[1912]	251
2 K.B.

[KING'S BENCH DIVISION]

In re ATHERTON.

1912 March 28.

PHILLIMORE J.

Bankruptcy - Debtor under Arrest - Fugitive Offender - Public Examination - Questions tending to criminate - Practice - Bankruptcy Act, 1883 (46 & 47 Vict. c. 52), ss. 17, 69 - Bankruptcy Act, 1890 (53 & 54 Vict. c. 71), ss. 8, 27.

A debtor, who is in custody or under remand on a criminal charge, is bound at his public examination in bankruptcy to answer all such questions touching his conduct, dealings, and property as the Court may put or allow to be put to him, even although the answers may incriminate him; and the scope of the inquiry is not limited by ss. 17 and 69 of the Bankruptcy Act, 1883, to offences under s. 11 of the Debtors Act, 1869, or in connection with his bankruptcy, but extends to all matters which the Court may take into consideration under s. 8 of the Bankruptcy Act, 1890, on the application for his discharge.

The usual practice of not pressing such questions in relation to the alleged offence while the criminal charge is hanging over the debtor, but of adjourning the public examination until after the trial, is only a rule of convenience.

THIS was a matter arising on the public examination of the debtor and referred by the registrar to the judge for directions in these circumstances.

On February 27, 1912, the debtor presented his own petition in the Chester County Court on which a receiving order was

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made on March 2, and the same day he was adjudicated bankrupt. His public examination was fixed for March 27.

A few days before the receiving order the debtor had been arrested in London under the Fugitive Offenders Act, 1881, on a criminal charge by his late employers, the Dominion Express Company of Canada, and was under remand at Brixton Gaol pending proceedings before a magistrate at Bow Street for his extradition to Canada. It was alleged that he had been entrusted by his late employers with a large number of postal orders and cheques and had forged the signatures and converted the proceeds to his own use.

The public examination of the debtor was held at the London Bankruptcy Court under the provisions of s. 118 of the Bankruptcy Act, 1883, and the debtor was examined by Mr. Hugh-Jones, the official receiver of the Chester County Court. In the course of the examination the official receiver proposed to put the following question to the debtor:- "Were you entrusted by the Dominion Express Company on your last voyage to England with a large quantity of money orders and cheques?" The registrar allowed the question, but the debtor refused to answer it on the ground that he was under remand in respect of extradition proceedings which related to his connection with the company. Thereupon the registrar adjourned the public examination to April 1, and reported the debtor's refusal to the judge, stating that the practice in London was, when a bankrupt was in custody or under remand on a criminal charge, not to press such questions while the charge was hanging over him, but to adjourn the public examination until after the trial; and that such practice could not be followed in the present case owing to the possibility of the bankrupt being removed to Canada. The official receiver was willing to undertake that the answers given in the public examination should not be used in the extradition proceedings.

The matter now came before the judge.

Macaskie, for the debtor. When a debtor is under arrest on a criminal charge he ought not to be compelled to answer questions which may cause his conviction. On the true

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construction of ss. 17 and 69 of the Bankruptcy Act, 1883, the wide powers of examination given to the official receiver in relation to offences are confined to matters arising under s. 11 of the Debtors Act, 1869, or to felonies or misdemeanours in connection with his bankruptcy which the Court would have to take into consideration under s. 8 of the Bankruptcy Act, 1890, on his application for his discharge: In re Hedley. (1) But with respect to offences that do not come within the scope of those enactments it is submitted that the debtor is entitled to rely on the legal maxim that a man is not bound to criminate himself. Here the alleged offence is not connected with his bankruptcy.

[PHILLIMORE J. Do not the last words in sub-s. 1 of s. 69 entitle the Court to investigate an alleged offence outside the Debtors Act, 1869, if it would affect the decision of the Court in refusing, suspending, or qualifying the discharge?]

That might be so if the offence concerned the debtor's property, but here the cheques and money orders were the property of the company, and the official receiver could not claim them as part of the assets of the debtor divisible amongst his creditors. [He also referred to s. 27 of the Bankruptcy Act, 1890.]

Mr. Hugh-Jones in person. Sect. 17 of the Act of 1883 and s. 27 of the Act of 1890 clearly shew that the debtor must answer all questions as to his conduct, dealings, and property that the Court may allow to be put to him. His general conduct is part of the materials to be placed before the Court on his application for his discharge. Sect. 69 does not limit the scope of the inquiry, and the proviso in s. 8 of the Act of 1890 is wide enough to include any felony or misdemeanour. The matter was discussed in Reg. v. Scott (2), Reg. v. Erdheim (3), and In re a Solicitor. (4)Those decisions shew that the debtor is bound to answer questions which the Court allows to be put and which may criminate him, and that the common law principle relied on does not apply to an examination in bankruptcy. Further, the usual practice not to press such questions is not applicable here, because the debtor may leave the country and may not return.

Macaskie in reply. Reg v. Scott (2) related to an offence against

(1) [1895] 1 Q. B. 923.

(2) (1856) 25 L. J. (M.C.) 128.

(3) [1896] 2 Q. B. 260, 267, 268.

(4) (1890) 25 Q. B. D. 17, 25.

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the existing bankruptcy law. Reg. v. Erdheim (1) was a decision under s. 11 of the Debtors Act, 1869, and neither in that case nor in the case of In re a Solicitor (2) was s. 69 referred to.

PHILLIMORE J. This is a question which has arisen out of the public examination of a debtor under s. 17 of the Bankruptcy Act, 1883, which provides in sub-s. 1 that the debtor "shall be examined as to his conduct, dealings and property," and in sub-s. 8 that "it shall be his duty to answer all such questions as the Court may put or allow to be put to him." Those words are in themselves wide enough for the purpose of the matter now before me, but I have also the authority of the cases of In re a Solicitor (2), Reg. v. Erdheim (1), and Reg. v. Scott (3), which decide that those words mean what they say, that a debtor is bound to answer all such questions as the Court may put or allow to be put to him, whether they tend to criminate him or not - even such a question as "Have you committed a crime?" Reference has been made to s. 27 of the Act of 1890, but it does not help the contention on behalf of the debtor. Sect. 85 of the Larceny Act, 1861, had provided that no person should be liable to be convicted of certain misdemeanours (being frauds by agents, bankers, or factors) if he should have first disclosed the same under any compulsory examination in bankruptcy, and sub-s. 1 of s. 27 removes out of that class of exceptions all cases of statements made by a bankrupt under compulsion in bankruptcy, which confirms the view that he can be compelled to answer questions which may tend to criminate him; and sub-s. 2 of that section also does not protect him from disclosing, The only really strong contention put forward on behalf of the bankrupt is that ss. 17 and 69 of the Act of 1883 must be read together, and that s. 69 limits the powers of the official receiver in examining the debtor under s. 17. Sect. 69 provides that it shall be the duty of the official receiver to investigate the conduct of the debtor and to report to the Court whether there is any reason to believe that the debtor has committed any act which constitutes a misdemeanour under the Debtors Act, 1869, or under the

(1) [1896] 2 Q. B. 260.

(2) 25 Q. B. D. 17.

(3) 25 L. J. (M.C.) 128.

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Bankruptcy Act, 1883, and it is said that his duties are confined to examining as to offences under those Acts and that it is no part of his business to ask questions as to charges of criminal misconduct that do not come within the scope of those Acts. But I see no reason for supposing that the declaration of the official receiver's duties in s. 69 in any way limits the powers of general investigation into conduct given by s. 17. All that can be said is this, that the powers under s. 69 are not quite as wide as those under s. 17, but they are not in conflict. That being so, I see no reason why the bankrupt in this case should not answer the questions which the official receiver proposes to put to him.

The point was very properly raised by the registrar and referred to me, because the practice in London has been, where a debtor is in custody or under remand on a criminal charge, not to press such questions while the charge is hanging over the bankrupt, but to adjourn the public examination until after the trial. But such a rule may, as has been pointed out, lead to mischief where it might be necessary to examine at once in order to trace assets which might be lost if prompt measures were not taken. It is, anyhow, only a rule of convenience and tenderness, and, though I hope it will be followed generally both in London and in the country, there may be occasions where it will be desirable not to follow it. Such an occasion would occur where the bankrupt is likely to be extradited or to be handed over to colonial authorities under the Fugitive Offenders Act. In such a case the bankrupt might leave the country and perhaps not come within the jurisdiction again. There it would be the duty of the official receiver to examine him before he leaves the country.

Historically the rule that a man cannot be compelled to answer questions tending to criminate him has never, so far as I am aware, been applied to the case where the alleged crime has not been committed within the jurisdiction of English law or on British soil. Crimes committed abroad are not, with few exceptions, crimes at home. A crime committed in a colony is for this purpose in the same position as a crime committed in France, or Germany, or in any other foreign country, and I know of no

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principle which will enable a man to protect himself on the ground that he fears criminal proceedings in some other country.

Then it is said that the official receiver was really exceeding his duties because he was not examining the debtor as s. 17 coupled with s. 69 provided. But as to that the official receiver has a right to examine the debtor generally as to his conduct, dealings, and property to ascertain whether he has done anything which the Court may have to take into consideration on his application under s. 8 of the Act of 1890 for his discharge and which would justify a refusing or suspending or qualifying of an order of discharge, and the crime charged in this case is one which the Court would probably take into consideration upon an application for discharge. Apart from that, the official receiver has power to ask questions relating to the dealings and property of the bankrupt, and in the present case it is alleged that the debtor has turned into money postal orders and other valuable securities, and these things are prima facie part of the assets in the bankruptcy. It may be that orders for restitution will be made, or it may be that applications to follow these assets as trust property will succeed, but unless and until such orders are made the property which the debtor has acquired by conversion forms part of his estate, and he is not in a position to say that it does not. I hold, therefore, that the official receiver is entitled, as he has claimed, to put questions to the debtor with regard to tracing any of these assets and to elicit any matters affecting his conduct that may be relevant, and I must order the debtor to answer the questions.

Macaskie. I am instructed that fifteen days must elapse after the order of the magistrate before extradition. Will your Lordship postpone the examination until after the order of the magistrate?

PHILLIMORE J. No. I do not think that such a postponement will be convenient or desirable. The magistrate will only look at the depositions. The official receiver, so far as he properly may, will not communicate the result of the examination to the police. He is not to go out of his way to furnish the

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police here with facts before the magistrate has committed. That is all I can say.

Solicitors for the debtor: Lloyd, Richardson & Co.

H. L. F.