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

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    81. The decision of the European Court of Human Rights is that the provision in s.434 of the Companies Act 1985 which makes a person's answers given to the inspectors admissible in evidence against him contravenes Article 6 of the Convention. This created a conflict between the Convention and the United Kingdom statute. The obligation of a Court of the United Kingdom is to apply the law of the United Kingdom. The Convention has now, substantially but not completely, been made part of the law of the United Kingdom. But the incorporation has not been retrospective and has preserved parliamentary supremacy. Therefore the position in English law remains as stated by the Court of Appeal in R v Staines and Morrisey [1997] 2 Cr App R 426, at 442-3.

    82. Specifically in relation to the admission of the evidence in question, the fairness of the trials of the present appellants and the safety of their convictions was carefully considered by the Court of Appeal both in 1995, [1996] 1 Cr App R 463, 478 and 484, and again last year in the decision under appeal. On each occasion the Court, having recognised that the trial judge was (as were the Court of Appeal) bound by s.434, and, having carefully considered all the circumstances as required by s.78, concluded that there had been no actual unfairness in the appellants' trials and no lack of safety in the relevant convictions.

    83. I accordingly agree that the appeals should be dismissed.

LORD MILLETT

    My Lords,

    84. On 27 August 1990 following a six month trial before a judge and jury at the Central Criminal Court the four Appellants were convicted of serious criminal offences involving dishonesty. The offences were committed during 1986 in the course of an illegal share support operation undertaken to assist Guinness plc in acquiring Distillers Company plc. Save as to one count against Mr Saunders, in respect of which his conviction was quashed, appeals against conviction by three of the Appellants were dismissed by the Court of Appeal in 1991. The case in respect of all four Appellants was later referred back to the Court of Appeal by the Secretary of State. Save as to one count against Mr. Lyons (who had not taken part in the earlier appeal) in respect of which his conviction was quashed the appeals were again dismissed in 1995.

    85. The convictions were obtained in part by the use by the prosecution of transcripts of the answers given by the Appellants to Inspectors appointed under the Companies Act 1985 ("the Companies Act") to investigate the affairs of Guinness plc. Failure on the part of any person to attend before the Inspectors when required to do so and to give them all the assistance that he is reasonably able to give is punishable as a contempt of court: see sections 434 and 436 of the Companies Act.

    86. Section 434(5) of the Companies Act as it then stood provided:

    "(5) An answer given by a person to a question put to him in exercise of powers conferred by this section … may be used in evidence against him."

Section 78(1) of the Police and Criminal Evidence Act 1984 provided:

    "(1) 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."

    87. The two sections were not inconsistent. Section 78 gave the court a general power to exclude admissible evidence where its admission was considered to be unfair to the accused. Section 434(5) dealt with a particular situation where the admission of such evidence might be so considered. It made the answers given by the Appellants to the Inspectors admissible in evidence against them despite the fact that they had been obtained under compulsion and were or might be self-incriminatory. It precluded any challenge to the admission of such evidence on this ground. To this extent, but to this extent only, it limited the powers of the court under section 78 to exclude admissible evidence. Where there was some additional ground which rendered the admission of such evidence unfair to the accused, it could be excluded under Section 78. Thus transcripts of answers given by Mr Saunders to the Inspectors at interviews held after he had been charged were excluded by the trial judge. Where the sole ground of objection was that the evidence had been obtained under compulsion in the course of an investigation under the Companies Act, however, the Court was obliged to give effect to Section 434(5): the prosecution was entitled to adduce the evidence if it chose and the Court was bound to admit it.

    88. In 1996 the European Court of Human Rights ("ECtHR") held that the use made at the trial of the transcripts of Mr Saunders' answers to the Inspectors infringed the rule against self-incrimination and thereby constituted a violation of his rights under Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention"). When considering what remedy to award the Court stated that it could not speculate whether the outcome of the trial would have been any different had use not been made of the transcripts by the prosecution. Accordingly, no causal connection had been established between the violation and the pecuniary damage which Mr Saunders claimed. It also ruled that in the circumstances of the case the finding of a violation constituted sufficient just satisfaction in respect of any non-pecuniary damage which he had sustained.

    89. In 2000 the ECtHR held on the same ground that there had been a similar violation of the rights of the other three Appellants. It made the same observations as to its inability to speculate as to the outcome of a hypothetical trial and as to the sufficiency of the finding of a violation as just satisfaction in respect of any non-pecuniary damage that it had made in the case of Mr Saunders.

    90. Under Article 46 of the Convention it is incumbent upon the United Kingdom to abide by judgments of the ECtHR. This requires the United Kingdom to take measures to prevent recurrence of any violations of the Convention which the ECtHR has identified and to make reparation to the victims if it is proper to do so. Full reparation involves restitutio in integrum, which has been variously explained either as restoring the complainant to the position he was in immediately before the violation occurred; or as restoring him to the position he would have been in if the violation had not occurred. Article 41 of the Convention enables the ECtHR to award just satisfaction in a case where the internal law of the state concerned allows only partial reparation to be made. This recognises that the state's internal law may preclude it from making full reparation, and that its obligation to abide by the judgment of the ECtHR does not require it to change its internal law retrospectively to enable it to do so.

    91. Following the judgment of the ECtHR in the Saunders case, the United Kingdom took immediate measures to procure cessation of the infringements and prevent recurrence. The Attorney-General, who as a law officer of the Crown is answerable to Parliament for the exercise of discretionary powers in relation to the conduct of criminal prosecutions in the United Kingdom, issued non-statutory guidance to prosecutors directing that in future they should not make use of evidence obtained under compulsory powers in the course of criminal proceedings in the absence of special circumstances which would justify them in doing so. Statutory effect was given to these directions by Section 59 of and Schedule 3 to the Youth Justice and Criminal Evidence Act 1999. This made amendments to a number of existing statutory provisions which had formerly enabled evidence obtained by compulsory powers to be used in evidence. It left Section 434(5) of the Companies Act standing without amendment, but added a new subsection (5A) which severely limited the circumstances in which the evidence could be adduced by the prosecution in future.

    92. The question which then arose was whether the Appellants' convictions ought to be quashed in view of the fact that they had been obtained in part by the admission of evidence in violation of Article 6 of the Convention. Following the judgment of the ECtHR on 19 September 2000 and the coming into force of the Human Rights Act 1998 ("the HRA") on 2 October 2000 the Appellants' cases were again referred to the Court of Appeal. Serious criminal trials in England are tried by jury, and the Court of Appeal could not retry the case itself and determine guilt or innocence on the transcripts of the evidence given at trial. Its powers are limited to quashing the conviction and, if appropriate, re-opening the proceedings by ordering a retrial before a fresh jury. Thus the Court was being called on to consider the question which the Convention leaves to the national courts, that is to say the extent if any to which, in conformity with our domestic law, it could award non-monetary reparation or restitutio in integrum to the Appellants.

    93. The Court examined the evidence against each of the Appellants. It concluded that the impugned evidence constituted a significant part of the evidence against them, and that it was impossible to say that the jury would still have convicted in the absence of such evidence. On the other hand there was a substantial body of other evidence against each of the Appellants, and it was impossible to say that the jury would necessarily have acquitted without the impugned evidence. The Court was thus in the same position as the ECtHR; it could not speculate on what the outcome of the trial would have been in the absence of the impugned evidence.

    94. The Court also concluded, at an early stage of the hearing, that it would not be appropriate to order a retrial. A second jury trial more than 10 years after the original trial and more than 14 years after the events with which the trial would be concerned was out of the question, particularly in the light of the Appellants' age and state of health. Restitutio in integrum was impossible. It was not practicable to restore the Appellants to the position they were in before the violations occurred, when they were accused persons facing serious criminal charges. Nor could they be put in the position they would have been in had the violations not taken place, since this could not be known without a retrial.

    95. Under Section 2(1) of the Criminal Appeal Act 1968 ("the CAA") the Court of Appeal is obliged to quash a conviction if it thinks that "the conviction is unsafe"; but otherwise it must allow the conviction to stand. The question is not whether the accused is guilty, but whether the conviction is open to possible doubt. The question whether there should be a retrial is treated as distinct from the prior question whether the conviction is unsafe. If the conviction is unsafe the Court is obliged to quash it, even though it is no longer possible to order a retrial so that the guilt or innocence of the accused may never be determined.

    96. The question for the Court under Section 2(1) of the CAA is whether the convictions "are unsafe", not "were unsafe"; but this question has to be determined by reference to what happened at the trial. This was not a case where new evidence had become available since the trial. In such a case it is open to the Court to find that, in the light of the new evidence, a conviction which appeared to be safe at the time is now shown to be unsafe. Nor was it a case where the convictions were challenged on the ground that the conduct of the trial was not consistent with general notions of fairness, which change over time. In such a case, it is open to the Court to find that a trial which would have been considered to be fair by the more robust standards of a past age was conducted in a manner which is simply not acceptable today.

    97. No complaint is made in the present case of the general fairness of the Appellants' original trial or the relevance and import of the impugned evidence. The trial was conducted fairly and in accordance with the substantive rules of evidence and procedure which were current at the time. The sole ground on which the convictions are said to be unsafe is that they were obtained by the use of cogent and relevant evidence the admission of which was expressly authorised by Parliament but which infringed Article 6 of the Convention.

    98. Section 434(5) of the Companies Act as it stood at the time of the trial was clearly inconsistent with Article 6. It precluded any challenge to the admission of the evidence in question in the absence of special circumstances justifying its exclusion under Section 78. Article 6 by contrast precluded the admission of such evidence in the absence of special circumstances justifying its admission. That is why Parliament amended Section 434 by adding subsection (5A). But the amendment was not retrospective. Moreover, the new subsection was directed to the conduct of the trial, not to the hearing of an appeal against conviction. It was evidently the will of Parliament that the new arrangements should apply to future trials only, and that past convictions obtained under the former law should not be disturbed.

    99. By the time the appeal came before the Court of Appeal the HRA was in force. Section 6(1) of the HRA makes it unlawful for a public authority (which includes both the prosecution and the Court itself) to act in a way which is incompatible with a Convention right. But this House has twice held that the HRA is not retrospective, and the Appellants rightly did not invoke it. Indeed, they went so far as to submit that your Lordships should deal with their appeals as if it had not been passed. That is not the correct approach. The present case is a transitional one. It raises the question whether a conviction obtained by evidence which infringed Article 6 of the Convention but at a time before the HRA was in force can be treated as unsafe if an appeal is heard after it has been brought into force. The fact that the HRA is not retrospective is not without significance. As in the case of the amendments to the Companies Act, it demonstrates Parliament's continuing intention to leave past convictions undisturbed.

    100. As a matter of our own domestic law, therefore, the Court of Appeal could not properly regard the convictions as unsafe by reason only of the admission of evidence which was expressly made admissible by statute in force at the time of the trial and in the face of Parliament's clear intention, twice expressed, to leave such convictions undisturbed.

    101. The Appellants sought to avoid this conclusion by relying, not on the breaches of Article 6 alone, but on the fact that they have been established by judgments of the ECtHR. Article 46, they say, imposes a duty on the United Kingdom and its courts to abide by judgments of the ECtHR; this requires them not only to acknowledge any breach of the Convention which has been established by any such judgment, as they have done, but to make the fullest reparation to the victims which is available under national law, which they have not. Moreover, national courts should, if free to do so, refrain from acting in a manner which would put the United Kingdom in breach of its international obligations.

    102. This argument involves the following propositions: (i) that the United Kingdom's international obligation to abide by a judgment of the ECtHR is binding on our domestic courts and directly enforceable in those courts by individuals; (ii) that the Court of Appeal was at liberty under our domestic law to quash the convictions; and (iii) that its failure to do so put the United Kingdom in breach of its international obligation to abide by the judgments of the ECtHR.

    103. The argument draws an untenable distinction between those cases where the breach of the Convention right has been established by a judgment of the ECtHR and those cases where it has not, even though the United Kingdom is bound by the Convention and not merely by the judgment. But in any case I am unable to accept any of the propositions which it involves.

    104. In the first place, the obligation placed upon the United Kingdom by Article 46 of the Convention to abide by a judgment of the ECtHR is an international obligation of the United Kingdom. It has not been incorporated into our domestic law so as to be directly enforceable by individuals. An illuminating contrast may be drawn with Section 2(1) of the Civil Jurisdiction and Judgments Act 1982 ("the CJJA"), which provides that the Brussels Convention "shall have the force of law in the United Kingdom." As my noble and learned friend Lord Hoffmann observed during argument, if the primary obligation of the United Kingdom contained in Article 6 of the Convention does not form part of our domestic law enforceable directly by individuals (otherwise than through the mechanism of the HRA), how can the secondary obligation to abide by judgments of the ECtHR do so?

    105. In the second place, the identification of the judicial and other organs of the state with the state itself is a principle of international law. But it has no place in the domestic jurisprudence of the state. The legal relationships of the different branches of government depend on its internal constitutional arrangements. In the case of the United Kingdom, the governing principles are the separation of powers, the supremacy of Parliament, and the independence of the judiciary. Accordingly, while a judgment of the ECtHR is binding on the United Kingdom, it is not directly binding as a matter of our domestic law on the courts. It is for this reason that Section 2 of the HRA provides only that in determining a question which has arisen in connection with a Convention right the court must "take into account" the jurisprudence of the ECtHR. By contrast Section 3(1) of the CJJA requires any question as to the meaning or effect of any provision of the Brussels Convention "to be determined in accordance with any relevant decision" of the European Court of Justice.

    106. In the third place, the Convention itself distinguishes between breach and remedies for breach, and deals with the role of the national courts in providing a remedy. The international obligation of the state to provide reparation is not unqualified. It is incumbent on the state to do so but only so far as its internal law permits. When it comes to reparation, therefore, the state's internal law has primacy; it governs the extent of the reparation which the state is obliged to make. It is noticeable that in those cases where the ECtHR has made a further monetary award there has been no suggestion that the state has been in breach of its Article 46 obligation. It follows that the principle that our domestic courts will not act in a manner which would put the United Kingdom in breach of its international obligations is not engaged.

    107. The Appellants also sought to rely on the decision in Dallal v Bank Mellat [1986] QB 441 and the principle of judicial comity to argue that our national courts should not merely "take account" of decisions of the ECtHR as the HRA prescribes but apply them, at least where the same complainants are involved. Although they eschewed reference to the doctrine of res judicata, they laid considerable stress on the facts that the ECtHR is a court of competent jurisdiction and that the parties are essentially the same. Their difficulty, as its seems to me, is twofold. First, even if the doctrine of res judicata were applicable, the present case is one where the court would be constrained by statute to disapply it. Secondly, an essential element for the application of the doctrine is absent: the issues were not the same. The issue before the ECtHR was whether the admission of the impugned evidence infringed Article 6 of the Convention. It held that it did, and its ruling has not been disputed. The issue in the present appeals is whether the internal law of the United Kingdom permits the convictions to be quashed. For the reasons which I have given, I consider that the Court of Appeal was correct to hold that it does not.

    108. I am also unable to accept the Appellants' submission, essentially forensic, that the prosecution is acting incompatibly with the Convention by relying on the impugned evidence to support the convictions. It has acknowledged throughout that the admission of the evidence in question infringed the Appellants' Convention rights. It does not "rely" in any meaningful sense on the impugned evidence to uphold the convictions. It merely contends, as it is entitled under the Convention to do, that our internal law does not permit the convictions to be quashed by reason only of the admission of the evidence in question.

    109. For these reasons, as well as those given by my noble and learned friends Lord Bingham of Cornhill and Lord Hoffmann, whose speeches I have had the advantage of reading in draft, I would dismiss the appeals.

 
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Prepared 14 November 2002