Regina v Kearns: CACD 22 Mar 2002

The defendant had failed to account for the disappearance of a substantial part of his estate to the official receiver following his bankruptcy. He appealed his conviction for failing to provide an account, saying that the requirement to provide information infringed his right of silence and to a fair trial.
Held: The provisions were not an infringement of the defendant’s rights. The offence was one of strict liability, but the onus of proof remained upon the prosecution. At the time when the demand for information was made, there was no charge against the defendant, and it was not an attempt to obtain evidence to support a criminal charge by ‘coercion or oppression in defiance of the will of the accused’ within Saunders, and evidence received could not be used in criminal proceedings. In any event the right to silence is not absolute, and the provision was proportionate and necessary.
Aikens J said: ‘There is a distinction between the compulsory production of documents or other material which had an existence independent of the will of the suspect or accused person and statements that he has had to make under compulsion. In the former case there was no infringement of the right to silence and the right not to incriminate oneself. In the latter case there could be, depending on the circumstances.’

Lord Justice Kennedy, Mr Justice Aikensand Mr Justice Pitchford
Times 04-Apr-2002, Gazette 10-May-2002, [2002] EWCA Crim 748, [2002] 1 WLR 2815, [2003] 1 CAR 7, [2002] BPIR 1213, [2003] 1 Cr App R 7, [2002] Crim LR 653
Insolvency Act 1986 354(3)(a), European Convention on Human Rights 6
England and Wales
CitedSaunders v The United Kingdom ECHR 17-Dec-1996
(Grand Chamber) The subsequent use against a defendant in a prosecution, of evidence which had been obtained under compulsion in company insolvency procedures was a convention breach of Art 6. Although not specifically mentioned in Article 6 of the . .
CitedAttorney-General’s Reference (No 7 of 2000) CACD 29-Mar-2001
The defendant had been convicted of offences under the Insolvency Act. Evidence of his gambling was found in cheque stubs, bank statements, returned cheques and a betting file containing loose gambling statements by way of computer print outs . .

Cited by:
CitedC 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 . .
CitedC Plc v P and Attorney General Intervening CA 22-May-2007
The respondent had been subject to a civil search, which revealed the existence of obscene images of children on his computer. He appealed against refusal of an order that the evidence should not be passed to the police as evidence. He said that the . .
ApprovedHundal and Dhaliwal, Regina v CACD 3-Feb-2004
The defendants appealed against conviction and sentence for membership of an organisation proscribed under the 2000 Act. The defendants said that at the time they joined the organisation was not proscribed, and had left before it became proscribed. . .
CitedRegina v S and A CACD 9-Oct-2008
The defendant appealed against his conviction under the 2000 Act for failing to disclose the key used to encrypt a computer file. He was subject to a control order as a suspected terrorist. As the police raided his house, they found the key had been . .
CitedGreater Manchester Police v Andrews Admn 23-May-2011
The CC appealed by case stated against a refusal of an order under the 2000 Act for the disclosure by the defendant of a cryptography key. The defendant had a history of sexual offences against children and had failed to keep to the terms of a . .

Lists of cited by and citing cases may be incomplete.

Insolvency, Human Rights, Crime

Leading Case

Updated: 02 November 2021; Ref: scu.169830