Resolution ResDH(2004)88

Two judgments of the European Court of Human Rights against the United Kingdom concerning violations of the right not to incriminate oneself

- judgment of 17 December 1996 in the case of Saunders against the United Kingdom

- judgment of 19 September 2000 (final on 19 December 2000 ) in the case of I.J.L., G.M.R. and A.K.P. against the United Kingdom

(Adopted by the Comm ittee of Ministers on 21 December 2004 at the 906 th meeting of the Ministers ' Deputies)

The Committee of Ministers, under the terms of former Article 54 of the Convention for the Protection of Human Rights and Fundamental Freedoms and of Article 46, paragraph 2 of the Convention (hereinafter referred to as “the Convention”) ,

Having regard to the judgment s of the European Court of Human Rights in the cases of Saunders and I.J.L. and others [1] , and transmitted to the Committee of Ministers for the supervision of their execution ;

Recalling that these cases originated in applications lodged against the United Kingdom and that the European Commission and the European Court declared admissible the applicants ' complaints that, in the framework of the criminal proceedings co nducted against them, they had been denied a fair hearing on account of the use made by the prosecution of the evidence which they had supplied u nder statutory powers 1 ;

Recalling that the European Court subsequently held in these cases that there had been a violation of the applicants ' right under Article 6, paragraph 1 , of the Convention not t o incriminate themselves in view of the use made by the prosecution at their trial of incriminatory statements which they had given under statutory compulsion to inspectors appointed by the Department of Trade and Industry 1 and awarded the applicants various sums as just satisfaction 1 ;

Having regard to the Rules adopted by the Committee of Ministers concerning the application of Article 46, paragraph 2, of the Convention as amended by Protocol No. 11, which Rules are applicable by decision of the Committee of Ministers to cases under former Article 54;

Having invited the government of the respondent state to inform it of the mea s ures which had been taken in consequence of the above mentioned judgment s , having regard to the United Kingdom ' s obligation under former Article 53 and under Article 46, paragraph 1, of the Conve n tion to abide by them ;

Having satisfied itself that, within the time-limit set, the G overnment of the United Kingdom paid all the applicants the sums awarded by the Euro pean Court as just satisfaction 1 ;

Whereas during the examination of the case by the Committee of Ministers, the Committee was informed of the outcome of the domestic proceedings en gaged by the applicants to have their convictions quashed and the measures taken by the Uni ted Kingdom authorities to prevent new violations of the same kind as that found in the present judgment s ; this information appears in A ppendix I to this resolution;

Considering, as regards the United Kingdom ' s obligation to ensure, as far as possible, restitutio in integrum for the applicant s , that the reasons advanced by the respondent government for not reopening the proceedings at issue do not dispense the Committee from examining, from the point of view of the Convention, whether such a measure , or other measures to erase the consequences of the violation, would be called for ;

Considering in this regard that the specific circumstances under which the impugned evidence was taken and used do not appear to cast any serious doubts on its reliability , and that no other elements appear to suggest that the conviction s w ere erroneous or otherwise arbitrary , the Committee is satisfied that the violation established by the European Court was not such as to present serious doubt s regarding the outcome of the proceedings at the basis of the applicants ' complaints (cf. Recommendation No. R (2000) 2 of the Committee of Ministers to member states on the re-examination or reopening of certain cases at domestic level following judgments of the European Court of Human Rights );

Concluding that the United Kingdom was thus not called upon , under Article 46 of the Convention, to adopt any measures over and above the just satisfaction awarded by the Court, in order to erase the consequences for the applicants of the violation s found ;

Recalling as regards the general measures which the respondent s tate was called upon to adopt without delay to prevent new , similar violations of the Convention , that such measures were adopted following the Court ' s judgment in the Saunders case ( see Interim Resolution DH (2000)27 and the supplementary information contained in the A ppendix II to this resolution ) ;

Declares that it has exe r cised its functions under former Article 54 and Article 46, paragraph 2, of the Convention in these case s .

Appendix I to Resolution ResDH(2004)88

Information provided by the Government of the United Kingdom during the examination of the cases of Saunders and I.J.L. and others

b y the Committee of Ministers

As regards individual measures

The Government recalls that all applicants were convicted of criminal offences, notwithstanding the fact that , in the view of the Court of Appeal, a significant part of the prosecution case against them consisted of transcripts of interviews which they had given , under statutory compulsion, to Inspectors appointed by the Department of Trade and Industry , and that the European Court found that the use made of this evidence in the criminal proceedings violated the applicants ' right to silence and not to incriminate oneself .

Since s uch use of evidence was specifically permitted by the legislation in forc e at the relevant time (Section 434 of the Companies Act 1985), the request submitted by the applicants in these cases to have their convictions quashed following the Strasbo urg judgment was rejected by domestic courts (the Court of Appeal and the House of Lords) , which stressed that the safety of criminal convictions must be examined according to the law as it stood at the time of the trial, since neither the legislative reform of 1999 (see general measures below) nor the enactment of the 1998 Human Rights Act had had retrospective effect.

The Government further notes that, according to the finding of the Court of Appeal, a substantial body of evidence existed against the applicants besides the interviews given to inspectors appointed by the D epartment of Trade and Industry , and it was thus impossible to speculate on what the outcome of the trial would have been in the absence of the impugned evidence. In addition, the House of Lords underlined that if there were any o ther allegations of unfairness besides those relating to the use of evidence obtained under statutory compulsion, the trial court could have examined these under sectio n 78 of the Police and Criminal Evidence Act 1 9 8 4. Moreover, the Court of Appeal referred to the fact that a new jury trial more than 1 0 years after the original trial and more than 1 4 years after the events with which the trial would be concerned was not appropriate, particularly in the light of the a ppellants ' age and state of health.

In such circumstances, the Government considers that further measures such as quashing the criminal conviction s or otherwise erasing their consequences would plac e the applicants in a better position than they were in before the violation s occurred , a situation which would go beyond the United Kingdom ' s obligations under Article 46 of the Convention.

As regard s general measures

I nterim measures were adopted by the Attorney General in February 1998 to prevent as far as possible under the existing legislation new similar violations of the Convention. The measures took the form of a guidance note to prosecuting authorities about the handling of cases where the evidence available to the prosecution include d answers obtained by the exercise of compulsory powers.

According to the note, answers obtained pursuant to a procedure which include d the power to compel answers, whatever the investigative or regulatory regime, could not be used in subsequent criminal proceedings as part of the prosecution case, except for the very limited purposes of proceedings for offences arising out of the giving of evidence (e.g. perjury). The guidance note therefore cover ed not only evidence obtained by the exercise of powers under Section 434 of the Companies Act 1985, which was at issue in the case of Saunders against the United Kingdom, but also evidence obtained under analogous powers. In addition, the guidance restrict ed the use by prosecutors of compulsorily acquired answers for the purposes of cross-examination.

Legislative work also started, leading to the Youth Justice and Criminal Evidence Act 1999 which entered into force in 2000 . This Act added a new provision to Section 434 of the 1985 Companies Act, providing that no evidence relating to the answers given to inspectors appointed by the Department of Trade and Industry by persons under investigation can be adduced in criminal proceedings against them , except for limited purposes .

The Government of the United Kingdom considers in view of the measures taken that the violation s of Article 6, paragraph 1 , of the Convention found by the European Court in the present case s ha ve been fully remedied and that the United Kingdom has therefore complied with its obligations under Article 46, paragraph 1 , of the Convention.

Appendix II

T he Saunders case originated in an application (No. 1 9 1 87/9 1 ) against the United Kingdom , lodged with the European Commission of Human Rights on 20 July 1 988 under former Article 25 of the Convention by Mr Ernest Saunders , a British national . T he Commission declared admissible the complaint that the use, at the applicant ' s trial, of statements made by him to inspectors appointed by the Department of Trade and Industry under their compulsory powers had deprived him of a fair hearing.

The case was brought before the Court by the Commission and the Government of the United Kingdom on 9 and 1 3 September 1 994 respectively.

In its judgment of 17 December 1996 the Court:

- held, by sixteen votes to four, that there had been a violation of Article 6, paragraph 1, of the Convention;

- held, unanimously, that the finding of a violation constituted sufficient just satisfaction in respect of any non-pecuniary damage sustained;

- held, unanimously, that th e government of the respondent s tate was to pay the applicant, within three months, 75 000 pounds sterling, in respect of costs and expenses, and that simple interest at an annual rate of 8% should be payable from the expiry of the above-mentioned three months until settlement;

- dismissed, unanimously, the reminder of the claim for just satisfaction.

On 27 February 1 997, within the time-limit set, th e government of the respondent s tate paid the applicant the sum provided for in the judgment of 1 7 December 1 996.

T he I . J . L . and others case originated in three applications (Nos. 29522/95, 30056/96 and 30574/96) against the United Kingdom , lodged with the European Commission of Human Rights on 30 November, 1 8 December and 8 December respectively, under former Article 25 of the Co n vention, by Mr I.J.L., Mr G.M.R. and Mr A.K.P., three British nationals . T he Court, seised of the case under Article 5, paragraph 2, of Protocol No. 1 1 , declared admissible the applicants ' complaints that, in the framework of the criminal proceedings conducted against them, they were denied a fair hearing on account of ( 1 ) the use made by the prosecution of the evidence which they supplied under statutory powers; (2) the alleged improper collusion between the agencies involved; (3) the alleged failure of the prosecution to disclose materials of relevance to their defence; and (4) the alleged unreasonableness of the leng th of the criminal proceedings.

In i ts judgment of 19 September 2000 the Court unanimously:

- held that there had been a violation of Article 6, paragraph 1 , of the Convention as regards the use made by the prosecution at the applicants ' trial of incriminatory statements which they had given under statutory compulsion to inspectors appointed by the Department of Trade and Industry;

- held that there had b een no violation of Article 6, paragraph 1 , of the Convention as regards the alleged improper collusion between inspectors appointed by the Department of Trade and Industry and the prosecuting authorities;

- held that there had b een no violation of Article 6, paragraph 1 , of the Convention as regards the alleged non-disclosure of materials by the prosecution;

- held that there had been no violation of Article 6, paragraph 1 , of the Convention as regards the length of the criminal proceedings against the applicants;

- held that the applican ts ' complaint under Article 6, paragraph 2 , of the Convention regarding the use made by the prosecution at their trial of the transcripts of their interviews with the DTI inspectors g ave rise to no separate issue .

I n its judgment on just satisfaction of 25 September 2001 (final on 25 December 2001) the Court unanimously:

- held that the government of the respondent state was to pay the applicants, within three months from the date at which the judgment became final, a global amoun t of 40 000 pounds sterling in respect of costs and expenses, plus any value-added tax that may be chargeable, and that simple interest at an annual rate of 7.5% would be payable on this sum from the expiry of the above-mentioned three months until settlement;

- dismissed the remainder of the applicants ' claim for just satisfa c tion;

On 24 March 2002, within the time-limit set, the govern ment of the respondent state paid the a p plicants the sum provided for in the judgment of 25 September 200 1 .

[1] For further details, see Appendix II to this resolution.