The Service has had to consider whether the legislation which it works under and the procedures it adopts to apply that legislation is at risk of being challenged for infringing a Convention right. Some areas of concern have been identified, e.g. that redirection of a bankrupt’s mail under section 371 of the Insolvency Act 1986 might infringe article 8 (the right to respect for private and family life, home and correspondence). An interference with this right is permitted if it can be justified as being in accordance with the law, proportionate and necessary in a democratic society for, amongst other things, the prevention of crime or for the protection of the rights of others.
It should be borne in mind that the official receiver or the trustee in bankruptcy only makes the application and it is the Court which makes the redirection order. The Court will have to decide on the circumstances of each case whether the purposes to be achieved by the redirection order are proportionate to the interference with the individual’s rights which will flow from it. It is appreciated that, in the majority of instances, postal redirection orders are used to discover information about bankrupts who have not surrendered to the proceedings, but any knowledge of undisclosed assets or suspected offences which the official receiver can include in his report to Court will assist in convincing the Court that it is justified in making the redirection order.
Where a bankrupt or company director fails to attend their Public Examination, it is practice to seek a warrant from the Court for their arrest. Article 5 of the Convention deals with the right to liberty, but permits the lawful arrest or detention of a person in stated circumstances. The arrest warrant is issued by the Court, who will be responsible for ensuring compliance with the Act.
The official receiver’s concern should be with his administrative procedures to ensure that, after arrest, the bankrupt or director is brought before the court at the earliest opportunity so that the court can order release or, in the event of continued non-co-operation, continuing detention.
When taking a decision which affects an individual, consideration should be given as to whether there are any Convention rights which might apply and whether the decision can be adequately justified in the light of Convention rights. If the official receiver has any doubts on this score, advice should be sought from Technical Section before the decision is implemented.
Because the Act is new, how and to what extent it might affect the operation of The Service is something that will only become fully apparent in time. This chapter will be updated in the light of experience of the operation of the Act.
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