The Court of Appeal had allowed an appeal from the judge who had directed that the transcripts of examinations of a director of an insolvent company under section 236 on the Director of the Serious Fraud Office undertaking that the transcripts would not be used save in the circumstances specified in section 2(8) of the 1987 Act. The result was that the transcripts should be made available to the director without condition.
Held: The appeal was dismissed.
Lord Browne-Wilkinson said: ‘The inevitable effect of a witness in civil proceedings claiming the privilege against self-incrimination is to deprive the opposite party and the court of evidence relevant to the dispute under consideration. Until recently, this has not given rise to much litigation. But the recent upsurge of financial fraud, particularly in relation to companies, has raised in an acute form the conflict between the witness’s basic right to rely on the privilege on the one hand and the public interest in successfully pursuing and recovering the fruits of such fraud.’ and ‘Only Parliament can weigh the conflicting public interests as between the demands of justice to the accused, the need to obtain the information for the purposes of civil proceedings (including investigatory proceedings) and the public interest in the successful prosecution of those guilty of fraud.’
Lord Browne-Wilkinson said: ‘In my view, where information has been obtained under statutory powers the duty of confidence owed on the Marcel principle cannot operate so as to prevent the person obtaining the information from disclosing it to those persons to whom the statutory provisions either require or authorise him to make disclosure.’
 2 AC 75
Insolvency Act 1986 236, Criminal Justice Act 1987 2(8)
England and Wales
Appeal from – Re Arrows Ltd (No 4) CA 8-Apr-1993
A Civil Court cannot stop the Serious Fraud Office using evidence which had been gathered under compulsion during Insolvency interviews under s236. Any element of confidentiality was overriden. . .
Cited – Marcel v Commissioner of Police of the Metropolis CA 1992
A writ of subpoena ad duces tecum had been issued requiring the production by the police for use in civil proceedings of documents seized during a criminal fraud investigation. The victim of the fraud needed them to pursue his own civil case.
Cited – C Plc and W v P and Secretary of State for the Home Office and the Attorney General ChD 26-May-2006
The claimant sought damages from the first defendant for breach of copyright. An ex parte search order had been executed, with the defendant asserting his privilege against self-incrimination. As computer disks were examined, potentially unlawful . .
Cited – Ingenious Media Holdings Plc and Another, Regina (on The Application of) v Revenue and Customs SC 19-Oct-2016
The tax payer complained that the Permanent Secretary for Tax had, in an off the record briefing disclosed tax details regarding a film investment scheme. Despite the off the record basis, details were published in a newspaper. His claims had been . .
These lists may be incomplete.
Updated: 08 February 2021; Ref: scu.242454