The Right Of Privilege Against Self-Incrimination: Volaw v Comptroller Of Taxes

A recent Privy Council decision relating to long-running Jersey proceedings (Volaw -v- Comptroller of Taxes [2019] UKPC 29) provides clarification on the extent to which a party to an action may resist disclosure notices from authorities by utilising the right of privilege against self-incrimination.

What was the background to this judgment and what was the issue for the court to determine?

Volaw Trust and Corporate Services Limited (Volaw) offered corporate services to numerous companies linked to Mr Larsen, a Norwegian national who was the subject of criminal investigations in both Jersey and Norway for fraud and tax evasion. Volaw itself had also been under criminal investigation relating to the services it provided to Mr Larsen.

In this context, Volaw had been served with various notices for compulsory disclosure (the Notices). One Notice was issued by Her Majesty's Attorney General of Jersey (following a Letter of Request from Norway and pursuant to the Investigation of Fraud (Jersey) Law 1991 (the 1991 Law)) and other Notices were issued by the Jersey Comptroller of Taxes (following a request made under the terms of a Tax Information Exchange Agreement between Jersey and Norway and issued pursuant to the Taxation (Exchange of Information with Third Countries) (Jersey) Regulations 2008 as amended (the 2008 Regulations)).

Volaw resisted disclosure of the requested materials on grounds that they were themselves under criminal investigation and could rely on privilege against self-incrimination.

The Jersey Royal Court and the Jersey Court of Appeal had both found that the relevant privilege did not apply to pre-existing documents and therefore could not be relied upon. This is founded on the principle that the privilege against self-incrimination is a right to silence from incriminating oneself but does not protect someone from pre-existing incriminating evidence.

The key questions the Privy Council had to make findings on were:

Whether the Notices were compatible with Article 6 of the European Convention on Human Rights (the Convention) (right to a fair trial); and

Whether privilege against self-incrimination under Jersey customary law had been abrogated by the 2008 Regulations, and/or were Notices issued pursuant to the 2008 Regulations compatible with Jersey customary law.

What did the court decide?

1. Compatibility with Article 6 of the Convention

   The Privy Council disagreed with the lower courts, insofar as they found that European...