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Cite as: [2001] EWCA Crim 1750

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TRUTCH, R v. [2001] EWCA Crim 1750 (25th July, 2001)

Case No: 20010227 S4
20012281 S4
Neutral Citation Number: [2001] EWCA Crim 1750
Royal Courts of Justice
Strand, London, WC2A 2LL
Wednesday 25th July 2001

B e f o r e :
(Vice President of the Court of Appeal Criminal Division)
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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
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Mr Peter Collier Q.C. and Mr Derek Duffy (Mr Trutch) and Mr Stuart C.Brown Q.C. and Mr A.Campbell (Mrs Trutch) (instructed by Tates (Mr Trutch) and David Ake & Co. (Mrs Trutch) Solicitors for the Appellants)
Mr Jeremy Gibbons Q.C. and Mr Forster (instructed by CPS for the Prosecution)
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As Approved by the Court
Crown Copyright ©

1. This is an interlocutory appeal by Stephen Anthony Trutch and his wife Jeanne Mary Trutch under section 35 of the Criminal Procedure and Investigations Act 1996 against rulings of His Honour Judge Pryor Q.C. at a preparatory hearing in the Crown Court at Winchester given on 6 April 2001.
2. Mr and Mrs Trutch face an indictment which charges Mr Trutch with three counts of perjury and six counts of perverting the course of justice. Mrs Trutch is jointly charged on two of the counts of perverting the course of justice. She also faces two counts of assisting in the retention of the benefit of criminal conduct.
3. The counts arise out of the alleged conduct and evidence of Mr and Mrs Trutch in connection with proceedings brought in the Queen's Bench Division of the High Court of Justice by the Government of Dubai and Sheikh Mohammed Bin Rashid Al Maktoum ("the claimants") for, amongst other matters, damages for alleged fraud, deceit and conspiracy to defraud. A large part of the evidence in the criminal proceedings consists of material which came into being for the purposes of the High Court proceedings, including in particular affidavits sworn by Mr and Mrs Trutch in those proceedings.
4. Mr and Mrs Trutch applied to the Crown Court to stay the criminal proceedings against them as an abuse of process or to rule that the affidavits from the High Court proceedings should be declared inadmissible. Judge Pryor Q.C. declined to make either ruling. He dismissed the applications to stay the criminal proceedings, and he ruled, in effect, that the affidavits should be admitted in evidence: hence this appeal, brought with the leave of the judge.
5. The essential background is that from about 1982 until September 1993, when he left Dubai, Mr Trutch was employed as Chief Engineer in the Engineer's Office of the claimants. In due course it appeared that he had been accepting substantial bribes from contractors engaged in government works, and on 27 September 1993 the claimants commenced High Court proceedings against him in this country where he and Mrs Trutch lived. On the same day the High Court made an order restraining Mr Trutch from disposing of his assets within or outside the jurisdiction and requiring him to swear an affidavit disclosing all such assets to a value of £250 or more. He swore an affidavit on 5 October 1993, purporting to set out the full extent of his assets. Count 2 alleges perjury in that affidavit.
6. On 10 November 1993 Mr Trutch consented to judgment in the sum of £15 million, but on 8 August 1994 he commenced High Court proceedings to set aside that judgment. The claimants issued a notice of motion to commit Mr Trutch for contempt of the restraining order, and they sought an order that he pay US $323,000 into a solicitors' joint account. On 3 November 1994 Mr Trutch swore an affidavit that US $323,000 were the last remaining funds at his disposal in the world. Count 7 alleges perjury in making that statement. The motion to commit Mr Trutch was adjourned on terms. On 6 July 1995 Mr Trutch swore an affidavit to the effect that he did not own or have any interest in any home or residence in the United States. Count 8 alleges perjury in that respect.
7. Throughout, the claimants' solicitors pursued Mr Trutch for his assets. There were further committal proceedings, this time against both Mr and Mrs Trutch. They both swore affidavits in response. Mrs Trutch's affidavits were sworn on 1 March and 19 April 1996. The committal proceedings were adjourned and negotiations to resolve the litigation intensified with correspondence and draft affidavits on a confidential basis.
8. The negotiations were successful and settlement of the litigation was embodied in a deed of settlement and a consent order both made on 6 June 1996 when Mrs Trutch was joined as an additional defendant to the claimants' action, and both Mr and Mrs Trutch swore affidavits purporting to set out in full their past dealings with their assets.
9. The deed of settlement was made between Mr and Mrs Trutch and both claimants. By clause 5 Mr and Mrs Trutch agreed and acknowledged that they had sworn their affidavits and entered into the agreement and consent order freely and without duress; that they had received legal advice from their own chosen lawyers, Dawson & Co.; and that in entering into the agreement and the consent order they and each of them had not relied on any promise, representation or understanding whatsoever other than those expressly set out in the agreement, and they had received no inducement to enter the agreement.
10. By clause 6 Mr and Mrs Trutch agreed and acknowledged that £15 million was the minimum damages for which Mr Trutch was liable to the claimants.
11. By Clause 11 Mr and Mrs Trutch covenanted to co-operate fully with the claimants in connection with any proceedings brought against any other person in connection with the subject matter of the claimants' action and matters referred to in the settlement affidavits, consent order or agreement.
12. By clause 15 the claimants undertook to withdraw and not prosecute the pending contempt proceedings, to permit Mr and Mrs Trutch to retain certain assets, and not to initiate a prosecution of Mr and Mrs Trutch for perjury arising out of matters disclosed in affidavits sworn by Mr and Mrs Trutch.
13. Clause 18 obliged Mr and Mrs Trutch to keep confidential all information of any sort relating to the claimants, their agents, employees or representatives, including without limitation matters relating to or referred to in the claimants' affidavits, consent order and agreement. There was no covenant of confidentiality on the part of the claimants.
14. Schedules to the deed of settlement purported to list all Mr and Mrs Trutch's assets. The deed and the settlement affidavits acknowledged that there was no substance in the allegations made in Mr Trutch's 1994 action; that Mr Trutch had repeatedly breached orders made in both the claimants' and his own action, and that Mrs Trutch had aided and abetted Mr Trutch in a number of those breaches and that he had abused his position as Chief Engineer.
15. Paragraph 10 of the consent order as drafted required Mr and Mrs Trutch to swear and serve the settlement affidavits with all details of assets above £250, and dealings in assets, by 4pm on 6 June 1996. The summary judgment in the claimant's favour was to remain in force. Mr Trutch's own action was dismissed.
16. On 6 June 1996, counsel for the parties appeared before a judge of the High Court to ask leave not to proceed with the claimants' notices of motion to commit Mr and Mrs Trutch, and to ask that the consent order be made. In the course of the short hearing counsel for the claimants mentioned paragraph 10 of the draft consent order thus:
"The item that might have caused some difficulty would be [paragraph] 10 for the swearing of affidavits, but the affidavits have been prepared in several drafts and actually have now been sworn and do not come as a surprise to the [claimants]. Subject to service, and even that may actually have been complied with, paragraph 10 has been complied with."
17. The judge gave leave to withdraw the notices of motion to commit, and made the consent order.
18. In due course a complaint about Mr Trutch was made to Hampshire Police, by a lady whose husband had been prosecuted in Dubai, partly on the strength of information given in Mr Trutch's affidavits sworn in the High Court proceedings against him, and in a later affidavit sworn by Mr Trutch on 14 March 1997. Detective Sergeant Bowness investigated. In February 1999 D.S. Bowness obtained Master Murray's consent to the release of various documents from the High Court file. In March and April 1999 he obtained and executed a justice's warrant to search Mr Trutch's premises for various papers. He took possession of papers, some of which were boxed and sealed and remained unread as a result of a claim of privilege. Mr Trutch did not claim privilege in respect of an unexecuted copy of the deed of settlement, referring to the settlement affidavits, which D.S. Bowness took. D.S. Bowness made a Special Procedure application under the Police and Criminal Evidence Act to obtain documents held by Dawson & Co., who had acted for Mr and Mrs Trutch, and Allen & Overy, who had acted for the claimants, in the High Court proceedings. On 3 June 1999 His Honour Judge Burford Q.C. ordered production of documents which included Mr and Mrs Trutch's 6 June 1996 settlement affidavits held by Allen & Overy.
19. In due course Mr and Mrs Trutch were arrested and charged. We have already referred to the three counts (2,7 and 8) of perjury against Mr Trutch. Count 1 alleges acts by Mr and Mrs Trutch between 1 August 1993 and 7 June 1996 to pervert the course of justice, in surrendering and distributing the proceeds of three life policies without disclosure to the claimants. Count 3 makes similar allegations against both in respect of the proceeds of a further policy. Count 4 makes a similar allegation against Mr Trutch in respect of a sum of US $324,000. Count 6 accuses him of perverting justice by a false allegation against the Sheikh. Count 9 makes a similar allegation in respect of a sum of £80,000, and Count 11 makes a similar allegation in respect of a payment of £27,900. Counts 5 and 10 accuse Mrs Trutch of assisting Mr Trutch to retain the benefit of criminal conduct, firstly in the purchase of shares with guilty money and secondly in crediting the £80,000 to an account in her name. Although both Mr and Mrs Trutch have pleaded not guilty to the indictment, the affidavits sworn by Mr Trutch on 5 October 1993, 3 November 1994, 6 July 1995 and 6 June 1996, and the affidavits sworn by Mrs Trutch on 1 March and 6 June 1996, will provide weighty evidence against them, if admitted.
20. The first contention of Mr Peter Collier Q.C. for Mr Trutch, whose submissions were adopted by Mr Stuart Brown Q.C. for Mrs Trutch, was that the settlement affidavits of 6 June 1996 were the subject of "common interest privilege". Mr Trutch's affidavit addressed the claimants, in particular the Sheikh, expressing Mr Trutch's regret and his wish to be his true ally for the future. The deed of settlement promised the co-operation of Mr and Mrs Trutch with regard to the subject matter of the claimants' High Court action and any proceedings brought against others. The affidavits were an expression of the coming together of Mr and Mrs Trutch and the claimants with a common interest for the future.
21. Mr Collier referred to Leif Hoegh & Co. A/S v. Petrolsea Inc. (The "World Era") (No.2) [1993] 1 Lloyd's Report 363 as support for common interest privilege in respect of documents communicating information between parties with a common interest in proceedings. But in that case the common interest was said to be between Petrolsea and Marc Rich with whom it had a common interest in conducting proceedings and an arbitration brought against Leif Hoegh. It was held that common interest privilege did not extend to an affidavit, the dominant purpose of which was to advance Marc Rich's case in a dispute with Petrolsea over their respective interests in, and right to control the arbitration, but the principle of common interest was extracted from the exposition of Lord Denning M.R. in Buttes Oil Co. v. Hammer [1981] 1 Q.B.223. It applied to documents (and copies thereof) passing between persons who have a common interest in advancing proceedings brought or contemplated against another, or in defending proceedings brought or contemplated by another, who seeks disclosure of the documents for use in the proceedings. It is a type of legal professional privilege whereby those with a common interest in litigation, just as a litigant and his legal advisers, can make candid communications without fear that they may be relied upon by an opposing party.
22. In our view there was no room for common interest privilege in the litigation in which the 6 June 1996 affidavits were produced. Mr and Mrs Trutch, on the one hand, and the claimants, on the other, were opposing parties with no common interest until the deed of settlement and affidavits were made and communicated, and the litigation settled, whereupon there was no opposing party in respect of whom privilege could be claimed. The deed of settlement put no restriction on the claimants disclosing the settlement affidavits.
23. Judge Pryor Q.C. could not accept that common interest privilege applied to the settlement affidavits; nor can we. It was not suggested that it applied to any earlier affidavits.
24. Next, Mr Collier contended that the 6 June 1996 affidavits were subject to an express or implied undertaking (by the claimants presumably) to use them only for the purposes of the High Court litigation in which they were produced. Assuming, without deciding, that affidavits sworn under compulsion of a court order are potentially subject to the same rules in relation to the implied undertaking as documents produced on discovery (see A-G for Gibraltar v. May [1999] 1 W.L.R.988 per Hirst L.J. at 1003H), RSC, Order 24 rule 14A provided and Part 31.22 of the CPR provides that the material disclosed may be used for purposes outside the proceedings in which it is disclosed where "it has been read to or by the court, or referred to", at a hearing which has been held in open court, in public.
25. Hearings of notices of motions to commit, even where they are to be withdrawn by consent, with the court's leave, are heard in public, and there is nothing to suggest that the hearing on 6 June 1996 was not held, as it should have been, in open court. It is clear from the words which were earlier quoted from the transcript of the hearing that the affidavits of 6 June 1996 were referred to at the public hearing. Plainly, the words "referred to" in RSC, 0.24, r.14A and the CPR Part 31.22 add some to the preceding words "read to or by the court", and we cannot accept Mr Collier's argument that they mean "referred to so as to put them in the public domain by referring to their contents".
26. In any event we are quite unable to imply an undertaking by the claimants to use the settlement affidavits only for the purposes of the High Court litigation in which they were produced, in the circumstances of this particular case, where the lack of a covenant of confidentiality on the part of the claimants in the settlement deed pursuant to which the affidavits were voluntarily produced was so pronounced, and Mr and Mrs Trutch expressly covenanted to co-operate in proceedings against others, which must have made clear to them that their settlement affidavits might well be made public and used elsewhere.
27. We conclude that there was no express or implied undertaking which survived the 6 June 1996 hearing to prevent the claimants or their solicitors disclosing the 6 June 1996 affidavits.
28. There was certainly no covenant of confidentiality by the claimants in the deed of settlement. It is conspicuous by its absence in comparison with the covenant of Mr and Mrs Trutch, at clause 18. The surrender of the settlement affidavits in compliance with the order of Judge Burford Q.C. plainly could not amount to initiation of a prosecution of Mr and Mrs Trutch for perjury (or anything else) in contravention of clause 15, but Mr Collier argued that public policy required confidentiality in this case. He referred us to Rush & Tomkins Ltd v. Greater London Council [1989] 1280 where the second defendants sought from the claimants disclosure of "without prejudice" correspondence between the claimants and the first defendants, leading to compromise and discontinuance of the claimants' action against the first defendants. Speeches in the House of Lords stressed the public interest in protecting "without prejudice" communications between parties to litigation from production to other parties in the same litigation; to hold otherwise would place a serious fetter on negotiations and deter parties from using the precision of negotiations in writing. Mr Collier contended that the decision illustrated a general principle that parties to litigation should be able to negotiate and reach agreement with confidence that what passed between them would not be disclosed, least of all to be used for prosecution of a party for his criminal conduct during the proceedings. He contended that no particular reason has been advanced to outweigh those policy factors in the present case and no balancing exercise of completing public interest had been undertaken.
29. However, in our view, Mr Collier's argument amounted to an attempt to create a new and wide category of confidentiality or privilege against the world, in respect of all documents which are created en route to, or as the result of, the compromise of litigation. Rush & Tomkins is not authority for such wide confidentiality and we were referred to no other authority for its existence.
30. There is clearly a public interest in the prosecution of offences such as those alleged against Mr and Mrs Trutch and we, like Judge Pryor Q.C., can find no privilege or confidentiality in the 6 June 1996 affidavits, restricting their disclosure to the Crown for use in prosecuting Mr and Mrs Trutch.
31. The remaining arguments of Mr Collier and Mr Brown bore on both the application of sections 76 and 78 of the Police and Criminal Evidence Act 1984 and on the application that the criminal proceedings against Mr and Mrs Trutch should be stayed as an abuse of the Crown Court's process.
32. Mr Collier took a number of points in support of contentions that the 6 June 1996 affidavits were obtained by oppression or in circumstances which were likely to render the confessions they contained unreliable (for the purpose of section 76), and that their admission in evidence would have an adverse effect on the fairness of the Crown Court trial (for the purpose of section 78), and that prosecution on the basis of the affidavits amounted to an abuse of process. They can be summarised as follows: first, that the methods used by D.S. Bowness to obtain the settlement affidavits, and other affidavits, were improper; second, that the covenant of confidentiality in the deed of settlement, with draconian penalties for breach, would prevent Mr and Mrs Trutch explaining the contents of their settlement affidavits even to the extent of saying whether or not their contents were true (in particular they would be prevented from exploring the factors and inducements which caused them to make apparent admissions and concessions); and third, that the circumstances of the settlement of the High Court litigation gave Mr and Mrs Trutch a legitimate and settled expectation that no criminal proceedings would be instituted against them.
33. The allegations of impropriety in obtaining the copies of affidavits including the settlement affidavits really depended upon them being the subject of privilege and confidentiality. Once it is clear that no privilege or right of confidentiality attached to the affidavits the complaint in our judgment evaporates.
34. In April and May 1999, D.S. Bowness went to the Royal Courts of Justice and took possession of certified copies of various orders and affidavits of the solicitor acting for Mr and Mrs Trutch, in the High Court litigation, with the permission of the High Court Master. Mr Collier criticised the informal, ex parte approach to the Master, but since the documents were not protected by any privilege or right to confidentiality, the approach to the Master was, in reality, no more than a matter of finding the proper way to obtain the documents in question. There was no need for a formal ex parte, or inter partes, application in accordance with the practice directions relating to such applications.
35. The application for a search warrant was properly made to a justice of the peace, and granted, albeit in wide terms. It was executed late, but documents in respect of which privilege was claimed remained unread, and no privilege was claimed in respect of the unexecuted copy of the deed of settlement which was found.
36. The PACE Special Procedures application was made to Judge Burford Q.C. on 28 May and 3 June 1999 on notice to Dawson and Co. (Mr and Mrs Trutch's solicitors in the High Court litigation) and Allen & Overy (the claimants' solicitors). Mr Trutch was given notice of the 3 June 1999 hearing. Although counsel for Dawson and Co. raised the possibility of privilege at the first hearing, their counsel at the second hearing accepted that affidavits in respect of the 1993 and 1994 High Court proceedings were not privileged. Allen & Overy were not represented. Their stand in correspondence was that they would not disclose documents in their possession without an order, but they did not resist an order. D.S. Bowness very fairly informed the judge that Mr Trutch had indicated a defence of duress and that there might be evidence in the files that would assist him. The judge made all due enquiries of counsel for the Crown and for Dawson & Co., and of D.S. Bowness, and gave a reasoned judgment (at the end of a three hour hearing) ordering production of Mr and Mrs Trutch's original affidavits up to and including the affidavits of 6 June 1996. The original affidavits of 6 June 1996 were, of course, in the possession of Allen & Overy, having been served on them on 6 June 1996 pursuant to the consent order. We cannot fault the procedure followed to obtain the affidavits.
37. We cannot accept that the covenant of confidentiality contained in clause 18 of the deed of settlement can be construed to limit the conduct of the defence of Mr and Mrs Trutch or the evidence which either might wish to give to the jury. The need for a fair trial of the criminal allegations is obviously paramount, both in domestic and Convention law. Clause 18 must be interpreted to contain an implied term excepting their conduct of, or evidence in, any criminal proceedings which may be brought against them, or it must be against public policy and unenforceable. That must now be plain to those advising Mr and Mrs Trutch who cannot, therefore, claim that there is a deterrent uncertainty about the effect of clause 18.
38. In our view the contention that Mr and Mrs Trutch had a legitimate and settled expectation that no criminal proceedings would be instituted against them arising out of their conduct in or in respect of the High Court proceedings if they made the admissions and concessions contained in their 6 June 1996 affidavits, is untenable.
39. The expectation was alleged to be based on the claimants' promises to discontinue and not to revive the proceedings for contempt and not to institute a prosecution for perjury arising out of the matters disclosed in the affidavits sworn in the High Court proceedings. But those promises were made by the claimants, and not by any prosecuting authority in this country.
40. It was further alleged to depend on an expectation that all matters that had passed between the parties to the High Court proceedings and, particularly, matters contained in the affidavits, would be kept confidential. But the obligation of confidentiality was placed on Mr and Mrs Trutch alone, not on the claimants or anyone who was not a party to the deed of settlement.
41. It was finally alleged to arise from the approval of the consent order by the judge who, on 6 June 1996, agreed that no further action be taken against Mr and Mrs Trutch in relation to their conduct within the High Court proceedings. But the judge simply countenanced the agreement made between the parties and decided that he need take no further action of the court's own motion. He gave no indication in respect of any criminal proceedings which might be initiated by the Crown. He would not, in any event, have had power to bind the prosecuting authority, which was not a party to the civil proceedings or represented before him..
42. Mr Collier did not pursue in oral argument his written submission that Judge Pryor Q.C. was wrong to hold that the right of Mr and Mrs Trutch to respect for private and family life, their home and correspondence, under Article 8 of the European Convention on Human Rights added nothing to their application. The argument based on Article 8 really fell with the claims for privilege and confidentiality and the contention that the affidavits were not obtained in accordance with the law.
43. Mr Brown presented arguments relating to inducements to make the settlement affidavits and failure to advise of a privilege against self-incrimination. He started his submissions with the proposition that it may be in the public interest for the prosecution not to use particular material in aid of any prosecution which is brought. He contended that it was against the public interest to use the affidavits sworn by Mrs Trutch in the High Court proceedings, in which she had told the truth with the result that she was not accused of perjury. Mrs Trutch's affidavits were sworn in response to applications to commit her for contempt and, additionally on 6 June 1996, as part of an overall settlement which carried the inducements of protection against committal or prosecution by the claimants, retention of her home and her employment. She was under great pressure. She was not legally represented at first, and she was never separately represented. She was only made party to the proceedings on 6 June 1999.
44. Moreover, Mr Brown contended, Mrs Trutch was entitled to a privilege against self-incrimination in the High Court proceedings, of which she was never advised. She was never warned that she might incriminate herself. At very least there was no evidence that she was so advised or warned. If Mrs Trutch had made similar admissions to those in her affidavits to a police officer, it was very likely that that they would have been ruled inadmissible under section 76 or section 78. Judge Pryor Q.C. had not referred to this submission, save to say that Mrs Trutch had a free choice as to whether to swear the 6 June 1996 affidavit, which was, in practical terms wrong.
45. Furthermore, Mr Brown contended, the courts had long recognised that the privilege against incrimination might need to be modified or even abrogated for reasons of public policy, but, if so, there had to be appropriate safeguards against the use of resulting admissions in evidence. Mr Brown gave us examples of this happening and contended that Mrs Trutch's privilege against self-incrimination had been abrogated. She should, accordingly, be protected from her admissions being used in evidence in the criminal proceedings.
46. Mr Brown argued that the counts against Mrs Trutch, or at least counts 5 and 10, were "money laundering" offences, and the equivalent of "handling" charges. If Mrs Trutch had been at risk of handling charges, section 31 of the Theft Act 1968 would have deprived her of any privilege against self-incrimination, but no resulting statement or admission would have been admissible against her or her husband. In Sociedade Nacional de Combustiveis de Angola U.E.E. v. Lundquist [1991] 2 Q.B.310 at 338 Sir Nicholas Browne-Wilkinson V.-C. expressed the hope that in order to aid the effectiveness of civil remedies designed to redress fraud, Parliament would consider, as a matter of urgency, extending the provisions of section 31 so as to remove the privilege against incrimination in relation to all civil claims relating to property, including claims for damages, but on terms that the statements made in documents disclosed are not admissible in any criminal proceedings. The call for Parliament to act was repeated in A.T. & T. Istel Ltd v. Tulley [1993] A.C.45 and Den Norske Bank A.S.A. v. Antaratas [1999] Q.B.275. Mr Brown accepted that the calls have not been heeded but argued that the public policy behind them was clear. Similar provisions to section 31 of the Theft Act are to be found in section 72 of the Supreme Court Act 1981 (with an exception for perjury) and section 2 (8) of the Criminal Justice Act 1987. There were suggestions in A-G for Gibraltar v. May [1999] 1 W.L.R.998, R v. Hertfordshire County Council [2000] 2 W.L.R.373 and A-G's Reference No 7 of 2000(P), a decision of this court on 29 March 2001, that where there was a compulsion to provide information, without a provision that it should be inadmissible in criminal proceedings, any consequent unfairness stood to be dealt with by exercise of discretion under section 78 of PACE, or otherwise in the Gibraltar case. We were also referred to Saunders v. U.K. [1997]
23 EHRR 313 and Heaney and McGuinness v. Ireland [2001] Crim LR 481.
47. But the Attorney-General for Gibraltar brought the injunction proceedings in which the affidavits upon which he wished to rely in criminal proceedings were filed. Hertfordshire C.C., A-G's Ref.No.7 of 2000 and Saunders were cases of statutory compulsion and Heaney and McGuiness presented a choice between disclosure and imprisonment. The statements were made under State pressure which the affidavits in the present case were not. Hertfordshire County Council and A.G.'s Reference No.7 of 2000(P) make it clear that even in the case of statutory compulsion, exclusion of statements under section 78 is very much a matter for the trial judge's discretion.
48. We cannot accept the contention that Judge Pryor Q.C. did not exercise his discretion in the present case or exercised it wrongly. He expressly referred to section 78 and he used terms apposite to section 78. It is clear from Mrs Trutch's affidavit sworn on 1 March 1996 that she was receiving legal advice at that time. The inherent likelihood is that she would have received advice on her privilege against self-incrimination and there is no evidence before us that she was not advised about it. In any event, by the deed of settlement both Mr and Mrs Trutch agreed and acknowledged that they had entered the agreement and consent order freely and without duress and that they had received legal advice from their own chosen lawyers who had been made fully aware of all the relevant facts and matters. As we have already said, the lack of a covenant of confidentiality on the part of the claimants together with the covenant by Mr and Mrs Trutch to cooperate in proceedings against others must have made it clear that their settlement affidavits and contents might well be made public, and the only restriction on prosecution given by the settlement expressly related to a prosecution initiated by the claimants. The attractions of the deed of settlement, to Mr and Mrs Trutch, even at the cost and risk of making candid settlement affidavits, are obvious.
49. In all the circumstances, in our judgment, there is no sound basis for any suggestion that any of the affidavits were obtained by oppression of Mr and Mrs Trutch or in circumstances which made their contents unreliable for the purpose of section 76 of PACE. Nor were the circumstances such that the admission of any of the affidavits would have an adverse effect on the fairness of the proceedings for the purposes of section 78 or generally. Judge Pryor Q.C. was entitled to conclude that Mr and Mrs Trutch had a free choice whether to swear affidavits and as to what information they put into any affidavits which they did swear.
50. For all these reasons we, like the judge, can see nothing unfair in the admission of the affidavits in evidence or the prosecution of Mr and Mrs Trutch, supported by their contents. Nor can we see that the admission of the affidavits or the prosecution of Mr and Mrs Trutch is against the public interest in the particular circumstances of this case. There is a considerable public benefit in encouraging the settlement of civil disputes. But the judge was entitled to hold, as he did, that the public interest in prosecuting the offences alleged in this case outweighed such considerations.
51. Accordingly the appeals of both Mr and Mrs Trutch are dismissed.

© 2001 Crown Copyright

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