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England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Attorney General's Reference No 7 of 2000 V  EWCA Crim 888 (29 March 2001)
Cite as:  EWCA Crim 888,  Crim LR 736,  2 CAR 19,  2 Cr App R 19,  1 WLR 1879,  2 Cr App Rep 19,  WLR 1879,  BPIR 953,  HRLR 41
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B e f o r e :
(LORD JUSTICE ROSE)
MR JUSTICE ROUGIER
MR JUSTICE McCOMBE
|ATTORNEY GENERAL'S REFERENCE No 7 of 2000|
Smith Bernal Reporting Limited
190 Fleet Street, London EC4A 2HD
Tel No: 0171 421 4040 Fax No: 0171 831 8838
(Official Shorthand Writers to the Court)
MR D PERRY &. MR G PATTERSON appeared on behalf of the Respondent
Crown Copyright ©
"Does the use by the Crown in the prosecution of a bankrupt for an offence under Chapter VI of Part IX of the Insolvency Act 1986 (the 1986 Act) of documents which (a) were delivered up to the Official Receiver (OR) under compulsion (pursuant to the duty imposed on the bankrupt by section 291 of the 1986 Act, which is backed by the contempt sanction in section 291(6) of the 1986 Act) and (b) do not contain statements made by the bankrupt under compulsion violate the bankrupt's rights under Article 6 of the European Convention on Human Rights (the Convention)?"
"Where a bankruptcy order has been made, the bankrupt is under a duty-
(a) to deliver possession of his estate to the official receiver, and
(b) to deliver up to the official receiver all books, papers and other records of which he has possession or control and which relate to his estate and affairs (including any which would be privileged from disclosure in any proceedings)."
"(1) The bankrupt is guilty of an offence if he has-
(a) in the 2 years before petition, materially contributed to, or increased the extent of, his insolvency by gambling or by rash and hazardous speculations..."
"In any proceedings (whether or not under this Act)-
(a) a statement of affairs prepared... and
(b) any other statement made in pursuance of a requirement imposed by or under any such provision or by or under rules made under this Act, may be used in evidence against any person making or concurring in making the statement."
"(2) However, in criminal proceedings in which any such person is charged with an offence, to which this subsection applies, (a) no evidence relating to the statement may be adduced and (b) no question relating to it may be asked by or behalf of the prosecution unless evidence relating to it is adduced, or a question relating to it is asked, in the proceedings by or on behalf of that person."
"...in my opinion, the privilege can only be justified on two grounds, first that it discourages the ill-treatment of a suspect and secondly that it discourages the production of dubious confessions."
"These latter prohibitions are prophylactic rules designed to inhibit abuse of power by investigatory authorities and to preserve the fairness of the trial by preventing the eliciting of confessions which may have doubtful probative value..."
"English law does not regard the use of evidence obtained in consequence of an involuntary statement in the same light as the admission of the statement itself: see Lam Chi-ming v the Queen  2 AC 212..."
"I am bound to say that there are obscurities in this reasoning. What were the criminal proceedings in which Mr Funke was deprived of the right to a fair trial? They could not have been the prosecution for the offences suspected by the customs officers, since that was never brought. The only proceedings against him were for failure to produce his bank statements. In those proceedings, however, he was not obliged to incriminate himself. There was no need, because his guilt under French law was established by his failure to produce the bank statements. Perhaps the case is best regarded as an example of Lord Mustill's principle that without some good reason everyone has the right to tell other people, even customs officers, to mind their own business. It is however clear that the court in the Saunders case did not regard this case as casting doubt upon the clear distinction which it drew between extrajudicial inquiries and the use of the material thereby obtained in a subsequent criminal prosecution."
"The Court notes that the customs secured Mr Funke's conviction in order to obtain certain documents which they believed must exist, although they were not certain of the fact. Being unable or unwilling to procure them by some other means, they attempted to compel the applicant himself to provide the evidence of offences he had allegedly committed. The special features of customs law, cannot justify such an infringement of the right of anyone 'charged with a criminal offence,' within the autonomous meaning of this expression in Article 6, to remain silent and not to contribute to incriminating itself. There has accordingly been a breach of Article 6(1)."
"68. The Court recalls that, although not specifically mentioned in Article 6 of the Convention, the right to silence and the right not to incriminate oneself, are generally recognised international standards which lie at the heart of the notion of a fair procedure under Article 6. Their rationale lies, inter alia in the protection of the accused against improper compulsion by the authorities thereby contributing to the avoidance of miscarriages of justice and to the fulfilment of the aims of Article 6. The right not to incriminate oneself, in particular, presupposes that the prosecution in a criminal case seek to prove their case against the accused without resort to evidence obtained through methods of coercion or oppression in defiance of the will of the accused. In this sense the right is closely linked to the presumption of innocence contained in Article 6(2) of the Convention.
69. The right not to incriminate oneself is primarily concerned, however, with respecting the will of an accused person to remain silent. As commonly understood in the legal systems of the Contracting Parties to the Convention and elsewhere, it does not extend to the use in criminal proceedings of material which may be obtained from the accused through the use of compulsory powers but which has an existence independent of the will of the suspect such as, inter alia documents acquired pursuant to a warrant, breath, blood and urine samples and bodily tissue for the purposes of DNA testing."
"It is, however, at least open to doubt, whether the Court in paragraph 69 of its present judgment has not-implicitly, without saying so openly, let alone without adducing cogent reasons for doing so- overruled FUNKE and has essentially converted to the more restricted doctrine adopted inter alia by the Court of Justice."
"As held in Saunders v UK the right not to incriminate oneself is primarily concerned with respecting the will of the accused person to remain silent and does not extend to the use in criminal proceedings of material which may be obtained from the accused through the use of compulsory powers and which has an existence independent of the will of the accused (eg documents, breath, blood, urine and tissue samples)."
"There are serious grounds on which objection can be raised to an absolute rule that testimonial immunity must always extend to evidence derive from compelled testimony. While allowing the Crown to use such evidence in criminal proceedings may in a formal sense be equivalent to permitting direct reliance on the compelled testimony itself, there is an important difference between the type of prejudice that will be suffered in the two cases. It is only when the testimony itself has to be relied on that the accused can be said to have been forced to actually create self-incriminatory evidence in his or her own trial. The compelled testimony is evidence that simply would not have existed independently of the exercise of the power to compel it; it is in this sense evidence which could only have been obtained only from the accused.
By contrast, evidence derived from compelled testimony is, by definition evidence that existed independently of the compelled testimony. This follows logically from that fact that it was evidence which was found, identified or understood as a result of the 'clues' provided by the compelled testimony. Although such evidence may have gone undetected or unappreciated in the absence of the compelled clues, going undetected or unappreciated is not the same thing as nonexistence. The mere fact that the derivative evidence existed independently of the compelled testimony means that it could have been found by some other means, however low the probability of such discovery may have been."
"...the difference between evidence which the accused has been forced to create (the compelled testimony), and the independently existing evidence he or she has been forced to assist in locating, identifying or explaining (evidence derived from compelled testimony), will be readily discernible. I believe its significance will be equally apparent.
The fact that derivative evidence exists independently of the compelled testimony means, as I have explained, that it could also have been discovered independently of any reliance on the compelled testimony. It also means that its quality as evidence does not depend on its past connection with the compelled testimony. Its relevance to the issues with which the subsequent trial is concerned, as well as the weight it is accorded by the trier of fact, are matters that can be determined independently of any consideration of its connection with the testimony of the accused."
"What prejudice can an accused be said to suffer from being forced to confront evidence 'derived' from his or her compelled testimony, if that accused would have had to confront it even if the power to compel testimony had not been used against him or her? I do not think it can be said that the use of such evidence would be equivalent to forcing the accused to speak against herself or himself; once the derivative evidence is found or identified, its relevance and probative weight speak for themselves. The fact that such evidence was found through the evidence of the accused in no way strengthens the bearing that it, taken by itself, can have upon the questions before the trier of fact."
"In my view, derivative evidence that could not have been found or appreciated except as a result of the compelled testimony under the Act should in the exercise of the trial judge's discretion be excluded since its admission would violate the principles of fundamental justice. As will be evident from what I have stated earlier, I do not think such exclusion should take place if the evidence would otherwise have been found and its relevance understood. There is nothing unfair in admitting relevant evidence of this kind..."