K, R. v

In matrimonial ancillary-relief proceedings, the statutory duty to consider all the circumstances and the corresponding obligation of full and frank disclosure impliedly remove the privilege against self-incrimination. Information supplied under that obligation is compelled.

Its use in a criminal trial nevertheless breaches European Convention on Human Rights Article 6 where the compulsion is severe and admitting the evidence is not a proportionate response to the social need relied on. Admissions made during an expressly open part of negotiations may also be compelled if elicited to obtain financial disclosure.

Without-prejudice communications are not, solely for that reason, inadmissible in later criminal proceedings brought by a third party. The trial judge retains the power to exclude evidence if its admission would be unfair.

K appealed rulings made at a preparatory hearing in a prosecution for cheating the public revenue. The Crown alleged that he had failed to account for income tax and capital gains tax on funds held in Switzerland and Liechtenstein.

During matrimonial ancillary-relief proceedings, K served a Form E and gave written answers about his assets. He also made admissions at meetings between the parties’ solicitors on 29 October 2001 and 29 April 2002. The Crown accepted that the written admissions were essential to its case.

The Crown Court held that K could have invoked privilege against self-incrimination in the ancillary-relief proceedings, but held parts of the meetings respectively open and without prejudice. K appealed and the Crown cross-appealed. The central issues concerned compulsion, Article 6 fairness, and the later criminal use of admissions made in open and without-prejudice discussions.

1. Appeal and cross-appeal allowed. Parties to ancillary-relief proceedings cannot invoke privilege against self-incrimination to withhold relevant financial information. The scheme in sections 23 to 25 of the Matrimonial Causes Act 1973, read with the disclosure rules, requires full and frank disclosure. That purpose would be frustrated if a party could withhold material because it tended to incriminate him. The Form E and questionnaire answers were therefore obtained under compulsion.

2. The disclosure was capable of incriminating K because it could set in train an inquiry leading to evidence of undeclared income and gains. However, applying the qualified Article 6 approach in Saunders v United Kingdom (1997) 23 E.H.R.R. 313 and Brown v Stott [2003] 1 A.C. 681, the court held that criminal use of the compelled admissions would be unfair. A refusal to disclose could be punished by imprisonment for contempt. Using evidence obtained under that severe compulsion was not a proportionate response to the objective of suppressing tax evasion, even though that objective was important. The evidence had to be excluded under section 78 of the Police and Criminal Evidence Act 1984.

3. The first part of the 29 October meeting was expressly open and was not protected by the without-prejudice rule. Parties may agree that parts of a meeting are open and that protection begins only when compromise negotiations commence. But the admission made in the open part was elicited to obtain the financial information required in the ancillary-relief proceedings. It was therefore also compelled and inadmissible at K’s trial.

4. Admissions made in the admittedly without-prejudice meeting on 29 April were not automatically inadmissible in a later criminal prosecution. The Crown was not party to the negotiations, so the issue depended on public policy rather than the parties’ agreement. The public interest in prosecuting crime outweighed the interest in preserving settlement confidentiality in those unrelated criminal proceedings. The trial judge could still exclude the evidence under section 78 if admitting it would make the trial unfair.

• Court of Appeal (Criminal Division): Allowed K’s appeal against the preparatory rulings on privilege, compelled evidence and the 29 October meeting; allowed the Crown’s cross-appeal on the admissibility of admissions made during the 29 April without-prejudice meeting.
• Crown Court at Blackfriars: At a preparatory hearing under section 29(1) of the Criminal Procedure and Investigations Act 1996, ruled that K could invoke privilege against self-incrimination in ancillary-relief proceedings, and made rulings on the status and admissibility of the meeting admissions.