Appellants unlawfully depositing waste without licence – Respondent council requesting information regarding activities at sites – Appellants wishing to refuse to provide information – Whether appellants able to rely upon privilege against self-incrimination – Section 71(2) of Environmental Protection Act 1990 – Article 6 of European Convention for the Protection of Human Rights and Fundamental Freedoms – Appeal dismissed
In 1995 the respondent council discovered over 100 tonnes of clinical waste stored at two sites that were not licensed for the deposit or storage of such waste. The first appellant, Green Environmental Industries Ltd (Green), was the lessee or licensee of the sites and the second appellant was the sole director of that company. The council informed the appellants that they were in breach of section 33 of the Environmental Protection Act 1990 and requested that the waste be removed.
Subsequently, the council served a notice upon Green, under section 71(2) of the 1990 Act, requesting information, including details of all companies or hospitals that had supplied the waste. Green sought confirmation that the answers would not be used against it in a prosecution. The council offered no such undertaking and insisted on receiving the information.
The proceedings against the second appellant for the substantive offence under section 33 of the Act had been concluded. The appellants nevertheless sought judicial review of the validity of the council’s request, as failure to provide the information could result in prosecution. The appellants conceded that, as a matter of domestic law, section 71(2) of the Act impliedly excluded self-incrimination as a reasonable excuse for failure to provide information. It was held that: “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”: Bishopsgate Investment Management Ltd v Maxwell [1993] Ch 1. The powers of investigation conferred upon the council, as the waste regulation authority, were not only to obtain evidence against offenders, but for the broad public purpose of protecting public health and the environment. The main issue was whether, upon a true construction of Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, the appellants were entitled to rely upon the privilege against self-incrimination to refuse to provide the information.
Held The appeal was dismissed.
In Saunders v United Kingdom (1997) 23 EHRR 313, the Court of Justice drew a line between the preparatory investigations of inspectors, which did not “adjudicate either in form or in substance”, and judicial inquiries. European jurisprudence under Article 6(1) was firmly anchored to the fairness of the trial and was not concerned with extra judicial inquiries. Similarly, although the council in the instant case had the power to prosecute in criminal proceedings, the request for information under section 71(2) of the Act could not be described as an adjudication “either in form or in substance”. The council’s requests were all for factual information and none invited any admission of wrongdoing. Saunders (supra) was no authority for allowing the appellants to refuse to answer the requests for information.
David Vaughan QC, Simon Stafford-Michael and David Stern (instructed by Le Brasseur J Tickle) appeared for the applicants; Witold Pawlak (instructed by the solicitor to Hertfordshire County Council) appeared for the respondent.
Sarah Addenbrooke, barrister