HM Customs & Excise v El Heri

A restraint order under section 77 of the Criminal Justice Act 1988 carries an implicit power to require disclosure of information about the defendant’s assets. Information compulsorily disclosed must not be used to prosecute the charged offences, because that would infringe the privilege against self-incrimination. The privilege does not prevent the information being used in confiscation proceedings arising after conviction. That use is consistent with the purpose of the restraint-order jurisdiction, which is to preserve property for a possible confiscation order. Article 6 of the European Convention on Human Rights does not require a different result.

The applicant and nine others were being tried for offences against the Revenue and Customs and Excise. A restraint order made under section 77 of the Criminal Justice Act 1988 prohibited dealings with the applicant’s assets and required disclosure of information about them. The order permitted the information to be used in any subsequent confiscation proceedings and for enforcement of a confiscation order.

Henriques J dismissed the applicant’s application to remove those exceptions. The applicant sought permission to appeal, raising whether the privilege against self-incrimination required the prohibition to extend to confiscation proceedings.

1. Permission to appeal refused. The judge below was correct to retain the exceptions permitting information disclosed under the restraint order to be used in confiscation proceedings and in enforcing any confiscation order.
2. Section 77 of the Criminal Justice Act 1988 implicitly empowers the court to require disclosure of information about assets where necessary to make the restraint-order jurisdiction effective. The power is subject to the common-law privilege against self-incrimination.
3. The privilege requires that compelled disclosure not be used as evidence in prosecuting the offences charged. It does not extend to confiscation proceedings following conviction. The court treated Re O [1991] 2 QB 550 as establishing both the disclosure power and this limitation.
4. The purpose of disclosure is to enable the prosecuting authorities to police the restraint order. Section 82(2) of the Criminal Justice Act 1988 directs that the relevant powers be exercised to make value in realisable property available to satisfy a confiscation order. Prohibiting use of the information in confiscation proceedings would defeat that purpose.
5. The later insertion of section 73(a) by the Proceeds of Crime Act 1995 did not alter the meaning of the 1988 Act before the amendment. The court was also unpersuaded that confiscation proceedings attracted the privilege or that Article 6 required a wider restriction.

Order: permission to appeal refused.

• Court of Appeal (Civil Division): permission to appeal from the decision of Henriques J was refused.
• Queen’s Bench Division (Administrative Court): Henriques J dismissed the application to vary the restraint order.