Annex D

R. v Brady (Paul Clement)

Court of Appeal (Criminal Division)

22 June 2004

Case Analysis

Where Reported

[2004] EWCA Crim 1763; [2004] 1 W.L.R. 3240; [2004] 3 All E.R. 520; [2005] B.C.C. 357; [2005] 1 Cr. App. R. 5; [2004] B.P.I.R. 962; [2005] Crim. L.R. 224; (2004) 101(29) L.S.G. 29; (2004) 148 S.J.L.B. 1149; Times, July 9, 2004; Official Transcript

Case Digest

Subject: Criminal procedure Other related subjects: Insolvency

Keywords: Cheating the Revenue; Criminal investigations; Disclosure; Official Receiver

Summary: cheating the Revenue; criminal investigations; Official Receiver's investigation into insolvent companies; disclosure of material by Official Receiver to Revenue

Abstract: The appellant (B) appealed against his conviction for three offences of cheating the Revenue, to which he had pleaded guilty after the judge had rejected his application to stay the prosecution as an abuse of process. B had been involved in a succession of insolvent companies that were alleged to have cheated the Revenue of very substantial amounts of Pay As You Earn and National Insurance contributions in respect of their employees. During an investigation by the Official Receiver attached to the court which wound up the companies, statements were taken from B and others. The Official Receiver had taken those statements in accordance with his powers under the Insolvency Act 1986 s.235. He then disclosed them to the Revenue, at the latter's request. B contended that (1) the disclosure was unlawful and an abuse of process which should have caused the judge to stay the proceedings; (2) the abuse of process was such an affront to justice that his guilty plea was not a bar to an appeal against conviction.

Held, dismissing the appeal, that (1) the purpose of the Official Receiver's statutory investigatory powers included the identification of potential criminal conduct or other misconduct, and the taking of appropriate steps in relation to it by criminal prosecution or disqualification by the Department of Trade and Industry. Since one of the purposes for which the material obtained under s.235 was the investigation of crime, it would be anomalous if that material could be used by the DTI for any criminal investigation it might undertake but not by any other prosecuting authority interested in the same material, unless some elaborate balancing exercise were carried out or the sanction of the court were obtained on notice to the person who provided it. Once the DTI or the Official Receiver was satisfied that s.235 material was required by another prosecuting authority for the purpose of investigating crime, they were free to disclose it without an order of the court or notice to the person who provided it. It was self evidently in the public interest that the appropriate prosecuting authority should have such material to aid its investigation. In the instant case, the disclosure to the Revenue of the s.235 material was lawful and did not involve an abuse of power. (2) And even if there had been an abuse of power, it would not have rendered the prosecution an affront to justice, R. v Mullen (Thomas) [2000] Q.B. 520 CA (Crim Div) considered.

Judge: Tuckey, L.J.; Douglas Brown, J.; Hedley, J.

Counsel: For the appellant: John Aspinall QC. For the Crown: Richard Sutton QC. For the interested party the Department of Trade and Industry: Malcolm Davis-White QC 

Solicitor: For the Crown: Inland Revenue Solicitor. For B: Registrar of Criminal Appeals. For the interested party: Department of Trade and Industry Solicitor 

 

Significant Cases Cited

R. v Mullen (Nicholas Robert) (No.2) [2000] Q.B. 520; [1999] 3 W.L.R. 777; [1999] 2 Cr. App. R. 143; [1999] Crim. L.R. 561; Times, February 15, 1999; (CA (Crim Div))

R. v Mullen (Thomas) [2000] Q.B. 520; [2000] Crim. L.R. 873; (CA (Crim Div))

 

Legislation cited

Insolvency Act 1986 (c.45) s.132

Insolvency Act 1986 (c.45) s.218

Insolvency Act 1986 (c.45) s.218(1)

Insolvency Act 1986 (c.45) s.218(3)

Insolvency Act 1986 (c.45) s.218(4)

Insolvency Act 1986 (c.45) s.234(1)

Insolvency Act 1986 (c.45) s.235

Insolvency Act 1986 (c.45) s.236

Insolvency Act 1986 (c.45) s.354(3)

Insolvency Act 1986 (c.45) s.399

Insolvency Act 1986 (c.45) s.433

Insolvency Act 1986 (c.45) s.433(2)

Insolvency Rules 1986 (SI 1986 ) Art.6

Insolvency Rules 1986 (SI 1986 ) Part 9

Insolvency Rules 1986 (SI 1986 1925) r.9

Youth Justice and Criminal Evidence Act 1999 (c.23) s.59

 

Journal Articles

Evidence: whether Official Receiver might disclose information gathered under s.235 of the Insolvency Act 1986 to investigating and prosecuting authority such as Inland Revenue Company officers; Confidential information; Criminal investigations; Disclosure; Official Receiver; Right to respect for private and family life. Crim. L.R. 2005, Mar, 224-227

Official receiver entitled to disclose material to prosecuting authority Company officers; Confidential information; Disclosure; Investigations; Official Receiver; Winding up. J.P. 2004, 168(28), 526

 

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