K, R. v

Lord Justice Moore-Bick :

This is an appeal against a number of rulings made by His Honour Judge Karsten Q.C. in the course of a preparatory hearing held pursuant to section 29(1) of the Criminal Procedure and Investigations Act 1996 . The appellant, K, was originally charged on an indictment containing four counts of cheating the public revenue. The Crown now accepts that it does not have sufficient evidence to proceed on counts 1 and 2, which are therefore no longer being pursued. Counts 3 and 4 charge K with failing to account for income tax and capital gains tax in relation to income received in and gains accruing upon funds held in various banks in Switzerland and Liechtenstein.

In February 1978 K married his wife S. Unfortunately, the marriage broke down, the parties separated in January 2000 and in July that year Mrs. K petitioned for divorce. Each party was represented by solicitors who were highly experienced in family proceedings: K by Mr. Raymond Tooth of Sears Tooth and Mrs. K by Mr. Richard Parry of Farrer & Co. On 31 st January 2001 Mrs. K gave notice of her intention to proceed with her application for ancillary relief, thereby giving rise to an obligation on both parties to give disclosure of their financial means.

After some delay K served his Form E on 29 th October 2001. In it he disclosed the existence of various accounts and investment portfolios in Switzerland and Liechtenstein, including an account at Cantrade Private Bank, Zurich into which he had received payments described as “commission”. It was clear from some of the entries in his Form E that the information it contained was not complete. Later that day there was a meeting between the solicitors at the offices of Farrer & Co. at which K was present. The purpose of that meeting and the basis on which it was conducted are in dispute and it will be necessary to examine both questions in greater detail later in this judgment. For the moment it is sufficient to say that, although it is common ground that part of the meeting was held on a “without prejudice” basis, the Crown contends that part was not and that in the course of what we shall call the “open” part of the meeting K made admissions that it seeks to adduce in evidence against him at the trial. In the course of a meeting on 29 th April 2002, which the judge found (and the Crown accepts) was held on a “without prejudice” basis, he made further admissions which tended to implicate him in tax evasion upon which the Crown al