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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 >> Hundal & Anor, R v  EWCA Crim 389 (3 February 2004)
Cite as:  2 Cr App R 19,  2 Cr App Rep 19,  2 CAR 19,  EWCA Crim 389
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B e f o r e :
(The Lord Woolf of Barnes)
MR JUSTICE RICHARDS
MR JUSTICE HENRIQUES
|R E G I N A|
|- v -|
|KESAR SINGH DHALIWAL|
Smith Bernal, 190 Fleet Street, London EC4
Telephone 020-7421 4040
(Official Shorthand Writers to the Court)
MR C SUTTON-MATTOCKS and MR P MYLVAGANAM
appeared on behalf of THE APPELLANT DHALIWAL
MR A JAFFERJEE and MR C W D AYLETT appeared on behalf of THE CROWN
Crown Copyright ©
Tuesday 3 February 2004
THE LORD CHIEF JUSTICE:
"A person commits an offence if he belongs or professes to belong to a proscribed organisation."
The offence is created by that subsection.
"It is a defence for a person charged with an offence under subsection (1) to prove:
(a) that the organisation was not proscribed on the last (or only) occasion on which he became a member or began to profess to be a member; and
(b) that he has not taken part in the activities of the organisation at any time while it was proscribed."
"In my judgment, the items found in the search were not evidence which Hundal had been forced to create by the use of compulsory powers. These items were clearly already in existence. The only effect of the use by DC Hall of compulsory powers to search under Schedule 7 of the 2000 Act was to bring the items to his attention, to that of the investigators who later interviewed Hundal under caution and ultimately to that of the court. Accordingly, the production and use of this independent evidence did not infringe Hundal's right to silence or his right not to incriminate himself. There was, accordingly, no infringement of Article 6 which rendered either the items found or the later interview under caution inadmissible."
In that short passage the judge explained the essence of his reasons for coming to the conclusion that the evidence was properly placed before the jury.
".... if the evidence was already in existence and the only effect of the use of the compulsory powers was to bring such evidence to the attention of the court, then its production could not be so objectionable. That is because the existence and quality of such evidence are independent of any order to produce it that is made against the will of the accused person. Therefore the production of such pre-existing and 'independent' evidence could not render a trial unfair and so breach article 6."
It seems to us that those remarks in that judgment are applicable to the facts which exist here.
"There is a distinction between the compulsory production of documents or other material which have an existence independent of the will of the suspect or accused person and statements that he has had to make under compulsion. In the former case there is no infringement of the right to silence and the right not to incriminate oneself. In the latter case there could be, depending on the circumstances."
In addition, in paragraph 54 Aikens J drew attention to the fact that the rights to silence and not to incriminate oneself that are implicit in article 6 are not absolute. They can be qualified or restricted if there is proper justification and if the restriction is proportionate.