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TMI Blog1970 (6) TMI 42X X X X Extracts X X X X X X X X Extracts X X X X ..... td. as at December 31, 1963, and it was alleged that the first defendant knew that it was false in that the value of subsidiary companies was stated to be in excess of 213,000. Count 3 alleged a similar offence to count 2 against the second defendant. Count 4 alleged that both defendants had attempted fraudulently to induce persons to offer to enter into agreements for subscribing for securities, contrary to section 13 (1) ( a ) of the Prevention of Fraud (Investments) Act, 1958; the securities being non-voting "A" ordinary shares of 1s. each in Bylock Electric Ltd. The trial before MacKenna J. and a jury began on April 9, 1970, and both defendants were acquitted on all charges. During the trial, the prosecution sought to prove the first defendant's answers made when examined under section 167 (2) of the Companies Act, 1948, in 1964. The judge granted leave but reserved his reasons for doing so until June 9, 1970. The case is reported solely on the question whether the first defendant's answers were admissible in evidence., June 9. MacKenna J. read the following ruling.In 1964 Mr. Harris was examined under section 167 (2) of the Companies Act, 1948, by inspectors appointed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ms : "(4) If an inspector thinks it necessary for the purpose of his investigation that a person whom he has no power to examine on oath should be so examined, he may apply to the court and the court may if it sees fit order that person to attend and be examined on oath before it on any matter relevant to the investigation, and on any such examination ( a ) the inspector may take part therein either personally or by solicitor or counsel; ( b ) the court may put such questions to the person examined as the court thinks fit ; ( c ) the person examined shall answer all such questions as the court may put or allow to be put to him, but may at his own cost employ a solicitor with or without counsel, who shall be at liberty to put to him such question;; as the court may deem just for the purpose of enabling him to explain or qualify any answers given by him ; and notes of the examination shall be taken down in writing, and shall be read over to or by, and signed by, the person examined, and may thereafter be used in evidence against him". I omit the proviso to this subsection which is immaterial. Before 1967 the question of the admissibility of answers given under section 167 (2) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Appeal in 1856 in Reg. v. Scott [1956] Dears. B. 47. As the judgments of the majority of the court in that case are my principal reason for accepting the prosecution's first argument 'in the present case, I shall deal with them at a little length, first quoting the relevant statutory provision. Section 117 of the Act of 1849 was in these terms : "That the court may summon any bankrupt before it,...and upon the appearance of such bankrupt, or if such bankrupt be present at any sitting of the court, it shall be lawful for the court to examine such bankrupt after he shall have made and signed the declaration contained in the schedule W. to this Act annexed, either by word of mouth or on interrogatories in writing, touching all matters relating to his trade, dealings, or estate, or which may tend to disclose any secret grant, conveyance, or concealment of his lands, tenements, goods, money, or debts, and to reduce his answers into writing, which examination so reduced into writing the said bankrupt shall sign and subscribe". It was held by the Court of Criminal Appeal, Lord Campbell C.J., Alderson B., Willes J. and Bramwell B., Coleridge J. dissenting, that the answers g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accuse himself. The maxim relied upon applies to the time when the question is put, not to the use which the prosecutor seeks to make of the answer when the answer has been given. If the party has been unlawfully compelled to answer the question, he shall be protected against any prejudice from the answer thus illegally extorted ; but a similar protection cannot be demanded where the question was lawful and the party examined was bound by law to answer it. At the trial the defendant's written examination, signed by himself, was in court, and the reading of it as evidence against him could be no violation of the maxim relied upon. The only argument, as we conceive, that can plausibly be put for the defendant is that there is an implied proviso to be subjoined to section 117, viz. 'that the examination shall not be used as evidence against the bankrupt on any criminal charge.' To make it evidence there could be no necessity for any express enactment for that purpose, and an implied proviso appears all that can be contended for. But by this interpolation we may be more likely to defeat than to further the intention of the legislature. Considering the enormous frauds practised by ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intend that answers given by officers or agents should be admissible against them. The history of section 167(2) and (4) makes it difficult to attribute this odd intention to the legislature. I say odd, for it would be surprising if the legislature wished to make it easier for the fraudulent officer or agent to escape conviction than for other persons. Section 109 of the Companies Act, 1908, is a predecessor of section 167 of the Act of 1948. Section 109(4) gives inspectors the same power of examining officers and agents of a company on oath as they have under section 167(2) of the later Act. But there is no provision in section 109 or elsewhere in the Act of 1908, for the examination of persons other than officers or agents. There is no provision such as Section 167(4). The case is the same in the Companies Act, 1929. Section 135(4) of that Act reproduces section 109(4) of the earlier Act, but again the Act makes no provision for the examination of other persons. That provision is made for the first time in section 42(4) of the Companies Act, 1947, which is in the same words as section 167(4) of the Act of 1948. On this history I would argue thus : I must give the same meaning t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case ( supra ) the notes of examination had not been read over to or signed by the debtor, and therefore could not be used in evidence against him at his subsequent trial. Instead the shorthand writer was called to give oral evidence of the debtor's answers, and the question was whether that evidence was admissible, or whether section 17(8) excluded the ordinary mode of proof. It was held that it did not, and that the evidence was admissible. This was the reason given by Lord Russell of Killowen C.J., at page 269 : "I regard the statutory provision, therefore, as one intended to provide only for the most authentic way of presenting to the court the statements made, but not at all as intending to exclude all other modes of giving evidence of statements made by the defendant in the course of his examination. We cannot give effect to the objection made without construing the statute as if it had said which it does not that the authenticated examination shall alone be received as evidence of the statements so made. If, then, this view is correct, is there any rule of law by which this evidence should be excluded ? I know of none. I take the general rule to be (apart from any expre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at page 816 : "If a demand for information is made in the proper manner, the trader is bound to answer the demand within the time and in the form required, whether or not the answer may tend to incriminate him, and, if he fails to comply with the demand, he can be prosecuted. If he answers falsely he can be prosecuted for that and if he answers in such a manner as to incriminate himself I can see no reason why his answer should not be used against him. Some statutes expressly provide that incriminating answers may be used against the person who gives them and some statutes expressly provide that they may not. Where, as here, there is no such express provision the question whether such answers are admissible evidence must depend on the proper construction of the particular statute. Although I need not decide the point, it seems to me to be reasonably clear that incriminating answers to a proper demand under this section must be admissible if the statutory provision is to achieve its obvious purpose". Professor Cross says much the same in his book, at page 233 : "It seems that, if information has been lawfully obtained pursuant to statutory provisions and there is no express re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nge was made and the new law only to subsequent transactions. But where the change is in the rules of procedure or the law of evidence, the new law is applied in both cases. Whether this is to give statutes about procedure and evidence retrospective effect, as Lord Blackburn said in Gardner v. Lucas [1878] 3 App. Cas. 582, 603 or whether these statutes are construed as giving directions to the court about its mode of hearing all future cases and are in that sense not retrospective at all, as Harman L.J. said in Blyth v. Blyth and Pugh [1965] P. 411, 430 is a difference of words only. However the matter is expressed, we have Lord Blackburn's authority in Gardner's case ( supra ) for holding that the rule is the same both for criminal and civil cases, at page 603 : "...where alterations are made in matters of evidence, certainly upon the reason of the thing, and I think upon the authorities also, those are retrospective, whether civil or criminal". I have been referred to criminal cases since Lord Blackburn's time, none of them very like the present case, in which the rule was applied as he stated it. No doubt the rule, like most of our rules, is subject to except ..... X X X X Extracts X X X X X X X X Extracts X X X X
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