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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Hickling v Baker  EWCA Civ 287 (04 April 2007)
Cite as:  EWCA Civ 287,  4 All ER 390,  1 WLR 2386
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
MR JUSTICE PUMFREY (appeal 0570)
AND MR JUSTICE LINDSAY (appeal 0571)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE RIX
LORD JUSTICE LLOYD
| NEIL FRANCIS HICKLING
Respondent to appeal
- and –
|TIMOTHY DARREN BAKER
(instructed by Challinors) for the Appellant
Jonathan Crow Q.C., Raquel Agnello and Thomas Robinson
(instructed by Stephenson Harwood) for the Respondent
Hearing date: 20 March 2007
Crown Copyright ©
Lord Justice Lloyd:
"364 Power of arrest
(1) In the cases specified in the next subsection the court may cause a warrant to be issued to a constable or prescribed officer of the court—
(a) for the arrest of a debtor to whom a bankruptcy petition relates or of an undischarged bankrupt, or of a discharged bankrupt whose estate is still being administered under Chapter IV of this Part, and(b) for the seizure of any books, papers, records, money or goods in the possession of a person arrested under the warrant,
and may authorise a person arrested under such a warrant to be kept in custody, and anything seized under such a warrant to be held, in accordance with the rules, until such time as the court may order.
(2) The powers conferred by subsection (1) are exercisable in relation to a debtor or undischarged or discharged bankrupt if, at any time after the presentation of the bankruptcy petition relating to him or the making of the bankruptcy order against him, it appears to the court—
(a) that there are reasonable grounds for believing that he has absconded, or is about to abscond, with a view to avoiding or delaying the payment of any of his debts or his appearance to a bankruptcy petition or to avoiding, delaying or disrupting any proceedings in bankruptcy against him or any examination of his affairs, or(b) that he is about to remove his goods with a view to preventing or delaying possession being taken of them by the official receiver or the trustee of his estate, or(c) that there are reasonable grounds for believing that he has concealed or destroyed, or is about to conceal or destroy, any of his goods or any books, papers or records which might be of use to his creditors in the course of his bankruptcy or in connection with the administration of his estate, or(d) that he has, without the leave of the official receiver or the trustee of his estate, removed any goods in his possession which exceed in value such sum as may be prescribed for the purposes of this paragraph, or(e) that he has failed, without reasonable excuse, to attend any examination ordered by the court."
"(a) give to the trustee such information as to his affairs;
(b) attend on the trustee at such times and
(c) do all such other things,
as the trustee may for the purposes of carrying out his functions under any of this Group of Parts reasonably require."
"I do not believe the Bankrupt has told me what he is doing and he has not divulged information or produced documents records and papers relating to his assets or delivered up all of his assets to me. I think that the only way I shall find out about the affairs of the Bankrupt is if he is committed to prison and is required to answer questions and provide the relevant information to the satisfaction of this Honourable Court."
"I am satisfied that the requirements of the statute are satisfied, that is to say I am satisfied that it appears that there are reasonable grounds for believing that he has at least concealed and will conceal in the future any goods, any books and papers and any records to which you are entitled unless you have collateral means of identifying and obtaining them. … In other words if you can get them through another route he will let you have them but he will not volunteer anything. That is sufficient to satisfy section 364(2)(c). And moreover, I am satisfied that the size of the potential claims in this estate, together with the consistent story of evasion, is sufficient to render drastic steps at this stage entirely appropriate and proportionate to the issues."
We have quoted the terms of the recital to the order at paragraph  above. They go further than what the judge said, since he referred in the passage just quoted to concealment, but not to destruction.
"who shall keep him in custody until such time as the court otherwise orders and shall produce him before the court as it may from time to time direct."
i) The production and delivery up of all Mr Baker's business records, papers and documents;
ii) Disclosure of all passwords for email addresses of, or used by, Mr Baker;
iii) Disclosure and production of all Mr Baker's papers relating to past and current dealings, whether encompassed in his current business activities or not;
iv) Disclosure and production of all documents and papers relating to UCAT, including any business conducted under a trading name including UCAT, or by a corporate entity which includes that as part of its name;
v) Delivery up of any computers currently used by Mr Baker and any passwords necessary for access to such computers;
vi) Delivery up of his blackberry and all passwords needed for access to it;
vii) Delivery up of his passport.
"1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(a) the lawful detention of a person after conviction by a competent court;(b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;(d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts, or vagrants;(f) the lawful arrest or detention of a person to prevent his effecting an unauthorized entry into the country or of a person against whom action is being taken with a view to deportation or extradition.
2. Everyone who is arrested shall be informed promptly, in a language which he understands, of his reasons for his arrest and the charge against him.
3. Everyone arrested or detained in accordance with the provisions of paragraph 1(c) of this article shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.
4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.
5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this article shall have an enforceable right to compensation."
i) Can Mr Baker's detention be justified as being within article 5(1)(b)?
ii) Is it consistent with article 5 and otherwise lawful for an application under section 364 and an order for arrest to be made without the person to be arrested having notice of the hearing?
iii) If so, did the evidence before Pumfrey J justify proceeding without prior notice to Mr Baker?
iv) Do requirements comparable to those of article 5(3) apply in the case of an arrest under section 364?
v) Should the order specify the particular obligations relied on under article 5(1)(b), to secure the fulfilment of which the arrest is said to be intended?
vi) Is it consistent with article 5 for such an application to be made in reliance on evidence which is not disclosed to the person arrested even after the arrest?
"I cannot at the moment visualise any circumstances in which it would be right to give a judge information in an ex parte application which cannot at a later stage be revealed to the party affected as a result of the application."
i) First, although it is compatible with article 5 for an application under section 364 to be made without notice to the person in question, first, the evidence before the court must make out a good case for proceeding without notice, and the evidence in this case did not do so.
ii) Secondly, it is necessary that any order made in those circumstances should itself provide for the person, once arrested, to be brought before the court for a hearing at which both parties will be present or represented, which the first order did not provide. It may be that such a hearing would have to be adjourned, and that custody will have to continue in the meantime, but we regard it as essential that such a hearing should take place at an early stage, as a matter provided for in the order. It is not sufficient to leave it to the initiative of the person arrested.
i) In principle, arrest under an order made under section 364 can be justified under article 5(1)(b).
ii) Article 5 does not require that notice of an application for a committal order under section 364 be given to the person to be arrested in all cases.
iii) However, if the application is made without notice the evidence in support of the application must make it clear why this is said to be justified as an exception to the normal rule. In the present case the evidence did not satisfy this requirement. That was one reason why it was right to allow the appeal against the first order.
iv) Moreover, if the order is made on an application without notice, it is necessary that the order should provide that, once the arrest has been effected, the person arrested be brought before the court at an early opportunity. Quite how early that will be will depend on the particular facts of the case. A hearing on the day of the arrest may not be possible, especially if time is taken up with a search of premises as well under the same warrant. But there should be a hearing on a court sitting day as soon as possible after the arrest. The failure of the first order to make any provision of this kind is the other reason why the appeal against the first order was allowed.
v) The order did not have to specify any particular obligation whose fulfilment was intended to be secured, in terms of article 5(1)(b); it is sufficient for the basis on which the order was made to be recited in the order.
vi) We do not need to decide the sixth point, but we have serious doubts as to whether the withholding of evidence could ever be justified on an application under section 364, even though it is an established practice for applications under section 366, and under section 236, the equivalent provision in the case of corporate insolvency.