“In summary, the defence submits that the attempt by the Lithuanian Prosecutor General to extradite Mr. Antonov and Mr. Baranauskas is politically motivated. The Lithuanian government took groundless steps to bring down a solvent, functioning bank for reasons of self-interest and, having done so, was compelled to make scapegoats of the bank’s figureheads via unfounded allegations of fraud and financial mismanagement.”
“68. The Court recalls that, although not specifically mentioned inArticle 6 of the Convention , the right to silence and the right not to incriminate oneself, are generally recognised international standards which lie at the heart of the notion of a fair procedure under Article 6. Their rationale lies, inter alia, in the protection of the accused against improper compulsion by the authorities thereby contributing to the avoidance of miscarriages of justice and to the fulfilment of the aims of Article 6.38 The right not to incriminate oneself, in particular, presupposes that the prosecution in a criminal case seek to prove their case against the accused without resort to evidence obtained through methods of coercion or oppression in defiance of the will of the accused. In this sense the right is closely linked to the presumption of innocence contained inArticle 6(2) of the Convention . 69. The right not to incriminate oneself is primarily concerned, however, with respecting the will of an accused person to remain silent. As commonly understood in the legal systems of the Contracting Parties to the Convention and elsewhere, it does not extend to the use in criminal proceedings of material which may be obtained from the accused through the use of compulsory powers but which has an existence independent of the will of the suspect such as, inter alia, documents acquired pursuant to a warrant, breath, blood and urine samples and bodily tissue for the purpose of DNA testing. In the present case the Court is only called upon to decide whether the use made by the prosecution of the statements obtained from the applicant by the Inspectors amounted to an unjustifiable infringement of the right. This question must be examined by the Court in the light of all the circumstances of the case. In particular, it must be determined whether the applicant has been subject to compulsion to give evidence and whether the use made of the resulting testimony at his trial offended the basic principles of a fair procedure inherent in Article 6(1) of which the right not to incriminate oneself is a constituent element. 38 See MURRAY v UNITED KINGDOM and FUNKE v FRANCE, loc. cit.”
“The principle is, I think, a thoroughly healthy one. It serves the important purposes of encouraging persons who are making ex parte applications to the court diligently to observe their duty to make full disclosure of all material facts and to deter them from any failure to observe this duty, whether through deliberate lack of candour or innocent lack of due care. Nevertheless, the nature of the principle, as I see it, is essentially penal and in its application the practical realities of any case before the court cannot be overlooked. By their very nature, ex parte applications usually necessitate the giving and taking of instructions and the preparation of the requisite drafts in some haste. Particularly, in heavy commercial cases, the borderline between material facts and non-material facts may be a somewhat uncertain one. While in no way discounting the heavy duty of candour and care which falls on persons making ex parte applications, I do not think the application of the principle should be carried to extreme lengths. In one or two other recent cases coming before this court, I have suspected signs of a growing tendency on the part of some litigants against whom ex parte injunctions have been granted, or of their legal advisers, to rush to the Rex. v. Kensington Income Tax Commissioners [1917] 1 K.B. principle as a tabula in naufragio, alleging material non-disclosure on sometimes rather slender grounds, as representing substantially the only hope of obtaining the discharge of injunctions in cases where there is little hope of doing so on the substantial merits of the case or on the balance of convenience.”
“193 … The principal question is not whether the order was obtained as a result of the misrepresentation or non-disclosure but whether the information not disclosed was material to be taken into account in deciding whether or not to grant relief without notice and if so on what terms: see eg Dormeuil Frères SA v Nicolian International (Textiles) Ltd[1998] 1 WLR 1362 , 1368. Once that question is answered in the affirmative, once comes to the consequential question whether the order made ought to be discharged. The judge accepted the SFO’s submission that the restraint order would have been made even if there had been disclosure of the Antiguan proceedings, but that was to go straight to the consequential question. There could only be one answer to the question whether that non-disclosure was material: it was. The judge did not address separately the treatment of urgency and the civil freezing order, but those too involved material failings of candour.”
“The duty to disclose applies to matters known to the applicant or his agents, or matters which they would have known, had they made all the inquiries which should reasonably have been made prior to the application.”
“There have been freezing orders made in Lithuania, which has extended to Latvia, and in Switzerland” and whilst this was not a precise description (since the order had originally been made in Latvia rather than having been “extended” from Lithuania) nonetheless the existence of the order had been brought to his attention. The complaint “The Swiss Freezing Order was not shown to the Court. It was in an exhibit but not drawn to the Court’s attention, other than by passing reference in oral submissions.”
“… there are reasonable grounds to assume that in the context of this criminal case a civil claim might be lodged or confiscation of property ordered.”
“a) Mr. Cooper had stated in his affidavit in support of the ex parte application that the Insolvency proceedings were based on a report of Mr. Freakley, but, in fact, Mr. Freakley’s subsequent affidavit showed that Mr. Freakley had made no decision on solvency; b) there was no disclosure of the fact that, as Mr. Freakley subsequently stated, the Central Bank was alleging fraud against Mr. Antonov from the outset; c) there was no disclosure of the fact that, as Mr. Freakley subsequently stated, it was the Central Bank that made decisions as to nationalization and commencement of insolvency proceedings and he had no significant role: d) there was no disclosure of the fact that Oliver Wyman and Central Bank had had a plan to nationalize the Bank as early as27 October 2011 ; and that criminal proceedings against Mr. Antonov had commenced even before Mr. Freakley had been appointed; e) there was no disclosure of the unlawful nature of the nationalization, which was subject to retrospective legislation.”
“some situations … cry out – as a matter of justice to plaintiffs – for disclosure orders and Mareva injunction type injunctions covering foreign assets of the defendants even before judgment.” and Parker LJ in Derby & Co Ltd v Weldon[1990] 1 Ch 48 at 57: there is every justification for an injunction where: “… the defendants are clearly sophisticated operators who have amply demonstrated their ability to render assets untraceable and a determination not to reveal them.”
“… any piece of information or evidence on which the prosecution might wish to rely in establishing guilt”, vii) but also in relation: “… to any piece of information or evidence on which the prosecution would wish to rely in making its decision on whether to prosecute or not”; in other words, the privilege applied not merely to prevent the deployment of self-incriminatory evidence in proceedings, but also the use of such information in the course of a criminal investigation. It may be that a similar assumption was made in Rottmann v Brittain[2010] 1 WLR 67 (CA) at paragraph 14, although, in that case the Court considered that the safeguards that had been put in place in the context of a private examination of a bankrupt, adequately protected the bankrupt’s Convention rights in any German criminal proceedings. viii) The Court should assume that the court of another Member State which is a signatory to the Convention will comply with the requirements of the Convention: see Rottmann v Brittain (supra). In that case, the court rejected a claim to rely on the privilege against self-incrimination in the context of an examination of a bankrupt and parallel criminal proceedings in Germany; at paragraph 16, Ward LJ stated: “14 Here the judge has sought to alleviate the possibility of harm to the bankrupt by directing that the hearing take place in private with a judge of the High Court having control over the release of the transcripts. The applicant contends that this is insufficient protection, because the biggest creditor in the financial fiasco in Germany is a trust company which is in fact a part of the German Finance Ministry, or at least has the closest possible links to the Finance Ministry, and it is the body which filed the complaint against him and provided the evidence upon which the German authorities had relied in bringing the criminal proceedings against him. He submits that this trust company will inevitably pass to the German prosecution all the material that is made available in the bankruptcy proceedings in England. Even if the prosecutor does not make use of the actual transcript, the nature of the questions that had been asked and the answers that had been given will enable the prosecutor to gain unfair advantage over him in those criminal proceedings, and that, he submits, works to his considerable disadvantage. I regret I do not agree. The bankruptcy court has control over the use to be made of these proceedings since they are proceedings in private. It will, I believe, be a contempt of court to reveal the information in chambers without permission of the court. The fears of the bankrupt are in my judgment unfounded. 15 He submits that in this case the protection given under section 14 of the Civil Evidence Act of 1968 is incompatible now with the guarantee under Article 6. Section 14 provides: ‘(1) The right of a person in any legal proceedings other than criminal proceedings to refuse to answer any question or produce any document or thing if to do so would tend to expose that person to proceedings for an offence or for the recovery of a penalty- (a) shall apply only as regards criminal offences under the law of any part of the United Kingdom and penalties provided for by such law’ 16 In so providing the Act is reflecting the law which I have already recited. It seems to me to be fully in accord with the European Convention law, and therein lies what seems to me Mr Rottmann's greatest difficulty. It is in my judgment for the English court to control proceedings before the English court. It is for the judge dealing with the bankruptcy matter to exercise his discretion in allowing or not allowing incriminating questions to be put to and to be answered by Mr Rottmann. But such use as may be made of those answers in Germany is a matter for the German court to control. Germany is a signatory to the Human Rights Convention . The German court will, we must assume, and I assume it without any doubt at all, consider any objection to the use of the transcript which may be made by Mr Rottmann should he ever stand his trial in Germany. That consideration would be by reference to the case of Saunders v United Kingdom, of which Germany no doubt will take full and due and proper notice. It is for the German court to control its proceedings and not for this court to be further concerned about the hypothetical use that may be made in that jurisdiction. The judge, if I may so, bent over backwards to protect Mr Rottmann by acceding to his request that the examination should not be a public examination, that it should be conducted in private. In doing so the judge was exercising the discretion he had under rule 6.175(6). In order to upset his conclusion, Mr Rottmann has to show that he exceeded the generous ambit within which there is reasonable room for disagreement. Far from the judge making any error in the exercise of his discretion, I can see no fault made by him whatsoever.” ‘(1) The right of a person in any legal proceedings other than criminal proceedings to refuse to answer any question or produce any document or thing if to do so would tend to expose that person to proceedings for an offence or for the recovery of a penalty- (a) shall apply only as regards criminal offences under the law of any part of the United Kingdom and penalties provided for by such law’ ix) As a general rule, principles of comity require cogent evidence before an English court can or will conclude that there is a risk that justice will not be done in a foreign court: see Altimo Holdings v Kyrgyz Mobil Tel Ltd[2012] 1 WLR 1804 at paragraphs 89-102. This is particularly so where the foreign country is an EU member and signatory to the Convention: see the extradition cases of Ruiz Jaso v Central Court of Criminal Proceedings No5 of the National Court, Madrid[2007] EWHC 2983 (Admin) ,[2008] 1 WLR 2798 ; Symeou v Public Prosecutor’s Office, Patras, Greece[2009] 1 WLR 2384 at paragraph 66; Targosinski v Poland[2010] EWHC 1820 (Admin) at paragraphs 5-11. x) Even if the court concludes that there is a real risk of prejudice, that fact in itself should not necessarily excuse the defendant from providing disclosure of his assets. The Court is entitled to take into account whether measures can be put in place which will sufficiently reduce the risk of self-incrimination in practice: see, for example, Credit Suisse Trust v Cuoghi[1998] QB 818 at 830E-F (per Millett LJ) and 833E (per Lord Bingham of Cornhill CJ). In Ablyazov (where the submissions made by the Defendant regarding the risk to his interests if disclosure was ordered were similar to those made by Mr. Antonov), Teare J noted that, although there was a risk of self-incrimination and prejudice to the defendant, such matters were outweighed by the fact that: a) disclosure was only to be made (at least until the return date) to the claimant’s solicitors and counsel; b) the Claimant was seeking proprietary remedies; c) the Claimant had given undertakings not to use any information obtained as a result of the order for the purposes of civil or criminal proceedings in England or any other jurisdiction other than the claim; d) the Claimant was subject to the implied undertaking that it would not use documents received in the course of the action other than for the purposes of the action; e) there was a possibility of policing the undertaking by way of sequestration of the claimant’s assets held in England; and f) the Defendant had not identified grounds for suggesting that the claim brought was not a good claim. It is to be noted that the Court of Appeal upheld the decision of Teare J on the basis that he considered the relevant factors and reached a decision that he was entitled to reach albeit that (in the absence of Particulars of Claim, and where there had been delay in making the application) the failure to identify any defence to the claims was thought to be a factor which was not entitled to much weight (per Pill LJ at paragraphs 27 and 28). Pill LJ noted at paragraph 27 that: “On the evidence available to him, he was entitled to attach considerable weight to the need for a disclosure provision to make this freezing order effective”
“The jurisdiction of English courts to order persons within its jurisdiction to provide oral or documentary evidence in aid of proceedings in foreign courts has always been exclusively statutory.” ii) If the court is satisfied that evidence provided by Mr. Antonov can be obtained by foreign prosecuting authorities and used in foreign criminal proceedings, then it must consider whether an order requiring such disclosure would undermine the protections set out in the 2003 Act. iii) The Divisional Court has recently held in the context of orders for disclosure based on the exercise of the Norwich Pharmacal jurisdiction (which often overlaps with the Mareva injunction jurisdiction): Omar v Secretary of State for Foreign and Commonwealth Affairs[2012] EWHC 1737 (Admin) at paragraph 64. “… the power of the courts to use Norwich Pharmacal proceedings must, in our view, be developed within the confines of the existence of the statutory regime through which evidence in proceedings overseas must be obtained. Norwich Pharmacal proceedings are not ousted, but where proceedings, such as the present proceedings, are brought to obtain evidence, the court as a matter of principle ought to decline to make orders for the provision of evidence, as distinct from information, for use in overseas proceedings. It cannot permit the statutory regime, with the safeguards to which we have referred, and will refer in more detail, to be circumvented.”