K had been convicted of two counts of obtaining property by deception contrary to section 15 of the Theft Act 1968. He was also convicted of two counts under the Insolvency Act 1986, namely that being a bankrupt (a) he removed property which he was required to deliver up to the Official Receiver or his trustee, contrary to section 354(2); and (b) he failed without reasonable excuse to account for the loss of a substantial part of his property or to give a satisfactory explanation of the manner of the loss, contrary to section 354(3). Large sums were involved-he obtained from the Halifax Building Society pounds 150,000 and pounds 116,250 on a false representation as to his income and that he was not bankrupt and that he did not have any judgment or proceedings for debt outstanding. Prior to these advances he was adjudged bankrupt. His wife later collected from his solicitor pounds 104,000 in cash, part of the monies advanced by the Building Society, and took it in a bin liner to India.. 2. At his trial in 1992 the prosecution, using section 433 of the 1986 Act brought evidence of answers given by him under compulsion in his bankruptcy proceedings and the trial judge ruled that these answers were not rendered inadmissible by virtue of section 31 of the Theft Act 1968 but were admissible under section 433.
Held: His appeal failed. There was no bar on a prosecution based upon evidence in the form of admissions which had been provided involuntarily under the Insolvency Act in public hearings in later Theft Act cases. The written record could be used in any later proceedings.
The Insolvency Act 1986 and its Rules not only permitted the examination of the bankrupt to take place but rendered any statement made in the course of that examination admissible in any trial. In those circumstances, with specific legislation directed to this issue, the protection provided under section 31 of the Theft Act 1968 was inapplicable:
‘The privilege from self-incrimination is abrogated in bankruptcy proceedings not by the opening words of section 31 of the Theft Act 1968, but by rule 6.175 of the Insolvency Rules 1986 made pursuant to section 412 of the act of 1986:
‘(1) The bankrupt shall at the hearing be examined on oath; and he shall answer all questions as the court may put, or allow to be put, to him . . (5) The written record may, in any proceedings (whether under the Act or otherwise) be used as evidence against the bankrupt of any statement made by him in the course of his public examination.’
Thereafter section 433 of the Act of 1986 renders the evidence admissible.’
Citations:
Gazette 24-Jun-1992, Gazette 15-Jul-1992, [1992] 3 All ER 844, [1993] QB 244
Statutes:
Theft Act 1968 31, Insolvency Act 1986 433, Insolvency Rules 1986 6.175
Jurisdiction:
England and Wales
Cited by:
Cited – Clingham (formerly C (a minor)) v Royal Borough of Kensington and Chelsea; Regina v Crown Court at Manchester Ex parte McCann and Others HL 17-Oct-2002
The applicants had been made subject of anti-social behaviour orders. They challenged the basis upon which the orders had been made.
Held: The orders had no identifiable consequences which would make the process a criminal one. Civil standards . .
See Also – Regina v Kansal, on a Reference From the Criminal Cases Review Commission (2) CACD 24-May-2001
Once a case had been referred to the Court of Appeal by the Criminal Cases Review Commission, the court had to make a declaration, even if the case was very old. The effect of the 1998 Act on statute law was not retrospective, but where it affected . .
See Also – Regina v Kansal (2) HL 29-Nov-2001
The prosecutor had lead and relied at trial on evidence obtained by compulsory questioning under the 1986 Act.
Held: In doing so the prosecutor was acting to give effect to section 433.
The decision in Lambert to disallow retrospective . .
Lists of cited by and citing cases may be incomplete.
Evidence, Criminal Evidence, Insolvency, Crime
Updated: 19 May 2022; Ref: scu.87029