(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 Also – Saunders v United Kingdom ECHR 30-Sep-1994
Link between self-incrimination and presumption of innocence – use of compulsion. . .
Cited – in 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 . .
Cited – Deweer 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 . .
Cited – Orkem 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 . .
Cited – Funke 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. . .
Cited – Fayed 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 . .
Cited – Murray 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 . .
Cited by:
Cited – Regina v Kearns CACD 22-Mar-2002
The defendant had failed to account for the disappearance of a substantial part of his estate to the official receiver following his bankruptcy. He appealed his conviction for failing to provide an account, saying that the requirement to provide . .
Cited – Luca v Italy ECHR 27-Feb-2001
The accused had been convicted. After exercising his right to silence, there were read to the court accounts of statements made by co-accused but without an opportunity for him to cross examine the witnesses.
Held: Saunders had established the . .
Cited – Regina v Sewa Singh Gill and Paramjit Singh Gill CACD 31-Jul-2003
The appellants sought to challenge their convictions for cheating the Inland Revenue. They were accused of having hidden assets and income from the revenue. The appellants objected to the use at trial of material obtained in a ‘Hansard’ interview. . .
Cited – Kansal v The United Kingdom ECHR 27-Apr-2004
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 6-1 ; Pecuniary damage – claim rejected ; Non-pecuniary damage – finding of violation sufficient ; Costs and expenses (Convention proceedings) – . .
Cited – Regina v Mushtaq HL 21-Apr-2005
The defendant was convicted of fraud charges. He sought to have excluded statements made in interview on the basis that they had been obtained by oppressive behaviour by the police. His wife was very seriously ill in hospital and he had made the . .
Cited – Her Majesty’s Attorney General for Gibraltar v Shimidzu (Berllaque, Intervenor) PC 28-Jun-2005
(Gibraltar) The appellants sought to argue that the failure to allow an acquitted defendant any possible order for costs was a breach of the Constitution.
Held: Section 8 of the Constitution, like its analogue article 6 of the European . .
Cited – Holder v The Law Society Admn 26-Jul-2005
The applicant challenged the independence of the respondent’s disciplinary tribunal.
Held: The claim failed: ‘the nature of the Tribunal is entirely adequately independent and impartial for the purposes for which it is constituted. The . .
Cited – A and others v Secretary of State for the Home Department (No 2) HL 8-Dec-2005
The applicants had been detained following the issue of certificates issued by the respondent that they posed a terrorist threat. They challenged the decisions of the Special Immigration Appeals Commission saying that evidence underlying the . .
Cited – Regina v Hertfordshire County Council, ex parte Green Environmental Industries Ltd and Another HL 17-Feb-2000
A notice was given to the holder of a waste disposal licence to require certain information to be provided on pain of prosecution. The provision of such information could also then be evidence against the provider of the commission of a criminal . .
Cited – Hammerton v Hammerton CA 23-Mar-2007
The husband appealed against his committal for contempt of a court order in family proceedings. The court had heard the wife’s application for his committal at the same time as his application for contact with the children.
Held: The appeal . .
Cited – C Plc v P and Attorney General Intervening CA 22-May-2007
The respondent had been subject to a civil search, which revealed the existence of obscene images of children on his computer. He appealed against refusal of an order that the evidence should not be passed to the police as evidence. He said that the . .
Cited – Eastaway v Secretary of State for Trade and Industry CA 10-May-2007
The applicant had been subject to company director disqualification proceedings. Eventually he gave an undertaking not to act as a company director, but then succeeded at the ECHR in a complaint of delay. He now sought release from his undertaking . .
Cited – Regina v S and A CACD 9-Oct-2008
The defendant appealed against his conviction under the 2000 Act for failing to disclose the key used to encrypt a computer file. He was subject to a control order as a suspected terrorist. As the police raided his house, they found the key had been . .
Cited – In 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.
Held: The . .
Cited – K, 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.
Held: The information provided through . .
Cited – Hundal and Dhaliwal, Regina v CACD 3-Feb-2004
The defendants appealed against conviction and sentence for membership of an organisation proscribed under the 2000 Act. The defendants said that at the time they joined the organisation was not proscribed, and had left before it became proscribed. . .
Cited – Phillips v Newsgroup Newspapers Ltd and Others ChD 17-Nov-2010
The claimant had been assistant to a well known publicist. The defendant had settled an action brought by her principal for hacking his mobile telephone, in the course of which it appeared that the claimant’s phone had also been hacked. She now . .
Cited – Greater Manchester Police v Andrews Admn 23-May-2011
The CC appealed by case stated against a refusal of an order under the 2000 Act for the disclosure by the defendant of a cryptography key. The defendant had a history of sexual offences against children and had failed to keep to the terms of a . .
Cited – Her Majesty’s Advocate v P SC 6-Oct-2011
(Scotland) The appellant had been interviewed by police without being offered access to a solicitor. He complained that the interview and information obtained only through it had been used to found the prosecution.
Held: The admission of the . .
Cited – Ambrose v Harris, Procurator Fiscal, Oban, etc SC 6-Oct-2011
(Scotland) The appellant had variously been convicted in reliance on evidence gathered at different stages before arrest, but in each case without being informed of any right to see a solicitor. The court was asked, as a devolution issue, at what . .
Cited – Beghal v Director of Public Prosecutions SC 22-Jul-2015
Questions on Entry must be answered
B was questioned at an airport under Schedule 7 to the 2000 Act, and required to answer questions asked by appropriate officers for the purpose set out. She refused to answer and was convicted of that refusal , contrary to paragraph 18 of that . .
Cited – Regina v Kansal (2) HL 29-Nov-2001
The prosecutor had lead and relied at trial on evidence obtained by compulsory questioning under the 1986 Act.
Held: In doing so the prosecutor was acting to give effect to section 433.
The decision in Lambert to disallow retrospective . .
Cited – River East Supplies Ltd, Regina (on The Application of) v Crown Court At Nottingham Admn 28-Jul-2017
Privilege against self incrimination and application for production order by foreign state . .
Cited – Gold Nuts Ltd and Others v Revenue and Customs FTTTx 8-Feb-2016
INCOME TAX – CORPORATION TAX – preliminary hearing on matters of law – COP9 letter issued to Mr Budhdeo (‘Mr B’) – contractual disclosure offered and refused – whether FTT has jurisdiction to close a ‘COP9 enquiry’ – no -whether HMRC using SA and CT . .
Cited – RJ, Regina (on The Application of) v The Director of Legal Aid Casework Admn 22-Mar-2016
The claimant challenged a decision of the Director of Legal Aid Casework to refuse her application for legal aid to enable her to be represented at an inquest. . .
Cited – PNPF Trust Company Ltd (Pilots’ National Pension Fund, Trustee of) v Taylor and Others ChD 10-Jul-2009
Application to be joined to proceedings . .
Cited – JS v R CACD 29-Sep-2009
. .
Cited – JSC BTA Bank v Ablyazov and Others CA 27-Oct-2009
Appeal against disclosure orders made in support of freezing order. . .
Cited – Child Maintenance Enforcement Commission v Forrest Admn 14-May-2010
. .
Cited – The PNPF Trust Company Ltd v Taylor and Others ChD 28-Jun-2010
. .
Cited – Cadder v Her Majesty’s Advocate SC 26-Oct-2010
Statement without lawyer access was inadmissible
The accused complained that he had been convicted for assault and breach of the peace on the basis of a statement made by him during an interview with the police where, under the 1995 Act, he had been denied access to a lawyer.
Held: The . .
Cited – Maclean v Procurator Fiscal, Glasgow HCJ 19-Jan-2012
. .
Cited – Coogan v News Group Newspapers Ltd etc CA 1-Feb-2012
The claimants said that their voicemail accounts had been hacked by one defendant on behalf of the other. They sought discovery of records, and the defendants argued for the benefit of the privilege against self incrimination.
Lord Neuberger MR . .
Cited – Barclay and Others v HM Advocate HCJ 11-Apr-2012
. .
Cited – Lukstins v Her Majesty’s Advocate HCJ 14-Nov-2012
The appellant challenged his conviction for sexual crimes, saying that the taking of a swab from his mouth for a DNA test had been unlawful, and the evidence consequent to that should not have been admitted.
Held: The appeal was refused. Cowie . .
Cited – Akcine Bendrove Bankas Snoras v Antonov and Another ComC 4-Feb-2013
Application for discharge of world wide asset freezing order. . .
Cited – Mohan v Mohan CA 22-May-2013
Appeal from order dismissing the wife’s endeavour to rely on documents and statements made by the husband during the course of complex proceedings to enforce a financial remedy order in the wife’s favour. . .
Cited – Beghal v Director of Public Prosecutions Admn 28-Aug-2013
The court considered the compatibility of the powers in Schedule 7 of the 2000 Act to ‘stop, question, and search’ with a detainee’s human rights.
Held: The powers were valid and required. . .
Cited – JSC BTA Bank v Ablyazov and Others ComC 8-Aug-2014
The Claimant sought disclosure from the First and Second Respondents of documents relating to their assets which would attract legal professional privilege unless falling within the iniquity exception to such privilege, and which are currently held . .
Cited – Malik v Manchester Crown Court and others; Re A Admn 19-Jun-2008
The claimant was a journalist writing about terrorism. He had interviewed a man with past connections with Al-Qaeda, and he now objected to a production order for documents obtained by him in connecion with his writings. The court had acted on . .
Cited – Rottmann v Brittain CA 12-Nov-2008
The applicant sought leave to appeal against a refusal to adjourn his examination in bankruptcy fearing that the contents would become public prejudicing his criminal trial abroad. The court had allowed a private examination, but he felt this was . .
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