Waste licence — Environmental Protection Act 1990 — Self-incrimination — Evidence — Construction of section 71(2) — Whether person unlawfully depositing waste entitled to privilege against self-incrimination — Whether Article 6 of the European Convention on Human Rights entitles person to rely on privilege against self-incrimination
In 1995 the respondent council discovered controlled waste, within the meaning of the Environmental Protection Act 1990, on two sites of land leased or licensed to the first appellant company. There was no licence authorising the deposit or keeping of waste on the sites. This was an indictable offence under section 33 of the 1990 Act. Pursuant to section 71 of the Act, the council served on the company and the second appellant, the company’s sole director, a request for information seeking particulars of all bodies and persons connected with the deposit of the waste. The appellants sought assurances that the answers would not be used against them in prosecution. The council offered no such undertakings and insisted on the information. In February 1996 they issued a summons before the magistrates alleging a contravention of section 71(2) by failure to provide the information. The summons was subsequently adjourned pending judicial review proceedings challenging the validity of the request. The appellants appealed the decision of the Court of Appeal dismissing their appeal from the Divisional Court. Although it was accepted on behalf of the appellants that, as a matter of English domestic law, section 71(2) impliedly excluded self-incrimination as a reasonable excuse for failure to provide the information, it was contended that the section must be interpreted in accordance with Community law, including the general principles of human rights.
Held The appeal was dismissed.
In English domestic law, the appellants were not entitled to refuse to provide the information on the ground that it might incriminate them. That conclusion was unaffected by European law; the appellants were obliged to answer the request for information. European jurisprudence under Article 6(1) of the European Convention of Human Rights is firmly anchored to the fairness of the trial and is not concerned with extra-judicial inquiries. The council’s requests were for factual information, none invited any admission of wrongdoing, and fell on the right side of the line drawn by the European Court of Justice in Orkem SA(formerly CDF Chimie SA) v Commission of the European Communities[1989] ECR 3283. |page:109|
Cases referred to in the opinions
Arrows (No 4), Re; sub nom Hamilton v Naviede [1995] 2 AC 75; [1994] 3 WLR 656; [1994] All ER 814
AT&T Istel Ltd v Tully [1993] AC 45; [1992] 3 WLR 344; [1992] 3 All ER 523
Bank of England v Riley [1992] Ch 475; [1992] 2 WLR 840; [1992] 1 All ER 769
Bishopsgate Investment Management Ltd (in provisional liquidation) v Maxwell [1993] Ch 1; [1992] 2 WLR 991; [1992] 2 All ER 856
Dyson v Attorney-General [1911] 1 KB 410
Funke v France (A/256-A) (1993) 16 EHRR 297
Lam Chi-Ming v The Queen [1991] 2 AC 212; [1991] 2 WLR 1082; [1991] 3 All ER 172
London United Investments, Re [1992] Ch 578; [1992] 2 WLR 850; [1992] 2 All ER 842
Orkem SA (formerly CdF Chimie SA) v Commission of the European Communities (C374/87); [1989] ECR 3283
R v Director of Public Prosecutions, ex parte Kebilene [1999] 3 WLR 972; [1999] 4 All ER 801
R v Director of the Serious Fraud Office, ex parte Smith [1993] AC 1; [1992] 3 WLR 66; [1992] 3 All ER 456
R v Saunders (Ernest) (No 2) [1996] 1 Cr App R 463
Saunders v United Kingdom (1997) 23 EHRR 313
Serves v France (1999) 28 EHRR 265
The King v Warickshall (1783) 1 Leach 263
This was an appeal by Green Environmental Industries Ltd and John Moynihan against the decision of the Court of Appeal dismissing the appellants’ appeal from a decision of the Divisional Court dismissing their application for judicial review of requests for information made by the respondents Hertfordshire County Council.
LORD SLYNN OF HADLEY: My lords, I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Hoffmann. I agree that the appeal should be dismissed for the reasons he has given. In agreement with him and with Lord Cooke of Thorndon, I do not consider that it is necessary to refer to R v Director of Public Prosecutions, ex parte Kebilene [1999] 3 WLR 972 in the context of this case or that a reference to the European Court of Justice is required.
LORD STEYN: My lords, I have had the advantage of reading in draft the speech of Lord Hoffmann. For the reasons he has given, I would also dismiss the appeal. I have also had the advantage of reading in draft the further observations of Lord Cooke of Thorndon. I am also in agreement with those observations.
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LORD HOFFMANN: My lords, the question in this appeal is whether a person who has unlawfully deposited waste without a licence may refuse to provide information about his activities, which has been requested, pursuant to a statutory power, by a local waste regulation authority on the ground that his answers may incriminate him or lead to the discovery of evidence that may be used against him in a criminal prosecution.
As a matter of domestic law, this depends upon the construction of the statute that confers the power to require information — in this case, section 71(2) of the Environmental Protection Act 1990. Although the contrary was argued in the Divisional Court and the Court of Appeal, the appellant accepted before your lordships that the terms of the section impliedly exclude self-incrimination as an excuse for refusing to answer. In a prosecution under the Act of 1990, the trial judge would have a discretion to exclude the answers. He could also exclude evidence found in consequence of the answers. That discretion is conferred by section 78 of the Police and Criminal Evidence Act 1984. The discretion may be exercised on the ground that, having regard to the circumstances in which the evidence was obtained, its admission would have an unduly adverse effect on the fairness of the trial. But the statute deprives the appellant of any privilege not to answer. He must provide the information and take his chance on persuading the judge at the trial to exclude it.
Mr David Vaughan QC, who appeared for the appellant, submitted, however, that in this case the domestic construction of the statute was not the end of the matter. The Act of 1990, as amended by Article 19 of and Schedule 4 to the Waste Management Licensing Regulations 1994 (SI 1994 No 1056), is the instrument by which the United Kingdom has given effect to the European Waste Framework Directive (91/156/EEC). It must therefore be interpreted in accordance with Community law, including the general principles of human rights that form part of the Community jurisprudence. The European Court of Justice would apply, by analogy, the provisions of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1953) (Cmd 8969), and Mr Vaughan submitted that upon the true application of Article 6 of that Convention, the appellant would be entitled to rely upon the privilege against self-incrimination to refuse to provide the requested information. The question therefore is whether Article 6, as interpreted by the European Court of Human Rights, has this effect.
My lords, I must now describe the statutory scheme concerning waste disposal that contains the power to request information at issue in this appeal, and the circumstances in which the authority came to invoke it. For the protection of the public health and the environment, section 33 of the Act of 1990 prohibits the deposit or keeping of “controlled waste” upon any land without a waste-management licence issued by a waste regulation authority. A contravention of the section is a criminal offence, punishable on indictment by imprisonment for up to two years. Similarly, a carrier of controlled waste must be registered as such with a waste-regulation authority: see section 1 of the Control of Pollution (Amendment) Act 1989. The Environment Act 1995 transferred the |page:111| functions of waste-regulation authorities to the Environment Agency with effect from 1 April 1996, but before that date those functions were exercised by local authorities. Their duties as waste-regulation authorities included the protection of human health and the environment: see para 2(1), table 5 and para 4(1) of Schedule 4 to the Waste Management Licensing Regulations 1994 (SI 1994 No 1056) and the administration and enforcement of the licensing and registration system.
In November 1995 Hertfordshire County Council (the council) were the waste-regulation authority for the county. One of their inspectors, Mr Douglas Valentine, found over 100 tonnes of clinical waste stored in trailers and a warehouse at two sites in or near Hertford. Clinical waste is “controlled waste” for the purposes of the Act of 1990. There was no licence authorising the deposit or keeping of waste on the sites in question, which appeared to have been leased or licensed to the first appellant, Green Environmental Industries Ltd (Green). The second appellant, Mr John Moynihan, was its sole director and principal shareholder. On
23 November 1995 the council wrote to Green, with a copy to Mr Moynihan, saying that there appeared to have been a serious breach of section 33 of the Act of 1990 and drawing attention to the possible penalties. They then requested Green forthwith to remove and incinerate the waste, failing which the council would exercise their powers under section 59 to have the waste removed by their own contractors and recover the cost from Green or Mr Moynihan or any other person liable under the section. On the following day, Mr Moynihan replied, on behalf of Green, by fax. He did not deny responsibility for depositing or keeping the waste, but made certain proposals for its removal, which the council rejected as inadequate. The council then employed contractors at a cost of over £200,000.
This was the background to the request for information served by the council on Green a fortnight later under section 71(2), of which the material parts read as follows:
For the purpose of the discharge of [its]…functions under this Part —
…
(b) a waste regulation authority,
may, by notice in writing served on him, require any person to furnish such information specified in the notice as the…authority…reasonably considers…it needs, in such form and within such period following service of the notice…as is so specified.
By subsection (3), any person who fails, without reasonable excuse, to comply with a requirement imposed under subsection (2) commits an offence punishable summarily by a fine or on indictment by imprisonment for up to two years.
The request asked for particulars of all persons, companies or hospitals that had supplied clinical waste to Green; of the persons who carried waste on its behalf; of the staff that it employed in handling clinical waste at the two sites that had been found; of the companies that had employed Green to dispose of clinical waste; of the supplier or hirer of the trailers it |page:112| had used; of the keepers of any vehicles used to collect waste from the producers; of the locations of any other sites used by Green; and of three bins that had been seen on one of the sites but were no longer there.
Green replied by its solicitor, asking for confirmation that the answers would not be used against the company in a prosecution. It said that the use of the statutory power rather than an interview with a suspect under the Police and Criminal Evidence Act 1984, at which it would be cautioned that it need not answer, was an attempt to deprive the company of its right to silence and the privilege against self-incrimination. The council stood their ground, offering no undertakings but insisting upon the information. On 6 February 1996 they issued a summons before the magistrates alleging a contravention of section 71(2) by failure to provide the information. The summons was adjourned indefinitely when Green and Mr Moynihan issued proceedings for judicial review to challenge the validity of the section 71(2) request. Leave to apply was granted, but the application was dismissed by the Divisional Court (Russell LJ and Scott Baker J) and an appeal to the Court of Appeal (Beldam, Peter Gibson and Waller LJJ) was unanimously dismissed. Green and Mr Moynihan appeal to your lordships’ house.
In June 1996 Green and Mr Moynihan were charged with offences under section 33 of the Act of 1990. They were committed for trial at St Albans Crown Court. On 25 July 1997, shortly before the judgment of the Court of Appeal in these proceedings, Mr Moynihan pleaded guilty on two counts and, on 15 September 1997, he was sentenced to a total of 18 months’ imprisonment. The sentence was ordered to run consecutively upon a sentence of three years’ imprisonment for cheating the revenue of VAT, which had been imposed at a trial on 23 May 1997. The position is therefore that the proceedings against Mr Moynihan for the substantive offence under section 33, in respect of which he claimed that he might be incriminated, have been concluded. But he remains liable to prosecution and a maximum of two years’ imprisonment for failure to provide the information requested under section 71(2), if your lordships should decide that he was bound to answer.
Although the point is no longer being pursued, I think that I should start by explaining why, in my opinion, Mr Vaughan was quite right to concede that, as a matter of English domestic law, section 71(2) impliedly excludes self-incrimination as a reasonable excuse for failure to provide the information. Against this background, one can then discuss whether European jurisprudence requires a different answer.
As Lord Mustill said in R v Director of the Serious Fraud Office, ex parte Smith [1993] AC 1 at pp30-31, the expression “privilege against self-incrimination” or “right to silence” is used to refer to several loosely-linked rules or principles of immunity, differing in scope and rationale. Perhaps the best known example is the rule that a person on trial should not be compelled to undergo inquisition by the prosecution or the court. Such methods were brought into disrepute by the practices of the prerogative courts of the 16th and 17th centuries, and have since been regarded as inconsistent with a fair trial. But the rule plainly has nothing |page:113| to do with the present case, which is not concerned with the trial process at all. There are also associated principles that confer a right to silence or privilege against self-incrimination during the pre-trial investigation, such as the exclusion of involuntary confessions and the prohibition on the questioning of suspects without caution or after charge. 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 that may have doubtful probative value: see Lord Templeman in AT&T Istel Ltd v Tully [1993] AC 45 at p53. There is also a general privilege not to be compelled to answer questions from people in authority based, as Lord Mustill put it in R v Director of the Serious Fraud Office, ex parte Smith [1993] AC 1 at p31, upon “the common view that one person should, so far as possible, be entitled to tell another person to mind his own business”.
All these principles are, to a greater or lesser extent, subject to exceptions, most of which have been created by statute. Even the principle that the accused should not be subject to interrogation at the trial was modified when the Criminal Evidence Act 1898 made him subject to cross-examination by the prosecution if he exercised his right to give evidence under oath. As for the most general immunity from being made to answer questions, Lord Mustill went on to say that “few would dispute that some curtailment of the liberty is indispensable to the stability of society; and indeed in the United Kingdom today our lives are permeated by enforceable duties to provide information on demand”.
The question of whether a statute that confers a power to ask questions or obtain documents or information excludes the privilege against self-incrimination in one or other of its forms is therefore one of construction. Some statutes expressly exclude the right to refuse to answer on the ground that the answer may tend to incriminate, usually in company with a provision that prevents the answers from being used in evidence: see, for example, section 31 of the Theft Act 1968 and section 72 of the Supreme Court Act 1981. Even without express words, the statute may impliedly exclude the privilege on the ground that it would otherwise be largely ineffective. So, in Re London United Investments [1992] Ch 578, the Court of Appeal decided that the privilege was impliedly excluded by the terms of a statute that conferred power on company inspectors, appointed by the Secretary of State, to require documents and answers to questions from any person whom they consider may have relevant information. In Bishopsgate Investment Management Ltd (in provisional liquidation) v Maxwell [1993] Ch 1 at p2E, Dillon LJ said of the Re London United Investments case, and a similar decision on investigatory powers conferred on the Bank of England by the Banking Act 1987 (Bank of England v Riley [1992] Ch 475):
The essence of both decisions is that if Parliament, in the public interest, sets up by statute special investigatory procedures to find out if the affairs of a company have been conducted fraudulently, with the possibility of special remedies in the light of an inspector’s report, or to find out if there have been |page:114| infringements of certain sections of the Banking Act 1987 which have been enacted for the protection of members of the public who make deposits, Parliament cannot have intended that anyone questioned under those procedures should be entitled to rely on the privilege against self-incrimination, since that would stultify the procedures and prevent them achieving their obvious purpose.
Mutatis mutandis, it seems to me that this reasoning is applicable to the powers of investigation conferred by section 71(2). Those powers have been conferred not merely for the purpose of enabling the authorities to obtain evidence against offenders but for the broad public purpose of protecting the public health and the environment. Such information is often required urgently, and the policy of the statute would be frustrated if the persons who knew most about the extent of the health or environmental hazard were entitled to refuse to provide any information on the ground that their answers might tend to incriminate them. Parliament is more likely to have intended that the question of whether the obligation to provide potentially incriminating answers has caused prejudice to the defence in a subsequent criminal trial should be left to the judge at the trial, exercising his discretion under the Act of 1984. For these reasons, I would regard the case for implied exclusion of the privilege as even stronger than it was in the cases under the Banking and Companies Acts.
The broad purpose of the power under section is demonstrated by the evidence for the council in the present case. It is not denied that one of their purposes in requesting the information was to investigate the activities of Green and Mr Moynihan with a view to a prosecution. But that was not the only purpose. The council needed to know, for obvious reasons of public health, whether other such sites existed. They needed to consider the health risks to people who had handled the clinical waste without adequate protection and therefore wanted to know their identities. And they wanted to know the identities of producers, carriers and others involved in the chain of transfers by which the waste found its way from the hospitals to Green in order to investigate whether others had been in breach of their duties under the Act. An innovation introduced by the Act of 1990, on the recommendation of the Royal Commission on Environmental Pollution (15th Report, 1985, Cmnd 9675) was the “duty of care” imposed by section 34 on everyone who produced, carried or kept waste. The duty of care was to ensure that waste was transferred only to an authorised person and to take all reasonable measures to prevent contravention of section 33 by any other person. No longer was it possible for a person disposing of waste to say that he passed it on to an independent contractor for whose acts he was not responsible. To reinforce this duty, and make it possible for waste regulation authorities to trace the transfers of waste down the chain, the Act and the Environmental Protection (Duty of Care) Regulations 1991 (SI 1991 No 2839) required transferor and transferee to complete and sign a transfer note, recording the names and addresses of both and particulars of the waste. These notes were to be kept for two years and produced to the waste regulation |page:115| authority upon request. Thus, a good deal of the information sought by the council should have been available for inspection in the form of transfer notes retained by Green. The request under section 71(2) had to be made because Green was unable to produce any such documents.
My lords, in the process of construction, the public interest in obtaining the information is only one side of the coin. As Lord Mustill said in R v Director of the Serious Fraud Office, ex parte Smith [1993] AC 1 at p32, it is necessary also to identify what variety of the right to silence would be affected by the power and the strength of the grounds for preserving it. As I have said, the request under section 71(2) does not, in itself, form a part, even a preliminary part, of any criminal proceedings. It does not therefore touch the principle that prohibits interrogation of a person charged or accused. Nor is there any question of the potential abuse of investigatory powers that those rules are designed to prevent. The section does not provide for oral interrogation, and the recipient of the request may answer upon advice and at his leisure. Nor does the obligation to give the information prejudice the fairness of a possible trial, since the accused would still have the protection of section 78 of the Act of 1984: see Lord Browne-Wilkinson in Hamilton v Naviede [1995] 2 AC 75 at p107. I say “possible trial” because, of course, the person giving the information may not be prosecuted or he may, as in this case, be prosecuted and plead guilty. If it were decided in this case that Green and Mr Moynihan had been entitled to refuse to provide the information, it would have been to protect them against a use of their answers that has turned out to have been entirely hypothetical. It is also worth noting that none of the questions called for any admission of liability. They simply asked for names, addresses and locations. No doubt this information could have been used to assist the council in gathering evidence for a prosecution against the appellants, but 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 [1991] 2 AC 212, in which Lord Griffiths said that an involuntary confession did not become admissible because it had led to the discovery of evidence that confirmed its truth. On the other hand, subject to the trial judge’s discretion under section 78, evidence was not inadmissible merely because it had been discovered in consequence of an involuntary confession: see The King v Warickshall (1783) 1 Leach 263. The appellants cannot therefore say that the possible use of evidence obtained in consequence of the information provided under section 71(2) would offend any policy of English law.
My lords, these are the considerations that I think lead to the conclusion that, in English domestic law, the appellants were not entitled to refuse to provide the information on the ground that it might incriminate them. I can now turn to the main question in the appeal, which is whether this conclusion is affected by European law. There is no dispute that since the Act of 1990 gives effect to a directive, it must be interpreted according to principles of Community law, including its doctrines of fundamental human rights. For this purpose, Community law looks to |page:116| analogous principles in the national laws of Member States and the international conventions and covenants to which they are parties. In particular, it has regard to the European Convention on Human Rights. The jurisprudence of the European Court of Human Rights on this point is based upon the right to a “fair and public hearing” in Article 6(1) and the presumption of innocence in Article 6(2). The leading case on the privilege against self-incrimination as a part of this right is Saunders v United Kingdom (1997) 23 EHRR 313. Mr Saunders was convicted after a long trial on 12 counts of conspiracy, false accounting and theft in connection with a contested take-over bid. Before the trial, he had been examined by inspectors appointed by the Secretary of State under the Companies Act 1985 to investigate the affairs of the bidding company. The inspectors examined Mr Saunders under section 434 of the Act, which conferred compulsory powers and expressly provided in subsection (5) that his answers might be used in evidence against him. Transcripts of his examination were accordingly given in evidence at the trial and the Court of Appeal (Criminal Division) held that the clear words of section 434(5) prevented the discretion under section 78 of the Act of 1984 being used to exclude the evidence merely on the ground that it was obtained under compulsion: see R v Saunders (Ernest) (No 2) [1996] 1 Cr App R 463 at pp474-478. The European Court held that the use of the transcripts in this way was a violation of Mr Saunders’ rights under Article 6(1). The court rejected the arguments of the UK government that the complexity of corporate fraud and the public interest in its investigation and punishment could justify the admission of the evidence. It said flatly (in para 74) that “the public interest cannot be invoked to justify the use of answers compulsorily obtained in a non-judicial investigation to incriminate the accused during the trial proceedings”. As a result of this decision, parliament, in a Schedule to the Youth Justice and Criminal Evidence Act 1999, amended section 434 of the Act of 1985 by excluding evidence of the answers in prosecutions for certain offences.
Similar amendments were made to other statutes but not to section 71 of the Act of 1990, presumably because it contains no express provision that answers are to be admissible and therefore leaves the discretion under section 78 unimpaired. After the Human Rights Act 1998 comes into force, a judge at a criminal trial at which an answer to a request under section 71 is tendered in evidence will have to consider whether Article 6(1), as interpreted in Saunders v United Kingdom (1997) 23 EHRR 313, requires him to exercise the discretion to exclude the evidence.
But none of this is relevant to the present case because no answer under section 71(2) has been tendered in evidence against Green or Mr Moynihan. This case is concerned with the legality of the procedure by which they were required to give answers, corresponding to the examination before the inspectors in Saunders. On this point, the judgment of the European Court is perfectly clear. It said that it was casting no doubt upon the propriety of the use of compulsory powers at the examination stage. In para 67 the court said:
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The Court first observes that the applicant’s complaint is confined to the use of the statements obtained by the DTI Inspectors during the criminal proceedings against him. While an administrative investigation is capable of involving the determination of a “criminal charge” in the light of the Court’s case law concerning the autonomous meaning of this concept, it has not been suggested in the pleadings before the Court that Article 6(1) was applicable to the proceedings conducted by the Inspectors or that these proceedings themselves involved the determination of a criminal charge within the meaning of that provision. In this respect the Court recalls its judgment in FAYED v UNITED KINGDOM where it held that the functions performed by the Inspectors under section 432(2) of the Companies Act 1985 were essentially investigative in nature and that they did not adjudicate either in form or in substance. Their purpose was to ascertain and record facts which might subsequently be used as the basis for action by other competent authorities – prosecuting, regulatory, disciplinary or even legislative. As stated in that case, a requirement that such a preparatory investigation should be subject to the guarantees of a judicial procedure as set forth in Article 6(1) would in practice unduly hamper the effective regulation in the public interest of complex financial and commercial activities.
Thus, the European jurisprudence under Article 6(1) is firmly anchored to the fairness of the trial and is not concerned with extra-judicial inquiries. Such impact as Article 6(1) may have is upon the use of such evidence at a criminal trial. Although it is true that the council, unlike the DTI inspectors, had power to prosecute in criminal proceedings, I do not think that the request for information under section 71(2) could be described as an adjudication, “either in form or in substance.” The Saunders case is therefore no authority for allowing the appellants to refuse to answer.
But Mr Vaughan said that he could derive support from the subsequent case of Serves v France (1999) 28 EHRR 265. Captain Serves was a French officer charged in 1988 before a military court, together with a lieutenant and corporal of his company, with the murder of a civilian in the Central African Republic. In 1989 the proceedings were quashed for procedural irregularity and, on 19 April 1990, fresh proceedings were commenced against the lieutenant and the corporal. The charge against Captain Serves was not reinstated until 6 May 1992, and he was convicted in May 1994. During the period while the second charges were pending only against the lieutenant and corporal, Captain Serves was summoned to appear as a witness before the military investigating judge. He refused to take the oath and was fined for failing to give evidence. The European Court of Human Rights decided that although the first proceedings had been quashed in 1989, the evidence on which that investigation was based remained on the file and Captain Serves remained “charged” with murder within the meaning of Article 6(1): see para 42. He was therefore entitled to refuse to answer any questions from the judge that might tend to incriminate him. It said, however, that he should have taken the oath, heard the questions and refused to answer rather than simply refusing to be sworn. On this ground, his complaint was dismissed.
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In my opinion, the Serves case turns on the fact that Captain Serves was at risk of being required to incriminate himself in the very proceedings in which he was, for Convention purposes, charged with murder. The questions were to be put to him as part of the judicial process. The case is therefore not relevant to extra-judicial inquiries.
Mr Vaughan also referred to the decision of the European Court of Justice in Funke v France (1993) 16 EHRR 297. Mr Funke was fined in a French court for failing to produce bank statements demanded under statutory powers by customs officers. The court, differing from the Commission, held that there had been a breach of Article 6(1). The reasoning of the court was very briefly expressed. It said in para 44:
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.
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 Saunders did not regard this case as casting doubt upon the clear distinction that it drew between extrajudicial inquiries and the use of the material thereby obtained in a subsequent criminal prosecution.
Finally, Mr Vaughan referred to the case of Orkem SA (formerly CdF Chimie SA) v Commission of the European Communities [1989] ECR 3283, a decision of the European Court of Justice that concerned the powers of the Commission to demand information in the course of its investigation of possible offences against the Community competition laws. Article 11 of Regulation 17 of 1962 gave the Commission power, for the purposes of ensuring the application of the principles of Community competition law, to “obtain all necessary information” from undertakings under investigation. The Commission sent Orkem a wide-ranging questionnaire, including requests for factual information about correspondence and meetings with other firms, but also some questions that, in effect, required Orkem to confess that it had acted unlawfully. The Court of Justice said that the Commission was entitled to ask for factual information, even if it |page:119| might be incriminating. In para 27 p3350 of the judgment, it said that:
Regulation No 17 does not give an undertaking under investigation any right to evade the investigation on the ground that the results thereof might provide evidence of an infringement by it of the competition rules. On the contrary, it imposes on the undertaking an obligation to cooperate actively, which implies that it must make available to the Commission all information relating to the subject-matter of the investigation.
It followed that (para 3 p3352):
The questions… relating to meetings of producers, which are intended only to secure factual information on the circumstances in which such meetings were held and the capacity in which the participants attended them, and also the requirement of disclosure of documents in the applicant’s possession relating thereto, are not open to criticism.
What were objectionable were questions such as the request for particulars of “every step or concerted measure which may have been envisaged or adopted to support such price initiatives”, which were an attempt to force Orkem to admit that it had taken part in price-fixing. These were calculated to undermine the right of the company to defend itself. This infringed the “need to safeguard the rights of the defence which the court has held to be a fundamental principle of the Community legal order” (para 32). The court concluded at para 35 p3351:
the Commission may not compel an undertaking to provide it with answers which might involve an admission on its part of the existence of an infringement which it is incumbent upon the Commission to prove.
It seems to me clear that all the council’s requests for information fell on the right side of the line drawn by the Court of Justice in this case. They were all requests for factual information. None invited any admission of wrongdoing.
For these reasons, I think that the appellants were obliged to answer the request for information, and I would dismiss the appeal.
At the conclusion of the argument, counsel for the parties were invited to make written submissions to your lordships on whether, in the light of the recent decision of the House in R v Director of Public Prosecutions, ex parte Kebilene [1999] 3 WLR 972, in which judgments were delivered on 28 October 1999, judicial review was an appropriate procedure by which to raise the question at issue in this appeal. I am grateful to counsel for their submissions, but, in view of my conclusion that the appellants were wrong as a matter of substantive law and that the point was bound to fail, I do not express any view on the hypothetical question of what would have been an appropriate procedure if the point had been a good one.
LORD COOKE OF THORNDON: My lords, having had the advantage of reading in draft the speech of my noble and learned friend Lord Hoffmann, I agree that the alleged possibility of self-incrimination did not provide the appellant with reasonable excuse for failing to supply the |page:120| information specified in the council’s notice. He was bound to comply, but could successfully contend in any subsequent prosecution that his answers could not be put in evidence against him. The reasoning in Saunders v United Kingdom (1997) 23 EHRR 313 and the purpose of the Environmental Protection Act 1990 combine to produce this result.
I would add only some observations on two points. First, if it had been necessary for the disposal of this appeal to determine whether article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms would rule out the admission in a prosecution of evidence obtained in consequence of the answers (sometimes called “derivative” evidence), it might well be that a reference to the European Court of Justice would have been appropriate. Such issues are the subject of much and difficult case law in various jurisdictions, and, at the present stage, the jurisprudence of the European Courts may leave the matter unclear. But this appeal does not require your lordships to make a determination of the “derivative” evidence question.
Second, as a party to the decision of your lordships in R v Director of Public Prosecutions, ex parte Kebilene [1999] 3 WLR 972 I would not myself see that decision as having any strong bearing on the availability of judicial review in a case of this kind. The case of Kebeline turned on the principle that pending indictment proceedings, in which a question may be determined, should not be delayed or complicated by satellite civil proceedings designed to raise the same question. In the present case, it was on the same day, 7 February 1996, that the company and the appellant filed and served an application for leave to apply for judicial review, and the respondents served on the company a summons charging the offence of non-compliance with the requisition. I do not understand Kebilene to have anything impliedly to say as to such a situation. The general ability of a citizen to challenge, by appropriate civil proceedings, the validity of a requisition issued against him or her by a public authority is classically exemplified by Dyson v Attorney-General [1911] 1 KB 410, although in that case the enforcement procedure open to the Crown was an action for penalties, rather than a prosecution. The ability is not invariable, and there is an extensive tract of relevant case law, dealt with in the standard works on administrative law; but that line of authorities was not considered in Kebilene. Again, although it is well conceivable that in a case of environmental emergency a judge might decline leave to apply for judicial review, the considerations relevant to the exercise of the judicial discretion would not necessarily be the same as those that dictated the result in Kebilene. Comparisons might not be truly helpful.
I would dismiss this appeal.
LORD HOBHOUSE OF WOODBOROUGH: My lords, I too agree that this appeal should be dismissed for the reasons given by my noble and learned friend, Lord Hoffmann.
I also agree with my noble and learned friend Lord Cooke of Thorndon that, at the time that they were initiated, these judicial review proceedings represented an appropriate procedure for a person to adopt if he was |page:121| seeking for good cause to obtain an order quashing the decision to serve a notice under section 71 of the Environmental Protection Act 1990. The situation that it was necessary to consider in R v Director of Public Prosecutions, ex parte Kebilene [1999] 3 WLR 972 related to a question arising during the course of a criminal trial in the Crown Court. There may, of course, be cases where judicial review proceedings properly started are overtaken by a later criminal prosecution raising the same issue and therefore require a choice between determining the issue in the one or the other proceedings. However, it is not necessary to discuss that essentially practical question on this appeal.
Appeal dismissed.
