The Insolvency Service v Boris Franz Becker & Anor.

Orders made in private proceedings may generally be published unless publication is expressly prohibited. However, information relating to proceedings concerned wholly or mainly with the maintenance or upbringing of a minor remains protected by Administration of Justice Act 1960, section 12(1)(a)(iii).

A witness statement compelled in financial remedy proceedings may be used for another purpose only with permission. The court must consider the public interest, the proposed use, fairness to the compelled witness, the confidentiality of the original proceedings and the likely evidential value. A compelled statement, being inadmissible in criminal proceedings, will rarely justify permission for use in a prosecution.

The Insolvency Service sought permission to use in criminal proceedings a statement made by the first respondent in earlier private financial remedy proceedings concerning child maintenance. The statement disclosed his reversionary interest in property held on trust for his daughter and had been produced under court compulsion.

The application also concerned orders made in the private proceedings. The central issues were whether those orders could be communicated without permission, whether the statement had been disclosed in contempt of court, and whether permission should be granted for its use in the criminal proceedings.

1. Orders made in private proceedings. Section 12(2) of the Administration of Justice Act 1960 provides that publication of the text or a summary of an order made in private is not of itself contempt, unless the court expressly prohibits publication. No such prohibition had been made. The property trustee was therefore free to send the orders to the bankruptcy trustees, and the Insolvency Service was free to use them in the criminal proceedings.
2. Protection of the compelled statement. The statement related wholly to the maintenance of a minor. Its disclosure engaged section 12(1)(a)(iii) and amounted to contempt of court. The recipients were also complicit by retaining, reading and relying on it.
3. Applicable procedural rule. FPR Part 12 did not apply to Schedule 1 proceedings, which were financial remedy proceedings governed by Part 9. The application therefore fell under FPR rule 22.20, under which a witness statement served in financial remedy proceedings may be used only for those proceedings unless the court permits another use.
4. Discretion under rule 22.20. The court considered the public importance of prosecuting serious crime, the prosecutor’s duty to place relevant evidence before the criminal court, and the fact that any privilege against self-incrimination was for the Crown Court to determine. It also gave substantial weight to the statement’s compelled character, its inadmissibility in criminal proceedings, the confidentiality of the proceedings and the weakness of the charge. The judge disagreed with Gilani v Saddiq to the extent that its reasoning did not give sufficient weight to the assurance against criminal use.
5. Permission to use the statement was refused. The statement added nothing material to proof of the respondent’s knowledge. A possible derivative use, such as identifying lines of enquiry, was left open. The Insolvency Service and its counsel were directed to destroy all hard and soft copies and to make no further mention of the statement in the criminal proceedings.

First-instance decision. No appeal or earlier judicial decision is stated in the judgment.