The right to liberty

Hickling v Baker CA TLR 19 April

The defendant was an undischarged bankrupt whose discharge had been suspended on the ground that he had not cooperated with the claimant, his trustee in bankruptcy. Several orders were made for the search of premises and seizure of assets found there, but the trustee contended that the bankrupt remained intransigent and determined not to give accurate information about his assets. The purpose of s364 of the Insolvency Act 1986, empowering the court to commit a bankrupt to prison, is to prevent the bankrupt from evading his obligations or to encourage him to put right any evasion that he might have effected. Accordingly, the trustee applied for the bankrupt’s committal in the hope that that would lead to fuller and more accurate disclosure by him. The application was made without notice. The judge made an order committing the bankrupt to prison forthwith for, inter alia, concealing goods or records, which might be of use to his creditors under s364(2)(c). The bankrupt was arrested, the house where he was found searched, and items seized under the same warrant. Could the bankrupt’s detention be justified under article 5.1(b) of the European Convention on Human Rights?