Summary

The disclosure by receivers of information received from an individual to third parties would not violate his right to protection from self-incrimination or under the European Convention on Human Rights 1950 art.6(2) since a bank which had brought committal proceedings against him had undertaken not to deploy any information disclosed to it in that action without the court's permission.

Facts

Having allowed an application by the applicant receivers (M) for an order that the respondent (X) provide them with certain information as to his assets, the court was required to determine the regime that should be imposed regarding the use that might be made of that information. A bank based in Kazakhstan, of which X had previously been chairman, had brought an action against X alleging his involvement in a massive fraudulent misappropriation of funds of some $4 billion. Worldwide freezing orders were made against X, and M were appointed receivers. The bank instituted contempt proceedings against X alleging that he was in breach of the freezing orders by failing to disclose assets, giving false evidence under oath and by witness statements, and by dealing with his assets. By its committal application, the bank sought to have X imprisoned for the statutory maximum period of two years. M's application for X to respond to four requests for information which they had made in relation to assets within the receivership was allowed and X provided some information. However, in the light of the pending committal application, he sought the imposition of a restricted information regime to prevent the sharing or use of the balance of the information with any third parties, in particular the bank. X contended that he was, at least pending the committal application, entitled to rely on the privilege against self-incrimination under theEuropean Convention on Human Rights 1950 art.6(2). M submitted that the bank's offered undertaking not to deploy any disclosed information as evidence in the committal proceedings without the court's permission was sufficient to address X's concerns.

Held

(1) There was no question of M handing X's answers to their enquiries over to third parties: they would simply use that information in framing and pursuing further investigations with third parties. It was unrealistic to regard enquiries addressed to third parties as infringing X's privilege against self-incrimination (see para.15 of judgment). (2) Protection against self-incrimination under art.6(2) of the Convention did not extend to pre-existing documents, C Plc v P (2007) EWCA Civ 493, (2008) Ch 1 and R v S (2008) EWCA Crim 2177, (2009) 1 WLR 1489 followed. In the light of those authorities and having regard to the bank's undertaking, which the court accepted, there was no ground on which to impose a restriction on M's use of pre-existing documents obtained as part of X's answers to their requests (paras 19-20). (3) In view of the bank's undertaking, the information that was derived solely from M could not be deployed as evidence against X in the committal proceedings without the permission of the court conducting those proceedings. Although a court order meant that X was compelled to respond to M's enquiries, that compulsion flowed from the very nature of a receivership regime being imposed and the undertaking provided a substantial degree of protection. M were officers of the court and they would bear in mind that they should use information provided to them in raising questions of the bank only where necessary, particularly when the area of enquiry overlapped with the final form of the committal application. M would be directed to give specific consideration to the expediency for the purpose of the receivership of any disclosure which they sought to make to the bank's solicitors of information received from X. Apart from that they were under no restriction regarding disclosure of the information X provided in the course of their enquiries. In the circumstances, such disclosure would not of itself violate X's rights under art.6(2) and would be permitted (paras 22-25).

Judgment accordingly