Secretary of State for Business, Innovation And Skills v Marshall

Where a person fails, without reasonable excuse, to comply with a requirement imposed under the Companies Act in connection with an investigation, the court may deal with that person as if guilty of contempt. The failure must be proved to the criminal standard. Contempt proceedings under this regime serve both punitive and coercive purposes. A custodial sentence may therefore be imposed but suspended on terms requiring compliance, where the primary public interest lies in enabling the investigation to proceed.

The Secretary of State applied for an order that the respondent be treated as if he were in contempt of court after failing to produce company documents and attend an investigator’s interview. The requirements were imposed during an investigation under the Companies Act 1985. The court had to determine whether the application had been validly served, whether the failures were proved beyond reasonable doubt and, if so, the appropriate sanction.

1. The application had been served in accordance with the order permitting alternative service. The court was satisfied beyond reasonable doubt that the respondent had received the relevant letters.
2. The respondent had failed, without reasonable excuse, to produce documents required by the Secretary of State’s authorised investigator and had failed to attend the required interview. The statutory conditions were therefore satisfied, and he was to be dealt with as if guilty of contempt under section 453C(3) of the Companies Act 1985.
3. Contempt penalties should punish the breach while also enforcing compliance. Although the seriousness of the respondent’s persistent non-compliance made imprisonment appropriate in principle, the primary purpose of the proceedings was to enable the public-interest investigation to progress.
4. A sentence of three months’ imprisonment was imposed, suspended on condition that the respondent provide the required documents by 4pm on 19 November 2015 and attend an interview on 24 November 2015, or on another date notified in writing. The respondent could apply to purge his contempt. An expedited transcript was directed.