Compulsory Disclosure under Restraint Order raises self-Incrimination Issue

In Randhawa (2012 EWCA 3) the Appellant had been convicted of a conspiracy to cheat the revenue arising out of a carousel (or MTIC) fraud. His co-defendant singh had produced documents in the course of proceedings relating to a Restraint Order made against him. He had been compelled to produce those documents by the Order which by virtue of paragraph 9.2 provided: there shall be no disclosure of any material disclosed in compliance with this Order to any co-defendant in the criminal proceedings. The trial judge had ruled in the course of an application for disclosure of this material by the Appellant that it neither undermined the prosecution case nor assisted the defence. It was the Appellants case that the failure to disclose the compelled material rendered the conviction unsafe. The Court of Appeal disagreed but Lord Justice Hooper added this postscript: the current restraint order template contains a paragraph permitting compelled material to be disclosed to the prosecution for the purpose of discharging the prosecutors disclosure obligations. We have also looked at Chapter 21 of the CPs Disclosure Manual which gives guidance on disclosure in relation to what we have called compelled material. We do think that the Court of Appeal Criminal Division should have the opportunity to consider this provision, in the light of Js and of the cases cited in Js as well as Martin and White [1998] 2 Cr App R 385, to which [counsel for the Crown] referred us. We pose the question whether a provision permitting disclosure of compelled material to the prosecution would have the effect of breaching privilege against self-incrimination of the person subject to the restraint order. We are also concerned that permitting disclosure of compelled material to the prosecution may lead to abuse of process arguments if the material leaks across any ˜Chinese wall.