey bank accounts for use in English criminal proceedings.

The applicants, both English courts, issued letters of request to the Royal Court to obtain evidence relating to certain Jersey bank accounts. This was to be used in proceedings against named individuals for alleged tax evasion offences, conviction of which could make them liable to pay the tax in question.

The applicants submitted that the court should allow the production of such evidence pursuant to the Evidence (Proceedings in Other Jurisdictions) Act 1975, which was made part of Jersey law by the Evidence (Proceedings in Other Jurisdictions) (Jersey) Order 1983 and which, by s.5, contemplated the production of such evidence for use in foreign criminal proceedings, unless those proceedings were of a political character. Furthermore, the applicant submitted that the Act impliedly abrogated the common law rule that the court should not assist foreign jurisdictions to enforce their penal or fiscal laws.

The Attorney General as amicus curiae submitted that the common law rule prevented the court from aiding the English court in enforcing English criminal law, whether tax-related or not; and, furthermore, granting the applications would amount to an unjustifiable inroad into the principle of banking confidentiality, on which the Island's banking business was based.

Held granting the applications:

The Evidence (Proceedings in Other Jurisdictions) Act 1975, as applied in Jersey by the 1983 Order, contemplated, inter alia, Jersey courts ordering the production of evidence for use in foreign criminal proceedings and to that extent abrogated the common law rule against assisting foreign jurisdictions to enforce their penal or revenue laws either directly or indirectly. The present requests were not "fishing expeditions" by the English revenue authorities with a view to civil tax-gathering proceedings; rather, they were made by English courts in respect of allegations of serious criminal conduct. The proceedings were criminal in both form and substance, notwithstanding that conviction might result in the offenders' being made liable to pay the tax said to have been evaded. Nor were the offences alleged of a political character such as to fall outside the application of the Act, since they did not strike at the fabric of an established government by political disturbance. Furthermore, since it could not be said that production of the evidence would damage banking confidentiality in the Island, the court would order its production (page 366, line 43 - page 369, line 30; page 371, lines 11-18; page 374, line 44 - page 376, line 6).

HAMON, COMMR.: There are before me two applications. They are both applications for an order for evidence to be obtained in Jersey for use in criminal proceedings in England. The first is a letter of request issued by the Nottingham Crown Court; the other is a letter of request issued by the City of London Magistrates' Court.

In R. v. Charlton the Crown alleges 13 common law offences against the six co-accused of cheating Her Majesty The Queen and the public revenue. In R. v. Clements the Crown alleges breaches of s.39(3) of the Value Added Tax Act 1983 as amended by s.12 of the Finance Act 1985. The allegation is of fraudulent evasion of Value Added Tax in excess of £250,000 by the failure of the accused to account for all or any of the Value Added Tax due on the supply of goods at one day sales/auctions. In both actions information concerning Jersey bank accounts is a necessary part of the English proceedings. The applications are made under the Evidence (Proceedings in Other Jurisdictions) Act 1975 as applied by the Evidence (Proceedings in Other Jurisdictions) (Jersey) Order 1983.

Each application is accompanied by affidavits. In R. v. Charlton, the affidavit is sworn by David Cook Johnson, a Solicitor of the Supreme Court of England and Wales, employed in the office of the Solicitor of Inland Revenue. In R. v. Clements, the affidavit is sworn by Kevin David Metcalfe, an officer of Her Majesty's Customs and Excise, with another by Teresa Margaret Dennehey, also an officer of Her Majesty's Customs and Excise. Both the affidavits of David Cook Johnson and Teresa Margaret Dennehey affirm that any evidence obtained from Jersey will only be used for the purposes of the criminal proceedings.

The request for assistance in R. v. Clements came before Mr. Commissioner Le Cras in chambers. He adjourned the matter to this court as, for reasons which will soon become apparent, he wished the matter to be argued fully. Soon after that decision, the request in R. v. Charlton was received and I have therefore considered both matters, as the same important issue of law falls to be decided in each of them. When it became apparent that these matters would, of necessity, have to be argued in open court, Mr. Wheeler was recommended by the Crown to act for the two applicants. The Attorney General, represented by Mr. Whelan, also appears as amicus curiae. It must be recalled that the applications are applications not by the Revenue per se but by the Nottingham Crown Court and the Central London Magistrates' Court.

We have on the one hand common law offences of cheating. Smith & Hogan, Criminal Law, 5th ed., at 533 (1983) says:

"The common law offence of cheating still retains some importance because though s.32(1) of the [Theft] Act abolishes cheating (along with common law offences against property) it does so only 'except as regards offences relating to the public revenue'."

As a practical matter, the offence of cheating has been used on any scale at all only in connection with frauds against the public revenue.

We have on the other hand the breaches of the Value Added Tax Act. Both the criminal matters on which assistance is sought amount in effect to defrauding or cheating the English revenue authorities.

The matter is not without urgency because in the case of R. v.

Clements, although the arrest was made on January 18th, 1993 and there have been a succession of remands (with the bail for each accused being continued), at the next remand hearing on December 10th, 1993 a committal date will be set.

We shall need to examine in some detail the relief which this court is empowered by statute to give, but before that it is necessary to express the well-established rule of law which falls for determination in this case. Dicey & Morris, The Conflict of Laws, 11th ed., at...

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  • Philip Eric de Figueiredo v Commonwealth of Australia
    • Jersey
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    ...Metropolitan Magistrate (Ex p Secretary of State for the Home Office) [1988] 1 WLR 1204. Re Neilsen (1922) 37 CCC 32. In re Charlton [1993] JLR 360. Evidence (Proceedings in Other Jurisdictions) Act 1975. Evidence in Other Jurisdictions (Jersey) Order 1983. Norris v Government of the Unite......
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    • Journal of Financial Crime Nbr. 7-1, March 1999
    • 1 March 1999
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