Judgments - Regina v Lyons and others (Appellants) (on appeal from the Court of Appeal (Criminal Division)

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    51. The reason why Parliament provided that the answers which the appellants were compelled to give were admissible in evidence was explained by Lord Taylor CJ in the judgment of the Court of Appeal which dismissed the appellants' second appeal (R v Saunders and others [1996] 1 Cr App R 463, 474F:

    "Mr Caplan referred to the long established common law principle that no person should be required to incriminate himself. However, there is no doubt that Parliament can override that principle. It has done so for example in the fields of insolvency and company fraud. The rationale is said to be that the unravelling of complex and devious transactions in those fields is particularly difficult and those who enjoy the immunities and privileges afforded by the Bankruptcy Laws and the Companies Acts must accept the need for a regime of stringent scrutiny especially where fraud is suspected."

    52. After the dismissal of the second appeal the appellant, Mr Saunders, brought an application to the European Court in which he complained that the use at his trial of the answers which he was compelled to give to the inspectors deprived him of a fair hearing in violation of Article 6(1) of the European Convention on Human Rights ("the Convention"). This complaint was upheld by the European Court which held that there had been a violation of Article 6(1) and stated at paragraph 74 of its judgment delivered on 17 December 1996 ((1996) 23 EHRR 313):

    "[The Court] does not accept the Government's argument that the complexity of corporate fraud and the vital public interest in the investigation of such fraud and the punishment of those responsible could justify such a marked departure as that which occurred in the present case from one of the basic principles of a fair procedure. Like the Commission, it considers that the general requirements of fairness contained in Article 6, including the right not to incriminate oneself, apply to criminal proceedings in respect of all types of criminal offences without distinction, from the most simple to the most complex. The public interest cannot be invoked to justify the use of answers compulsorily obtained in a non-judicial investigation to incriminate the accused during the trial proceedings."

    53. The other appellants subsequently brought a similar application to the European Court, and in a judgment delivered on 19 September 2000 the Court again held for the reasons given by it in Mr Saunder's case that their rights under Article 6(1) had been violated.

    54. On the application of the appellants the Criminal Cases Review Commission, subsequent to the judgment of the European Court in September 2000, referred the appellants' cases back to the Court of Appeal, and on 21 December 2001 the Court of Appeal again dismissed the appellants' appeals by the judgment now under appeal [2002] 2 Cr App R 210.

    55. Mr Emmerson QC, in his skilful argument on behalf of the appellants, advanced two main propositions to the House which I summarise as follows. The first proposition was that the United Kingdom had entered into the Convention, an international treaty, and had agreed in Article 1 to secure to everyone within its jurisdiction the rights and freedoms (including the right to a fair trial) defined in section 1 of the Convention. Article 41 (originally Article 50) of the Convention provides:

    "If the Court finds that there has been a violation of the Convention or the protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party."

Article 46 (originally Articles 53 and 54) provides:

    "1.  The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.

    2.  The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution."

Therefore the United Kingdom, including the courts of the United Kingdom, was obliged to abide by the judgments of the European Court that the rights of the appellants to a fair trial had been violated. Accordingly the Court of Appeal in hearing the appellants' third appeal after the European Court had given its judgments, should have held that the answers given to the inspectors' questions were inadmissible in evidence on the ground of unfairness and should have quashed the convictions, the court having observed in paragraph 47 of their judgment that

    "if we concluded that the compelled answers should not have been admitted in evidence, or if we concluded that we were bound to give effect to the Strasbourg Court's decision that the trial was unfair by examining anew the safety of the convictions, we would not uphold the convictions on the basis that they are safe in any event."

    56. Mr Emmerson's second main proposition was that a ruling by the Court of Appeal in December 2001 quashing the convictions would not have been contrary to the will of Parliament as expressed in section 434(5) because Parliament had accepted and given effect to the judgments of the European Court by enacting section 59 of, and Schedule 3 to, the Youth Justice and Criminal Evidence Act 1999 (coming into operation on 14 April 2000) which amended section 434 by providing in respect of offences (including those with which the appellants were charged):

    "4.  The Companies Act 1985 is amended as follows.

    5.  In section 434 (production of documents and evidence to inspectors conducting investigations into companies), after subsection (5) (use of answers given to inspectors) insert—

    '(5A)  However, in criminal proceedings in which that person is charged with an offence to which this subsection applies—

    (a)  no evidence relating to the answer 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.' "

    Mr Emmerson therefore challenged the correctness of the statement by Rose LJ in paragraph 54 of the judgment of the Court of Appeal that:

    "the will of Parliament as expressed in section 434 trumps any international obligation".

    57. I consider that it is desirable to consider, first, Mr Emmerson's second main proposition, because if it is incorrect and if Rose LJ was right to state that the will of Parliament as expressed in section 434 trumps any international obligation, the appeals must fail irrespective of whether, assuming that the matter was not concluded in favour of the Crown by section 434(5), there was validity in Mr Emmerson's first main proposition.

    58. Leaving aside any question as to the primacy of European Community law which does not arise in this case, Parliament is the supreme law-making body for the United Kingdom and a statute enacted by Parliament which cannot be read under section 3(1) of the Human Rights Act 1998 in a way which is compatible with the Convention prevails over any provision of the Convention or any judgment of the European Court whether the statute was passed before or after the coming into operation on 2 October 2000 of the 1998 Act which incorporated most of the provisions of the European Convention into United Kingdom law. The sovereignty of Parliament and the supremacy of an Act of Parliament over the Convention is recognised and confirmed by section 4(6) of the 1998 Act which provides that a declaration by a court that a provision of a statute is incompatible with a Convention right does not affect the validity, continuing operation or enforcement of that statutory provision.

    59. Therefore, on first consideration, it appears that the Court of Appeal were clearly right in deciding that they must give effect to what Parliament had provided in section 434(5), which had not been amended at the time of the trial, and that they should hold that the admission of the answers was not unfair, notwithstanding that such a ruling was contrary to the judgments of the European Court. As Lord Bingham CJ stated in R v Staines and Morrisey [1997] 2 Cr App R 426, 442D in rejecting an argument similar to that advanced by the present appellants as to the unfairness of admitting answers given to inspectors exercising coercive powers of interrogation:

    "If the Court were to rule here that this evidence should be excluded, it would be obliged to exclude such evidence in all such cases. That would amount to a repeal, or a substantial repeal, of an English statutory provision which remains in force in deference to a ruling [by the European Court in Saunders v United Kingdom] which does not have direct effect and which, as a matter of strict law, is irrelevant."

Lord Bingham further stated at page 443D:

    "the section here expressly authorises the use of evidence so obtained and that, as we see it, amounts to a statutory presumption that what might otherwise be regarded as unfair is, for this purpose and in this context, to be treated as fair, at any rate in the absence of special features which would make the admission of the evidence unfair."

    60. However, as I have stated in paragraph 9 above, Mr Emmerson submitted that a ruling by the Court of Appeal that the answers were admitted in evidence unfairly would not have been in breach of the will of Parliament. Section 2(1) of the Criminal Appeal Act 1968 provides:

    "Subject to the provisions of this Act, the Court of Appeal—

    (a)  shall allow an appeal against conviction if they think that the conviction is unsafe; and

    (b)  shall dismiss such an appeal in any other case."

    Mr Emmerson emphasised that section 2(1) provides that it is the duty of the Court of Appeal to allow an appeal if they think that "the conviction is unsafe". Therefore he submitted that the question for the Court of Appeal was not, was the conviction unsafe at the time the jury returned their verdict, but was it unsafe at the time when the Court of Appeal considered the appeals and gave their decision. He further submitted that at the time when the Court of Appeal considered the appeals Parliament, by enacting section 59 of, and Schedule 3 to, the 1999 Act, had made it clear that it considered that the judgments of the European Court in the appellants' applications should be complied with in the United Kingdom and that it accepted that it was unfair to admit in evidence against them answers to questions put to persons pursuant to inspectors' powers under section 434. Therefore, rather than complying with the will of Parliament, the Court of Appeal in dismissing the appeals had acted contrary to the will of Parliament in holding that the convictions, which were substantially based on the answers admitted in evidence, were safe.

    61. Recognising that the decisions of the House in R v Lambert [2001] 3 WLR 206 and R v Kansal (No. 2) [2002] 2 AC 69 established that a person who had been convicted at a trial which took place before the Human Rights Act 1998 came into operation on 2 October 2000 could not rely on the rights given by sections 6 and 7 of that Act in an appeal against conviction heard by the Court of Appeal after that date, Mr Emmerson made it clear that in advancing his submissions he was not seeking to rely on the provisions of the 1998 Act.

    62. I am unable to accept Mr Emmerson's submission that the Court of Appeal would have been acting in accordance with the will of Parliament if they had quashed the convictions of the appellants. In my opinion the Court of Appeal were right to hold that it was the intention of Parliament that the admission in evidence at the appellants' trial of the answers which they had given was not to be regarded as unfair. The will or intention of Parliament is to be found in the words which Parliament has used. Parliament provided in section 434(5) that an answer given by a person to inspectors might be used in evidence against him. Subsection (5A) was appended to section 434 by the 1999 Act and that Act did not come into operation until 14 April 2000. A statute has only a prospective effect unless the contrary intention clearly appears, and therefore the intention of Parliament in respect of the use in evidence at a trial taking place before 14 April 2000 of answers given to inspectors was that the answers should not be excluded on the grounds of unfairness. Accordingly I am in full agreement with the passage in paragraph 54 of the judgment of the Court of Appeal where Rose LJ states:

    "However, and determinatively, even if the failure to re-open the appellants' convictions might give rise to violation of Article 46, domestic law precludes reliance on any such violation in the circumstances of this case. The fact of violation could not have led to the exclusion of the answers at the trial, applying the approach available under domestic law at the time, because this would have amounted to partial repeal of legislation enacted by Parliament which authorised the use of the evidence (see R v Staines and Morrisey [1997] 2 Cr App R 426 at 442C, approved by Lord Hope in Kansal at paragraph 86 to which we return later). …. Put another way, the will of Parliament as expressed in s 434 trumps any international obligation."

    63. Moreover as Parliament did not intend that the provisions of the Human Rights Act 1998 would have a retrospective effect on the validity of a conviction which took place before 2 October 2000 it is improbable that Parliament intended that the change in the law coming into operation on 14 April 2000 effected by the 1999 Act would have a retrospective effect on the validity of a conviction which took place before that date.

    64. A further submission advanced on behalf of the appellants was based on the guidelines issued by the Attorney General in February 1998 which were designed to take into account the decision of the European Court in the application brought by Mr Saunders against the United Kingdom. Paragraph 1 of the guidelines stated:

    "The purpose of this note is to provide guidance for prosecuting authorities in England and Wales and in Northern Ireland about the approach to be adopted towards evidence available to prosecutors in the form of answers obtained by the exercise of compulsory powers such as those available under s 434 of the Companies Act 1985. It takes account of the judgment of the European Court of Human Rights in Saunders v UK (1997) 23 EHRR 313).

Paragraph 3 stated:

    "In all cases the prosecution should not normally (ie. subject to the discretionary exceptions mentioned in paragraph 4) use in evidence as part of its case or in cross-examination answers obtained under compulsory powers."

    65. Mr Emmerson relied on the judgment of the Court of Appeal (Criminal Division) in R v Faryab (22 February 1999, unreported). In that case a trial took place in March 1998 after the Attorney General had issued his guidelines, but at the time of the trial the existence of the guidelines was not known to counsel for the prosecution or the defence or to the judge. At the trial the prosecution put in evidence and placed strong reliance on answers to questions which the defendant had been compelled to give in the course of an interview conducted pursuant to the Insolvency Act 1986. The defendant appealed against his conviction on the ground that, having regard to paragraph 3 of the guidelines, his answers should not have been admitted in evidence against him. The appeal was allowed and Gray J stated:

    "[Crown counsel] has candidly, and in our judgment inevitably, conceded that, if the existence of those guidelines had been known to those involved in the trial, then the evidence of the answers given by the appellant in his interview would probably not have been adduced. It follows from that concession and from our conclusion as to the non-availability of exception (i) in paragraph 4 of the guidelines that the jury was in the present case provided with evidence which had at least the potential to give rise to unfairness to the appellant."

Gray J further stated that the appellant's contention was valid:

    "that in the light of the decision of [the European Court in] Saunders and the ensuing guidelines, the appellant's answers in his compulsory interview should not have been admitted in evidence".

    66. Mr Emmerson submitted that in this case the Court of Appeal should have followed the same course as that taken by the Court of Appeal in R v Faryab and should have held that the answers of the appellants should not have been admitted in evidence. In the alternative he submitted that the Court of Appeal should have stopped the Crown from relying on the answers in seeking to uphold the convictions. I am unable to accept either of these submissions. As I have stated in an earlier part of this opinion, section 434(5) makes it clear that the admission in evidence of the appellants' answers at the trial was not unfair either at the time of the trial or when considered at the time of the hearing of the appeals in December 2001. The issuing of guidelines by the Attorney General cannot make unfair what Parliament has stated to be fair and, moreover, the guidelines had not been issued at the time of the appellants' trial in 1990. I consider that the decision of the Court of Appeal in R v Faryab was largely influenced by the consideration that the Crown accepted that if prosecution counsel had known at the time of the trial of the Attorney General's guidelines, the answers of the appellant would probably not have been adduced in evidence. If the decision goes beyond that I would wish to reserve my opinion as to its correctness. I also reject the submission that the Court of Appeal in this case should have stopped the Crown from relying on the answers or should have required the Crown to acknowledge that the use of the answers in evidence at the trial was unfair. Under section 2(1)(a) of the Criminal Appeal Act 1968 the Court are only empowered to allow an appeal if they think that the conviction is unsafe, and it is for the Court of Appeal to decide this, not the prosecution: see per Lloyd LJ in R v McIlkenny [1991] 93 Cr App R 287, 314. If the Court do not think that the verdict is unsafe, section 2(1)(b) requires them to dismiss the appeal.

    67. Therefore I am of opinion that the appeals must fail on the ground that the intention of Parliament stated in section 434(5) prevails over whatever obligations may arise from the Convention and the judgments of the European Court.

    68. It is therefore unnecessary to express a concluded opinion on Mr Emmerson's first main proposition that, if the Court of Appeal were not compelled by section 434(5) to hold otherwise, they were obliged to follow the judgments of the European Court in the cases of Mr Saunders and the other appellants and to hold that the admission of their answers violated their rights to a fair trial.

    69. On this issue the House had the benefit of interesting submissions from Mr Emmerson and the Attorney General on the effect of international treaties on domestic law. This House has stated that international treaties do not create rights enforceable in domestic law: see J H Rayner (Mincing Lane) Ltd v Department of Trade and Industry [1990] 2 AC 418, 476F - 477A, 483C, 500C-D. But the present case relates to the fairness of the appellants' trial and is not one where the appellants claim to enforce a right which is given to them only by the Convention and is not recognised by English domestic law. As Lord Woolf CJ stated in R v Togher [2001] 1 Cr App R 457, 467, para 30: "The requirement of fairness in the criminal process has always been a common law tenet of the greatest importance." Therefore in a case such as the present one concerned with the issue of fairness, I consider that the principle stated in Rayner's case does not mean that an English court should not regard a judgment of the European Court on that issue as providing clear guidance and should not consider it right to follow the judgment unless (as I would hold in the present case) it is required by statute to reach a different conclusion. As Lord Goff of Chieveley stated in Attorney General v Guardian Newspapers Ltd (No. 2) [1990] 1 AC 109, 283G:

    "I conceive it to be my duty, when I am free to do so, to interpret the law in accordance with the obligations of the Crown under [the European Convention on Human Rights]."

    70. In his submissions Mr Emmerson laid stress on the point that these appellants were not merely relying on a principle established by a judgment of the European Court, they were relying on the fact that judgments had been pronounced by the European Court in their favour in cases in which they were the applicants. Accordingly, he submitted that the United Kingdom (including its courts) came under an express obligation under Articles 41 and 46 of the Convention to give effect to the judgments by quashing the convictions.

    71. There are many judgments of the European Court which recognise in relation to Article 41 that, notwithstanding a decision by the Court that there has been a breach of the Convention, the national law of the respondent state may not permit the quashing of a conviction which is valid under national law and that the Court has no power to quash it: see Belilos v Switzerland (1988) 10 EHRR 466, 491 para 76, Hauschildt v Denmark (1989) 12 EHRR 266, 281, para 54, Brozicek v Italy (1989) 12 EHRR 371, Findlay v United Kingdom (1997) 24 EHRR 221, 247, para 88. In Papamichalopoulous v Greece (1995) 21 EHRR 439, 451, the European Court stated in paragraph 34:

    "The Contracting States that are parties to a case are in principle free to choose the means whereby they will comply with a judgment in which the Court has found a breach. This discretion as to the manner of execution of a judgment reflects the freedom of choice attaching to the primary obligation of the Contracting States under the Convention to secure the rights and freedoms guaranteed (Article 1). If the nature of the breach allows of restitutio in integrum, it is for the respondent State to effect it, the Court having neither the power nor the practical possibility of doing so itself. If, on the other hand, national law does not allow—or allows only partial—reparation to be made for the consequences of the breach, Article 50 empowers the Court to afford the injured party such satisfaction as appears to it to be appropriate."

    72. Mr Emmerson submitted that if Article 41 did not impose an obligation on the United Kingdom to quash the appellants' convictions, that obligation arose under Article 46 and Mr Emmerson cited a number of resolutions of the Council of Ministers which stress the importance of Member States giving effect to the judgments of the European Court.

    73. In his application to the European Court Mr Saunders claimed damages for pecuniary loss in excess of £3½ million. Referring to this claim the Court stated in paragraph 83 of its judgment:

    "At the hearing before the Court, however, the applicant accepted that 'true compensation' would be a finding in his favour by the Court and the resulting vindication of his good name."

The Court dismissed the claim for pecuniary loss and stated at paragraph 86 of its judgment:

    "The Court observes that the finding of a breach in the present case concerned the criminal proceedings against the applicant and not the proceedings before the Inspectors about which no complaint was made. Moreover, it cannot speculate as to the question whether the outcome of the trial would have been any different had use not been made of the transcripts by the prosecution and, like the Commission, underlines that the finding of a breach of the Convention is not to be taken to carry any implication as regards that question.

    It therefore considers that no causal connection has been established between the losses claimed by the applicant and the Court's finding of a violation."

Mr Saunders also claimed non-pecuniary damages of £1 million to compensate him for the denial of his right to a fair trial and the resulting anxiety, anguish and imprisonment. The Court dismissed this claim and stated at paragraph 89 of its judgment:

    "The Court considers that, in the circumstances of the case, the finding of a violation constitutes sufficient just satisfaction in respect of any non-pecuniary damage sustained."

Mr Saunders also claimed a sum for costs and expenses, and the Court awarded him £75,000 in respect of this claim.

    74. In the applications brought by the other appellants the European Court declined to award them pecuniary and non-pecuniary damages for the same reasons as those given in the case of Mr Saunders and the Court reserved the issue of the appellants' claims for costs and expenses.

    75. In the course of his submissions the Attorney General observed that the United Kingdom had paid to Mr Saunders the costs and expenses awarded to him by the European Court and he further submitted that in pursuance of its international obligations under the Convention the United Kingdom had sought to comply with the two judgments of the European Court by amending its domestic law by the enactment of section 59 of, and Schedule 3 to, the 1999 Act which provided that answers given under compulsion should not (save in certain limited exceptions) be used in evidence against the person giving the answers.

    76. The Attorney General recognised that at some future time the appellants' cases may be considered by the Council of Ministers under Article 46, and therefore I think that it would not be appropriate for this House to express an opinion on the effect of Article 46 in these cases.

    77. I would add that in my opinion the appellants cannot advance an argument based on the requirements of international comity in reliance on the judgment of Hobhouse J in Dallal v Bank Mellat [1986] QB 441 because the issue in that case was not affected by an Act of Parliament.

    78. For the reasons which I have stated I would dismiss these appeals and would answer the certified question in the affirmative.

LORD HOBHOUSE OF WOODBOROUGH

My Lords,

    79. I am in entire agreement with the opinion of my noble and learned friend Lord Hoffmann.

    80. The jurisdiction of the Criminal Division of the Court of Appeal is to allow appeals against conviction only when they consider that the conviction is unsafe. In deciding whether the conviction is unsafe, the Court is under an obligation to consider whether the trial was conducted in accordance with the law and whether it was unfair. If inadmissible evidence was admitted and the admission of such evidence made the conviction unsafe, the appeal should be allowed. But, if the evidence is admissible, the evidence should be allowed to go before the jury unless its admission would create a significant unfairness in the proceedings such that the judge should exercise his discretion under s.78 of the Police and Criminal Evidence Act 1984 to exclude it or, if confession evidence, unless it should be excluded under s.76.

 
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