The Attorney General of Jersey and Comptroller of Income Tax.
Privilege Against Self Incrimination and Article 6.
Mr Sharp QC wins is this landmark case that redefines the ambit of the privilege against self-incrimination as defined by Article 6 of human rights law [PSI] in both Jersey and the United Kingdom and is now the leading authority in this area of the law.
A specially enlarged panel of seven Lord Lords sat to hear the case during a two-day hearing in November 2018 with Judgment handed down on 17th June 2019. the full judgment can be found here:https://www.jcpc.uk/cases/docs/jcpc-2016-0001-judgment.pdf
In this case, the Jersey trust company Volaw had sought to resist the production of its documents as required by compulsory notices issued by the Attorney General and Comptroller on the grounds that Volaw wished to claim PSI.
There is a strong line of judicial authority that can be traced back to the 1996 European Court of Human Rights decision in Saunders v United Kingdom that draws an important distinction between the requirement to answer questions and the obtaining of pre-existing documents for the purposes of PSI . Saunders confirms that the former engages Article 6 but the later does not. The principle in Saunders had been repeatedly followed by the English Court of Appeal: see R v Kearns  1 WLR 2815 and C PLC v P  Ch 1 for example. The Jersey Royal Court and Jersey Court of Appeal had maintained the Saunders principle in these proceedings.
However, there are some European Court decisions post Saunders and one or two English court judgments that suggest that the matter may not be so clear cut. The Privy Council departed from Saunders and previous English Court of Appeal decisions and adopted a more nuanced and fact specific approach to the issue. Their Lordships concluded that Article 6 is engaged where the production of pre-existing documents is concerned.
However, the Privy Council also observed that there remain material differences between the production of documents and the answering of questions:
“Unlike a statement obtained by imposing pressure on the suspect, real evidence, including pre-existing documents, has an existence independently of any compulsion placed on the suspect. Its reliability as evidence is therefore not affected by the use of compulsion in order to obtain it.”
Ultimately, Their Lordships observed at paragraph 63 of the Judgment that Volaw would have to demonstrate that there had been ‘improper’ compulsion on the part of the Jersey authorities for any claim to PSI to succeed. Volaw were unable to make good this claim. The issuing of a compulsory notice did not infringe Article 6 on the facts of the case which were simply not comparable to other improper compulsion cases considered by their Lordships. These other cases often featured “physical or psychological pressure, often in the form of treatment which breaches Article 3”.
Although it is impossible to do justice to this important judgment in this short article, it is perhaps also interesting to note that the Privy Council confined its ruling to the facts of the case – namely that there was an investigation on foot that may or may not result in a person facing criminal charges. The question as to whether evidence obtained by compulsion was admissible at any trial was an entirely separate question for another day: see paragraphs 66 and 67:
“There is no reason why the courts of Jersey should seek to anticipate what might hypothetically occur in Norway following the production of the documents. The same considerations apply, mutatis mutandis, to the use at any trial in Jersey of documents produced in compliance with the 1991 Law Notice.”