FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 21413/02 by Yash KANSAL against the United Kingdom

The European Court of Human Rights (Fourth Section) , sitting on 28 January 2003 as a Chamber composed of

Mr M. Pellonpää , President , Sir Nicolas Bratza , Mr A. Pastor Ridruejo , Mrs E. Palm , Mr M. Fischbach , Mr J. Casadevall , Mr S. Pavlovschi , judges , and Mr M. O’Boyle , Section Registrar ,

Having regard to the above application lodged on 21 May 2002,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Yash Kansal, is a United Kingdom national, who was born in 1947 and lives in Oldham, United Kingdom.

A. The circumstances of the case

The facts of the case, as submitted by the applicant , may be summarised as follows.

From 1977, the applicant, a pharmacist, ran a company which operated 20 chemist shops but following financial problems, the company went into liquidation in February 1987. On 20 May 1987, a bankruptcy petition was presented against the applicant and on 11 March 1988, a bankruptcy order was made.

On 16 March and 20 May 1988, the applicant was interviewed by an examiner at the office of the official receiver. On 29 July 1988, the applicant was publicly examined by the official receiver. Under section 291 of the Insolvency Act 1986, the applicant was obliged to answer the questions put to him by the official receiver and if he failed to comply without reasonable excuse, he would have been guilty of contempt of court and liable to punishment by a fine or imprisonment.

On 16 March and 23 March 1988, the Halifax Building Society advanced 150,000 pounds sterling (GBP) and GBP 116,250 respectively to the applicant on the security of his house. On 23 March 1988, the applicant’s wife collected part of the advance, GBP 104,000, from the applicant’s solicitor and took it to India in a bin liner.

The applicant was subsequently charged with two offences of obtaining property by deception contrary to section 15(1) of the Theft Act 1968 on the grounds that he had misled the building society into advancing money by false representations regarding his annual income, his debts and the bankruptcy proceedings against him. He was also charged with two offences of removing property required to be delivered to the official receiver and failing to account for the loss of property while bankrupt contrary to section 354(2) and (3) of the Insolvency Act 1986.

At the applicant’s trial in February 1992, the prosecution introduced as evidence the transcript of the examination of the applicant by the official receiver in the bankruptcy proceedings. The applicant submitted that the transcript was inadmissible under section 31 of the Theft Act 1968 which provides that a statement or admission made by a person answering questions in proceedings for the administration of any property or for an account of any property or dealings with property is not admissible in evidence against that person. However, the trial judge rejected this submission and ruled the evidence admissible under section 433 of the Insolvency Act 1986 which provides that statements made in pursuance of a requirement imposed by the Act may be used in evidence against the maker of the statement.

The full transcript of the applicant’s examination by the official receiver was placed before the jury and in his summing up, the judge stated that the transcript “could be very important”. The prosecution used the transcript to show that the applicant had given false answers in his bankruptcy examination.

On 18 February 1992, the applicant was convicted of the four offences charged and was sentenced to 15 months’ imprisonment. The applicant appealed against conviction and on 12 May 1992, the Court of Appeal dismissed his appeal deciding, inter alia , that the transcript of the bankruptcy examination was admissible under section 433 of the Insolvency Act 1986 which abrogated the privilege against self-incrimination. Leave to appeal against this decision was refused by the Court of Appeal and by the House of Lords.

On 27 June 1995, the Royal Pharmaceutical Society of Great Britain decided to remove the applicant’s licence to practise as a pharmacist on the grounds of unfitness due to his involvement in deception connected with his bankruptcy proceedings and a previous reprimand relating to the cleanliness of his premises.

On 27 April 1998, the Criminal Cases Review Commission referred the applicant’s case back to the Court of Appeal due to changes in the domestic law on obtaining mortgage advances by false statements. On 20 June 2000, the Commission added the ground that, following the decision of the European Court of Human Rights in Saunders v. the United Kingdom ( judgment of 17 December 1996, Reports of Judgments and Decisions 1996-VI) and the introduction of the Human Rights Act 1998, the admission of answers given under compulsion during the bankruptcy examination may have been in breach of Article 6 of the Convention and rendered the applicant’s conviction unsafe.

On 24 May 2001, the Court of Appeal overturned the applicant’s conviction on the grounds that the answers given by the applicant in his examination by the official receiver had been wrongly admitted at trial. The court found that the Human Rights Act 1998 could apply retrospectively in appeals against convictions which took place before the legislation came into force. The court went on to find that the admission of the transcript of the examination of the applicant in bankruptcy proceedings was in breach of section 6(1) of the Human Rights Act 1998 since the admission of this statement in criminal proceedings violated Article 6 of the Convention.

The Court of Appeal certified a point of law to the House of Lords, requesting it to consider whether the Human Rights Act 1998 could apply retrospectively in appeals arising from a reference of a case to the Court of Appeal by the Criminal Cases Review Commission.

The Crown appealed to the House of Lords against the decision of the Court of Appeal of 24 May 2001. On 29 November 2001, the House of Lords allowed the appeal, holding that they were bound to follow the earlier decision of the House in R v. Lambert (2001), 3 W.L.R. 206, which had decided that the Human Rights Act 1998 could not apply retrospectively to allow a defendant whose trial took place before the Act came into force to rely on a breach of the Convention in a later appeal. Three of the five Law Lords believed that R v. Lambert had been decided incorrectly. Lord Lloyd proposed referring the applicant’s case to a panel of seven Law Lords which would have the power to reverse the decision in R v. Lambert but the required majority for such a reference did not exist.

B. Relevant domestic law

1. Compulsion to Answer Questions During Bankruptcy Proceedings

Section 291(4) of the Insolvency Act 1986 provides as follows:

“The bankrupt shall give the official receiver such inventory of his estate and such other information, and shall attend on the official receiver at such times, as the official receiver, may for any of the purposes of this Chapter require;...”

Section 291(6) goes on to stipulate that:

“If a bankrupt without reasonable excuse fails to comply with any obligation imposed by this section, he is guilty of a contempt of court and liable to be punished accordingly (in addition to any other punishment to which he may be subject).”

The Divisional Court would deal with such a contempt of court and the sentence could be a fine or imprisonment for a maximum of two years (section 14 of the Supreme Court Act 1981).

Section 290(1) of the Insolvency Act 1986 provides that the official receiver may apply to the court for the public examination of the bankrupt. Cases such as Re Paget (1927) 2 Ch. 85 and R v. Harris (1970) 1 W.L.R. 1252 establish that the bankrupt is not entitled to refuse to answer questions during the public examination on the grounds that he may incriminate himself.

2. The Admission of Statements Made in Bankruptcy Proceedings as Evidence in Criminal Trials

At the time of the applicant’s trial, section 433 of the Insolvency Act 1986 provided that:

“In any proceedings (whether or not under this Act) -

(a) a statement of affairs prepared for the purposes of any provision of this Act which is derived from the Insolvency Act 1985 and

(b) any other statement made in pursuance of a requirement imposed by or under any such provision or by or under rules made under this Act,

may be used in evidence against any person making or concurring in making the statement.”

In contrast, section 31(1) of the Theft Act 1968 stipulates that a statement or admission made by a person answering questions in proceedings for the administration of any property is not admissible in evidence in criminal proceedings relating to an offence under the Act:

“A person shall not be excused, by reason that to do so may incriminate that person or the wife or husband of that person of an offence under this Act -

(a) from answering any question put to that person in proceedings for the recovery or administration of any property, for the execution of any trust or for an account of any property or dealings with property; or

(b) from complying with any order made in any such proceedings

but no statement or admission made by a person in answering a question put or complying with an order made as aforesaid shall, in proceedings for an offence under this Act, be admissible  in evidence against that person ... ”

In R v. Kansal (1993) 95 Cr.App.R . 348 (the decision on the first appeal of this applicant), the Court of Appeal held that the Insolvency Rules 1986 (S.I. 1986 No. 1925) made it clear that the privilege against self-incrimination was abrogated in any public examination of the bankrupt and that thereafter, section 433 of the Insolvency Act 1986 rendered the evidence admissible in a criminal trial notwithstanding section 31 of the Theft Act 1968.

Following the decision of this Court in Saunders v. United Kingdom and the planned introduction of the Human Rights Act 1998, section 59 and Schedule 3 of the Youth Justice and Criminal Evidence Act 1999 amended section 433 of the Insolvency Act 1986. A second sub-paragraph (section 433(2)) was inserted which reads:

“(2) However, in criminal proceedings in which any such person is charged with an offence to which this subsection applies–

(a) no evidence relating to the statement may be adduced, and

(b) no question relating to it may be asked,

by or on behalf of the prosecution, unless evidence relating to it is adduced, or a question relating to it is asked, in the proceedings by or on behalf of that person.”

This provision was not in force at the time of the applicant’s trial.

It is possible for a court to refuse to admit evidence on the grounds of fairness. Section 78(1) of the Police and Criminal Evidence Act (PACE) 1984 provides that:

“In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.”

COMPLAINTS

The applicant complains under Article 6 of the Convention that the statements obtained under compulsion in bankruptcy proceedings should not have been admitted in criminal proceedings against him.

The applicant further complains under Articles 6 and 13 of the Convention that the House of Lords should have overruled the earlier incorrectly decided case of R v. Lambert and the failure to do so violated his right to a fair trial and his right to an effective remedy for the earlier violation of his right to a fair trial.

Finally, in a letter of 21 May 2002, the applicant complains that the Royal Pharmaceutical Society of Great Britain wrongly removed his licence to practise as a pharmacist.

THE LAW

1. The applicant complains under Articles 6 and 13 of the Convention that the House of Lords should have overruled its decision in R v. Lambert.

Article 6 § 1 provides as relevant that:

“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

Article 13 provides that:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

The Court recalls that, according to Article 19 of the Convention, its only task is to ensure the observance of the obligations undertaken by the Parties in the Convention. In particular, it is not competent to deal with an application alleging that errors of law or fact have been committed by domestic courts, except where it considers that such errors might have involved a possible violation of any of the rights and freedoms set out in the Convention. In this context, applicants may not complain under Article 6, which deals primarily with fairness of procedures, that a domestic court made the wrong decision. The Court has no jurisdiction under Article 6 to substitute its own findings of fact or law for those of domestic courts, which are in the best position to assess the evidence before them and apply the relevant domestic law. In this case, the House of Lords carefully evaluated the facts and domestic law in adversarial proceedings at which the applicant was represented and found that it was bound to follow its earlier decision in R v. Lambert (2001). No issues arise in the present case which would require the Court to exercise its supervisory jurisdiction over the decision of the domestic court. Nor does any separate issue arise under Article 13 in these circumstances. Therefore, the Court considers that this part of the applicant’s complaint is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

2. The applicant further complains that the Royal Pharmaceutical Society of Great Britain wrongly revoked his licence to practise as a pharmacist. He does not invoke any specific Article of the Convention.

The Court observes that there is no right under the Convention to practise a profession and therefore insofar as the applicant complains that he is no longer able to practise as a pharmacist, this complaint appears to be incompatible ratione materiae . If the applicant wishes to complain that his licence was revoked in violation of Article 6, it is not clear that the Royal Pharmaceutical Society of Great Britain is an organisation for which the State is responsible since is not a government body but rather a professional association for pharmacists. In any event, it seems that the applicant did not challenge the decision of the society in the High Court as he was entitled to do and therefore, failed to exhaust domestic remedies as required by Article 35 § 1 of the Convention. Moreover, the decision of the society was taken on 27 June 1995 while the complaint was received by the Court on 21 May 2002, clearly placing the complaint outside the six month time limit stipulated by Article 35 § 1. For these reasons, the Court finds that this complaint must be rejected pursuant to Article 35 § 4 of the Convention.

3. Finally, the applicant complains that his admissions made under compulsion to the official receiver were used against him contrary to Article 6 § 1 of the Convention. Similar issues arise as in the case of Saunders v. the United Kingdom (cited above). The Court decides to adjourn the further examination of this part of the application pending its communication to the respondent Government.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant’s complaint concerning the use of admissions made under compulsion;

Declares the remainder of the application inadmissible.

Michael O’Boyle Matti Pellonp ää Registrar President