Part 1 – Public examinations generally
14.1 Uses of examination
The two principal uses for a public examination are as a means to enforce co-operation (bankruptcy only) and as an aid to the official receiver’s inquiries.
Section 59 and Schedule 3 of the Youth Justice and Criminal Evidence Act 1999 gives statutory effect to the decision of the European Court of Human Rights in the case of Saunders v UK1997 BCC 872 and restricts the use that may be made in criminal prosecutions of evidence obtained under compulsory powers including that obtained in a public examination to:
Guidance concerning when a public examination should be used is given in chapter 13 - Co-operation, non co-operation and enforcement of the duty to co-operate.
A public examination should not be regarded as an automatic alternative to obtaining initial information by way of interview. The official receiver should also make proper use of his powers to requisition accounts and further information where this is likely to provide the details necessary for the purpose of his inquiries (see chapter 13).The official receiver should remind potential examinees of their duty to co-operate where such non-compliance is the reason for the public examination - see paragraph 14.2 below.
Following the decision in Re Wallace Smith Trust Co Ltd 1992 BCC 707 where a winding-up order has been made, the public examination should not be used solely as a means to obtain enforcement orders. An application for public examination should only be made where there is a genuine intention to question that person.
Where it is considered that a public examination is appropriate, the fact that its cost may result in a debit balance on the estate account should not prevent its being held.
Before fixing a public examination at least three attempts must have been made to arrange, and advise the officer or bankrupt of the need to attend for interview.
When an examination is being considered because of non co-operation the official receiver should write to the potential examinee advising him of the possibility of a public examination and that notice of the examination may be given by public advertisement.
Notes: [r4.212(3)] [r6.172(4)]
Where the examination is to be fixed to enforce attendance, if the examinee has previously received written warning of the possibility of public examination, in letters fixing appointments, it is not necessary to send an additional warning letter.