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England and Wales High Court (Chancery Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Rottmann, Re  EWHC 1794 (Ch) (20 May 2008)
Cite as:  EWHC 1794 (Ch),  BPIR 617,  Bus LR 284
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Claim 10553 of 2005
Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
(Sitting as a Judge of the High Court)
|In the matter of Michael Rottmann|
|The Official Receiver|
6th Floor, 12-14 New Fetter Lane London EC4A 1AG.
DX 410 LDE
Telephone No: 020 7936 6000. Fax No: 020 7427 0093
Mr. Simon Davenport (instructed by Moon Beever) appeared for the Trustee
Crown Copyright ©
HIS HONOUR JUDGE KAYE QC :
"In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it".
"(1) In any proceedings (whether or not under this Act) -
(a) a statement of affairs prepared for the purposes of any provision of this Act which is derived from the Insolvency Act 1985, and
(b) any other statement made in pursuance of a requirement is imposed by or under any such provision or by or under rules made under this Act,
may be used in evidence against any person making or concurring in making the statement.
(2) However, in criminal proceedings in which any such person is charged with an offence to which this subsection applies -
(a) no evidence relating the statement may be adduced, and
(b) no question relating to it may be asked,
by or on behalf of the prosecution, unless evidence relating to it is adduced, or a question relating to it is asked, in the proceedings by or on behalf of that person."
"With the authorities in this unsettled state, their Lordships go back to first principles. Expressed in various ways, the chief strand of reasoning discernible in the common law rule is the undesirability of the state compelling a person to convict himself out of his own mouth. There is an instinctive recoil from the use of coercive power to this end. The state should not 'subject those suspected of crime to the cruel trilemma of self-accusation, perjury or contempt', per Goldberg J in Murphy v Waterfront Commission of New York Harbour  378 US 52, 55. A person should not be put in a position where he is exposed to punishment whatever he does (see R. v. Director of the Serious Fraud Office, Ex Parte Smith  AC 1, 32 per Lord Mustill). Members of a civilised society ought to treat each other better than this. This aspiration is so basic that it has been incorporated as a right in many charters enshrining fundamental rights and liberties, such as the International Covenant on Civil and Political Rights, Article14(3)(G), the 5th amendment to the United States Constitution, and the New Zealand Bill of Rights Act 1990, sections 23(4) and 25(d). The right is expressed with varying degrees of width, but the consistent emphasis is the benefit and protection of the individual. That is the primary purpose of the right. Seen from the point of view of the witness, the right may be as much needed where foreign law is involved as where it is not. The difficulty confronting the individual may be just as acute when the feared prosecution is under the law of another country."
"If the unqualified application of the privilege to foreign law is unsatisfactory, so also is the opposite extreme. The opposite extreme is that the prospect of prosecution under a foreign law is neither here nor there. Since the privilege does not apply to prosecution under foreign law, the witness must always answer a relevant question in the domestic proceedings, regardless of the nature of the crime under the foreign law and regardless of the likely practical consequences for the witness under that law. This would be a harsh attitude. It would be a reproach to any legal system. One would expect that a trial judge would have a measure of discretion. It will be recalled that paragraph 11 of the report of the Law Reform Committee envisaged that the judge would exercise a discretion. A further question arises where the self-incrimination privilege does not apply because the feared prosecution is under foreign law, does the domestic court, under its inherent power to conduct its process in a fair and reasonable manner, nevertheless have a discretion to excuse a witness from giving self-incriminating evidence. This important question", Lord Nicholls tantalisingly concluded, "need not be answered in the present case …. "