October 1998
Apart from the fact that only the official receiver can be trustee, the administration of the estate is similar to that of any other bankruptcy proceedings. The criminal bankrupt is under the same duty to attend on the official receiver and to submit a statement of affairs as anyone made bankrupt on a creditor’s petition. However, due to the nature of criminal bankruptcy orders, it is likely that the bankrupt will be detained at "Her Majesty’s Pleasure" and arrangements will have to be made to interview in prison.
Notes: [s291][s288]
35.19 Official Petitioner at petition hearing
It is usual for a representative of the official petitioner’s office to attend the hearing of the making of the bankruptcy order. He/she will subsequently attend upon the official receiver to talk to the examiner allocated to the case. The representative will have a file of papers to pass to the official receiver which will usually include a copy of the criminal bankruptcy order and a police assets report (the Official Petitioner asks the police to prepare this for him/her to assist in assessing whether it is in the public interest to present a petition). The representative may be able to provide a general background to the case. Such information can be very useful in assessing the likely character and reaction of a bankrupt. The representative for the Official Petitioner will also provide the last known prison address and prison number of the bankrupt, which should be quoted in any communication with a prison or the Home Office. A list of Her Majesty’s Prisons showing addresses and telephone numbers is attached at Annex 1.
Notes: [s402(2)(a)]
35.20 Contact Prison
(Amended October 2011)
The last known prison address of the bankrupt should be telephoned without delay to check the whereabouts of the bankrupt. It is possible within the normal course of prison procedure for an individual to be moved from time to time. The prison will refer to the bankrupt as an "inmate" and when telephoning you should ask first for the discipline office to establish that the prisoner is still resident and then ask for the "special visits unit" to make an appointment. In the event of encountering any difficulty, ask to speak to a governor or an assistant governor, who will be able to deal with or pass on the enquiry to the correct section within that particular prison. Once connected you should clearly identify yourself and your authority, and explain the inmate’s duty to co-operate. The length of the prison sentence given should be checked and any expected date of release should be obtained, together with details of any parole that may have been granted. If parole has been granted and the bankrupt released from custody, the address given by the bankrupt under the terms of his/her parole should be obtained. The relevance of the release date is that, due to the nature of criminal bankruptcies, it is possible that the bankrupt will "go to ground". Therefore if his/her release date is imminent, efforts should be made to interview immediately.
It should be noted that use of mobile phones by prisoners is prohibited and under no circumstances should the prisoner be contacted within a prison by calling a mobile phone. Where a prisoner makes contact from within a prison and it is established that he/she is using a mobile phone the caller should be informed that they are committing an offence and that any such calls will not be accepted. The call should then be terminated.
35.21 Police report and other sources of information
The official receiver will normally be able to obtain through the Official Petitioner the "police report" which is prepared when the prosecution is initially considered. The official receiver is not allowed to copy this document and should not hold it longer than six months. It is a highly confidential document and should always be kept in a security cabinet. No part of it should be disclosed or even intimated to the bankrupt or other parties. If at all possible it is preferable to read this report before interviewing the bankrupt. The examiner should also contact the police office or investigating officer (e.g. the HMRC investigating officer) who dealt with the prosecution case. They may have information (which may also be highly confidential) and/or exhibits that will be of assistance to the official receiver.
35.22 Inspections and police attendance
You are unlikely to obtain any co-operation from the bankrupt if the inspection upsets any member of his/her family, causing him/her to feel threatened and unable to intervene to protect his/her family whilst imprisoned. Therefore it is ill-advised to undertake inspections (or send out an inspector) until the bankrupt has been interviewed and told about the inspection. Contact at an early stage should be made with the solicitor that represented the bankrupt, to obtain any background information that he/she may be prepared to provide, in particular contact details for members of the family that may be needed for inspection purposes. It is unlikely that any element of surprise in an inspection will provide any assets of substance. The bankrupt will have "salted away" any assets should he/she have such an inclination. If the inspection of any of the bankrupt’s property is likely to prove hazardous you can, giving as much notice as possible, arrange for the police to attend by contacting the duty officer of the station local to the property concerned liaising, before hand, where necessary, with the investigating officer involved in the initial conviction.
If a prison governor specifically states that he/she is unable to guarantee safety during an interview, the file should be clearly marked accordingly and until that situation is resolved, any communication with the bankrupt should be by letter. Periodic enquiries should be made to verify the situation.
35.24 Arranging prison interview
Whenever arranging for an appointment it should be remembered that the prison system does not really allow for urgent interviews. There are fixed interview times within the prison regime, prison officers have to be available to escort inmates to and from the interview areas and in addition the bankrupt may have already had other interviews during that week from relatives or legal representatives. As a consequence the discipline office may try and restrict visits. The official receiver must exercise his/her discretion on how strongly he/she enforces the official receiver’s duty to investigate and the bankrupt’s duties to co-operate. Appointments made should be confirmed by letter addressed to the prison governor. If the interview is to take place urgently, the letter should be delivered by hand when attending. Any member of the official receiver’s staff attending at a prison should be prepared to produce to prison staff either official identification or a written authority from the official receiver.
35.25 Confirm bankrupt available for interview
The prison should be contacted on the day before attending an appointment to confirm that the bankrupt is still an inmate and has not been moved to another prison. This is of particular importance with regard to high security prisoners who are frequently moved without prior notice. Due to security risks the official receiver will not be told of any prisoner movement prior to them taking place.
35.26 Prison interviews - two members of official receiver’s staff to be present
A prison interview (or any interview) with a criminal bankrupt should be conducted with two members of the official receiver’s staff present. The examiner can either be accompanied by another member of staff from his/her own office or by arranging for a member of staff to be present from a local office where the local official receiver agrees and has staff available to assist.
35.27 Dealing with an "inmate"
It should be remembered that an inmate is likely to relate to a different psychological pattern to an average bankrupt during interviews. Specifically it is of limited value to encourage co-operation using the lever of a possible prison sentence if the bankrupt concerned is already serving a long sentence. Careful use of reference to his/her duties and adverse parole consideration could be of more use, but being seen as threatening may well be counter productive (see paragraph 35.30). The bankrupt will in many instances welcome company (even someone from the official receiver’s office!) to break the monotony of prison life. The bankrupt will also have plenty of time so could attempt to extend an interview unnecessarily.
35.28 Disclosure of information sources
If information is given to the official receiver from creditors, the public, or third parties he/she should not disclose the source of the information to the bankrupt and should be careful in disclosing knowledge of information as its nature may disclose, by implication, the source of the information. However, the usual conditions apply in such circumstances when information is offered to the official receiver, that no guarantee is given to the informant that the information will in any way be "privileged" and that the official receiver can give no form of undertaking. (See also chapter 47).
In each case where the "criminal bankrupt" is in prison a letter (see annex 2) should be sent to The Parole Unit, The Home Office, Abell House, John Islip Street, London SW1P 4LH, to give notice that a bankruptcy order has been made and to register the official receiver’s interest in the inmate’s conduct and co-operation within the insolvency proceedings.
If the bankrupt refuses to co-operate, even after reasoning by the official receiver, written warning of his/her duty to co-operate and the nature of his/her failure to do so should be given to the bankrupt. Any continued failure to co-operate should be put in writing to the Parole Unit, explaining the bankrupt’s duty to co-operate and the nature of his/her failure to do so, with a request that this breach of statutory duty (and any contempt of court) is considered within any parole procedure. If urgent notice of failure to co-operate is appropriate the "Person in charge of Registry" at the Parole Unit should be contacted by telephone on 020 7211 3000.
35.31 Preparing and verifying a statement of affairs
Where a statement of affairs is needed the official receiver should, where possible, ensure that it is completed by the bankrupt at interview, the examiner giving such assistance as is necessary.
Notes: [Form SABK]
In general the official receiver should ensure that prison visits are minimised to reduce costs to the estate. However, where necessary, sufficient time should be taken during interviews to obtain proper progress of the case. For example any narrative statement needed should be taken long hand and signed at the time rather than taking notes then having a statement typed up and sent back for signature. The bankrupt may well have reconsidered his/her position and changed his/her story by then and refuse to sign.
35.33 Production of prisoner for public examination
When a public examination is deemed necessary an application for production must be made by the official receiver by letter addressed to the Home Office, Prisons Department, Division P5 (Productions), Cleland House, Page Street, London SW1P 4LN (telephone 020 -7211-4677) setting out the facts and grounds for the application and the time, date and place at which the bankrupt is to be produced. The official receiver should also confirm that the costs of production will be met from the estate. As much notice as possible should be given.
The order for public examination to be served on the bankrupt must be sent to the prison governor with a covering letter requesting that he/she arrange service on the bankrupt.
Notes: [Form PEAO]
The expenses of bringing a bankrupt in custody to the court must be charged to the estate.
Notes: [R6.224(1)]
35.36 Maximum security risk inmates
Inmates are allocated varying security ratings. A prisoner who is graded with a security rating "A" will not be produced for public examination as that prisoner is considered a maximum security risk. A request should be made to the prison governor that the inmate’s file be clearly marked that notification be given to the official receiver of any intended release of that prisoner or if the security rating is down-graded to "B".
When the bankrupt’s conduct within the proceedings has been less than satisfactory, this should be referred to in the public examination (with emphasis being placed on the special difficulty that this causes the official receiver in a case where prison interviews are involved). Such matters can be referred to where necessary in the report that the official receiver is required to submit when the bankrupt applies for his/her discharge. The court may then discharge the bankrupt but suspend its effect.
Notes: [s289(2)] [s280(3)]
35.38 Requirement to answer questions
The bankrupt will be examined on oath and must answer all the questions that the court may put, or allow to be put, to him/her. Refusal to answer will be a contempt of court and be punishable accordingly. If further criminal proceedings have been instituted against the bankrupt or the proceedings relating to the criminal bankruptcy order are under appeal, the court may adjourn the examination where it considers that to continue may prejudice a fair trial of the criminal proceedings. However, where the official receiver urgently needs information which is unlikely to be obtained from other sources or by other means, the court should be asked to allow the examination to continue with the proviso that if a question is thought to be incriminating the court can allow the bankrupt to refuse to answer.
35.39 Official Petitioner can question at public examination
Where the Official Petitioner has petitioned for a bankruptcy order under section 264(1)(d) he/she may take part in any public examination of the bankrupt and notice of any public examination should therefore also be forwarded to the Official Petitioner.
Notes:[s290(4)(a)]
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