17 June 2019
Jersey's Attorney General, Mr Robert MacRae QC, has been successful in a landmark case before the Judicial Committee of the Privy Council which has upheld the Attorney General’s powers to obtain documents by compulsion in circumstances where serious or complex fraud is suspected.
Today, in a judgment delivered by Lord Reed, Jersey’s final appellate court dismissed the appeal by Volaw Trust and Corporate Services Limited who had claimed that producing such documents violated its privilege against self-incrimination protected by Article 6 of the European Court on Human Rights.
Volaw had refused to provide documents in relation to the group of companies and trusts administered by Volaw and connected with Mr Berge Gerdt Larsen (a Norwegian businessman involved in the oil and gas industry) which the Attorney General required be produced pursuant to a notice served in 2015 under the Investigation of Fraud (Jersey) Law 1991 (“the 1991 Law”).
The Judicial Committee decided that the service by the Attorney General of a notice under the 1991 Law seeking mandatory disclosure of documents was consistent with Article 6 of the European Convention on Human Rights.
The Court also dismissed the related appeal by Volaw against decisions taken in 2014 by the Comptroller of Taxes seeking disclosure of similar documents under the tax information exchange agreement (TIEA) between Jersey and Norway.
The Comptroller had required the production of documents concerning the companies administered by Volaw related to Mr Larsen. Volaw had sought to prevent the exchange of the tax information with Norway claiming an infringement to a privilege not to incriminate itself. Volaw and Mr Larsen had also challenged the lawfulness of the Regulations made under the Taxation Implementation (Jersey) Law 2004 which give effect to Jersey’s international obligations under TIEAs.
Advocate Howard Sharp QC of Ardent Chambers (and formerly Her Majesty’s Solicitor General) appeared as Counsel for the Attorney General and the Comptroller of Taxes at the two-day hearing in November 2018, presenting the case to a panel that had exceptionally been augmented to seven justices (as opposed to the usual five) in view of the significance of the issues to be determined.
Jersey’s Attorney General, Mr Robert MacRae QC, said: "I welcome the successful outcome in these long-running proceedings which upholds the legality of our statutory framework in Jersey. This framework gives effect to our international obligations as a global finance centre to assist other countries in combatting fraud and financial crime, such as money laundering and tax evasion.
"The Privy Council has confirmed the powers of the Attorney General and the Comptroller of Taxes to compulsorily require the production of pre-existing documents where it is suspected that serious or complex fraud may have been committed or where information relevant to the administration or enforcement of the tax laws of a partner jurisdiction is held in Jersey.”