JS v R

A restraint order which compels disclosure must preserve the defendant’s privilege against self-incrimination. A prohibition on disclosure to a co-defendant provides an important assurance that compelled material will not be used to incriminate its provider.

A court should not retrospectively remove that protection merely because a co-defendant has a right under section 49(8) of the Proceeds of Crime Act 2002 to make representations on a receivership application. It must first assess whether access to the protected material could realistically assist relevant representations which justice requires the co-defendant to make.

The appellant was awaiting trial for an alleged carousel fraud. A restraint order treated the assets of a company as his assets and required disclosure. Its terms prohibited disclosure of material supplied under the order to a co-defendant, JR.

The Crown sought a receivership order and obtained a variation allowing it to serve JR with trading records supplied under a later variation which permitted the company to continue trading. The Crown relied on JR’s right, as a person holding an interest in the property, to make representations under section 49(8) of the Proceeds of Crime Act 2002. HHJ Lambert granted the variation without hearing submissions from JR’s counsel.

The issue was whether that statutory opportunity justified removing the appellant’s protection against disclosure to his co-defendant.

1. Appeal allowed. The variation order was quashed. The judge had wrongly treated the protection against disclosure to a co-defendant as capable of being readily removed after material had been supplied subject to it.

2. Paragraph 9.2 was an important safeguard for the appellant’s privilege against self-incrimination. It enabled the state to obtain pre-trial information to identify and preserve realisable property, while assuring the appellant that his disclosure would not be used to incriminate him in the pending criminal proceedings, whether by the prosecution or a co-defendant.

3. Section 49(8) of the Proceeds of Crime Act 2002 required a reasonable opportunity for interested persons to make representations. It did not make disclosure of protected material to JR self-evidently necessary. Before varying the order, the court had to analyse how the material could realistically assist JR to make a relevant submission which the interests of justice required him to have an opportunity to make.

4. No such justification was demonstrated. JR had not participated in the trading in issue and was highly unlikely to assist on whether fraudulent trading continued. He could make submissions about prejudice to the value of his interest without the protected material, and could be told the nature of the Crown’s case so far as this could be done without infringing paragraph 9.2. The court left open whether a variation of this kind could ever properly be made, but considered it difficult to imagine one justified solely by an application to appoint a receiver.

• Court of Appeal (Criminal Division) Allowed the appellant’s appeal and quashed the variation order: [2009] EWCA Crim 2972.

• Crown Court at Bristol HHJ Lambert varied the appellant’s restraint order on 14 September 2009 to permit disclosure of specified material to the co-defendant for the receivership application.