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Saunders v The United Kingdom: ECHR 17 Dec 1996

(Grand Chamber) The subsequent use against a defendant in a prosecution, of evidence which had been obtained under compulsion in company insolvency procedures was a convention breach of Art 6. 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. 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 purpose of DNA testing.
Hudoc ‘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 . . 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.
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 purpose of DNA testing.’
‘The court does not accept the Government’s premise on this point since some of the Applicant’s answers were in fact of an incriminating nature in the sense that they contained admissions to knowledge of information which tended to incriminate him . . In any event, bearing in mind the concept of fairness in Article 6, the right not to incriminate oneself cannot reasonably be confined to statements of admission of wrongdoing or to remarks which are directly incriminating. Testimony obtained under compulsion which appears on its face to be of a non-incriminating nature – such as exculpatory remarks or mere information on questions of fact – may later be deployed in criminal proceedings in support of the prosecution case, for example to contradict or cast doubt upon other statements of the accused or evidence given by him during the trial or to otherwise undermine his credibility. Where the credibility of an accused must be assessed by a jury, the use of such testimony may be especially harmful. It follows that what is of the essence in this context is the use to which evidence obtained under compulsion is put in the course of the criminal trial.’

MM. R. Bernhardt, President
Times 18-Dec-1996, 19187/91, [1997] 23 EHRR 313, 1996-VI, [1998] 1 BCLC 362, [1996] ECHR 65, 2 BHRC 358, [1997] BCC 872
Worldlii, Bailii
European Convention on Human Rights 6.1, Companies Act 1985 434(5)
Human Rights
Citing:
See AlsoSaunders v United Kingdom ECHR 30-Sep-1994
Link between self-incrimination and presumption of innocence – use of compulsion. . .
Citedin re Pergamon Press Ltd CA 1971
The court was asked as to the duties of inspectors appointed under the 1948 Act. Sachs LJ said: ‘The inspectors’ function is in essence to conduct an investigation designed to discover whether there are facts which may result in others taking . .
CitedDeweer v Belgium ECHR 27-Feb-1980
The applicant, a Belgian butcher, paid a fine by way of settlement in the face of an order for the closure of his shop until judgment was given in an intended criminal prosecution or until such fine was paid.
Held: Since the payment was made . .
CitedOrkem v Commission (Judgment) ECJ 18-Oct-1989
The court considered the powers of the Commission to demand information in an 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 . .
CitedFunke v France ECHR 25-Feb-1993
M. Funke successfully challenged his conviction for failing to provide documents which the customs authorities had demanded of him, on the grounds that his rights under Article 6 had been infringed: ‘The Court notes that the customs secured Mr. . .
CitedFayed v United Kingdom ECHR 6-Oct-1994
The Secretary of State had appointed inspectors to investigate and report on a company takeover. In their report, which was published, the inspectors made findings which were critical of and damaging to the applicants, who relied on the civil limb . .
CitedMurray v The United Kingdom ECHR 8-Feb-1996
The applicant had been denied legal advice for 48 hours after he had been taken into custody.
Held: There had been a violation of article 6(1) read with article 6(3)(c). However, it was not a breach of human rights to draw inferences from the . .

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CitedLuca v Italy ECHR 27-Feb-2001
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CitedRegina v S and A CACD 9-Oct-2008
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CitedIn re Rottmann (a Bankrupt) CA 18-Mar-2009
The bankrupt renewed his request for permission to appeal against a refusal to adjourn his public examination in bankruptcy. The court had allowed a private examination so as not to prejudice pending criminal proceedings in Germany.
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CitedK, Regina v CACD 28-Jul-2009
The defendant appealed against orders allowing the use in evidence against him of information provided by him in ancillary relief proceedings, and without prejudice negotations with his wife’s solicitors.
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CitedHundal and Dhaliwal, Regina v CACD 3-Feb-2004
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CitedGreater Manchester Police v Andrews Admn 23-May-2011
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CitedHer Majesty’s Advocate v P SC 6-Oct-2011
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CitedRegina v Kansal (2) HL 29-Nov-2001
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CitedMaclean v Procurator Fiscal, Glasgow HCJ 19-Jan-2012
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CitedCoogan v News Group Newspapers Ltd etc CA 1-Feb-2012
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. .
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CitedRottmann v Brittain CA 12-Nov-2008
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Lists of cited by and citing cases may be incomplete.

Human Rights, Criminal Practice, Company, Criminal Evidence, Insolvency

Leading Case

Updated: 11 November 2021; Ref: scu.165463

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