AS TO THE ADMISSIBILITY OF
by Lorelie STAINES
against the United Kingdom
The European Court of Human Rights (Third Section), sitting on 16 May 2000 as a Chamber composed of
Mr J.-P. Costa, President,
Mr W. Fuhrmann,
Mr L. Loucaides,
Sir Nicolas Bratza,
Mrs H.S. Greve,
Mr K. Traja,
Mr M. Ugrekhelidze, judges,
and Mrs S. Dollé, Section Registrar,
Having regard to the above application introduced with the European Commission of Human Rights on 5 April 1998 and registered on 9 June 1998,
Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,
Having regard to the Court’s partial decision of 8 June 1999,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
The applicant is a British national, born in 1954 and living in Walton-on-Thames, England. She is a chartered accountant by profession.
She is represented before the Court by Mr David Gibson-Lee, a lawyer practising in London.
A. Particular circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
In January 1994 the applicant and a co-accused, Mr M., were tried before a jury at the Inner London Crown Court on a number of charges including counselling or procuring another to deal in securities while being a prohibited person, contrary to section 1(7) of the Company Securities (Insider Dealing) Act 1985 (“the 1985 Act”).
According to the prosecution, a certain Mr P., a chartered accountant, knew through his employment that one of his firm’s clients was considering taking over a company called Aaronsons. He attended a meeting on 16 July 1990 at which the financial positions of the bidding and target companies were reviewed and, as a result, became privy to the offer price per share of the target company and the timetable for acquisition. In consequence of this knowledge Mr P. was deemed a “connected person” in possession of “unpublished price –sensitive information” within the meaning of sections 9 and 10 of the 1985 Act.
On 15 November 1996 the Secretary of State at the Department of Trade and Industry (the “DTI”) appointed Inspectors under section 177 of the Financial Services Act 1986 to investigate share dealings in Aaronsons. The applicant’s father was interviewed on an informal basis by DTI inspectors on 18 December 1990. Although not summoned to the interview the applicant decided to accompany him.
On the occasion of the interview the applicant provided the DTI inspectors with a copy of a written statement which she had prepared for the benefit of her solicitors setting out her recollection of the events which occurred on the evening of 18 July 1990. In that statement, the applicant recalled that on the evening in question she had been to a restaurant with accountancy colleagues where there had been a general discussion about what would make a good buy or investment. Price-earnings ratios and share prices had been mentioned as well as the fact that the building industry was a good sector. She wished to pass on advice to her father. She had previously passed on information based on rumours, none of which had been of any value. She studied the newspapers and looked at relevant companies and made some telephone enquiries. Aaronsons emerged as an appropriate company for investment. She spoke to her father who agreed to make an investment on his own and her behalf with an arrangement for payment at a later stage. At no time did she think she was doing anything remotely illegal and did not know whether any person present at the restaurant was or had been connected with Aaronsons.
The applicant confirmed the content of her written statement before the DTI inspectors at the informal interview on 18 December 1990. Like her father, the applicant was not under oath at the time and the inspectors emphasised to her that she was not under oath and that she was not compelled to answer questions at that stage. She stated before the inspectors that had Mr P., who had been present in the restaurant, said anything definite about Aaronsons she would not have acted on it; similarly, if she had known that he was connected with that company.
When interviewed by the inspectors Mr M., who purchased 5,000 shares in Aaronsons through a third party on 25 July 1990, stated that he had so much to drink in the course of the evening that he could not recall what had been said at the applicant’s house. One or two days later the applicant’s husband had shown him his wife’s research which referred to the names of companies including that of Aaronsons. He then began to observe the company’s share price which had started to move. He stated that the applicant’s research had jogged his memory about what had been discussed at her house. In a letter to the Inspectors the co-accused subsequently stated that he believed that Mr P. had disclosed financial data on the evening in question but that he could not remember the exact information. In the letter he mentioned that Mr P. spoke of an interesting range of ratios and referred to the share price of what he assumed was the target company.
The applicant subsequently attended a formal interview with the inspectors on 7 February 1991 at which she gave evidence under oath. At that interview the applicant confirmed that the written statement which she gave to the inspectors at the informal interview on 18 December 1990 represented a true and complete recollection of the events. The applicant further confirmed that the written statement was a voluntary statement which has been prepared for the benefit of her legal advisers.
Following the completion of the investigation under section 177 of the Financial Services Act 1986, a criminal investigation was opened. On 21 February 1992 the applicant agreed to give a tape-recorded interview under caution to an investigating officer from the DTI. The applicant repeated the essential elements contained in her written and oral statements to the inspectors.
At the applicant’s trial Mr P. testified that he had a meal with the applicant and Mr M. at a restaurant on 18 July 1990. Following the meal the party returned to the applicant’s house where Mr M. was staying. Mr P. mentioned at the house that he was working on a bid which one of his firm’s clients was proposing to make for the publicly quoted capital of the target company. The applicant and Mr M. were both keen to find out the name of the company, but Mr P. was reluctant to tell them. A guessing game ensued during which Mr P. vouchsafed some details of the company including the fact that the take-over was likely to be in two weeks’ time and that the company made kitchen products, was listed in the industrial sector of the share listings and was involved in the construction industry. Mr P. also mentioned the price earnings ratio and the share price of the company and, as the discussion progressed, the offer price. A newspaper with company listings was produced and this was used as a basis for questions in regard to various companies. At one stage the applicant and Mr M. tested Mr P. with the name of Aaronsons but Mr P. claimed that he did not know the name of the company. Mr P. testified at the trial that he became uncomfortable with the line of questioning but stated at the trial that he had given insufficient information to enable the company to be identified.
Mr M. substantially confirmed at the trial the account given by Mr P.
The applicant’s husband gave evidence at the trial that on 19 July 1990 the applicant researched the possibility of finding an investment for her father. The applicant’s husband discussed the matter with Mr M. and told him about a list of names which the applicant had left on the coffee-table. At the trial the applicant’s husband stated that he may have mentioned to the applicant and Mr M. that that he had a preference for Aaronsons but that he had not connected this company with Mr P. The applicant’s father testified at the trial that in July 1990 he had bought 12,000 shares in that company and had subsequently sold them at a profit and divided the proceeds among his children including the applicant. He stated that he had discussed with the applicant the shares in which he should invest and that she knew he was looking at the building industry. She mentioned to him that she had spoken to others about price-earnings ratios and after some research she had come up with the name of Aaronsons. According to the applicant’s father, she had not advised him to invest but to consider Aaronsons along with other companies.
The defence case was that although some information may have been gleaned from Mr P., it was not complete and was quite inadequate to identify Aaronsons as the target company. On that account the applicant and Mr M. submitted that the information was not “unpublished price-sensitive information”. The applicant relied at the trial on the evidence she gave to the inspectors. She did not testify. Mr M. on the other hand did give evidence which was broadly in line with what he had stated to the inspectors. He also mentioned at the trial that on the day after the party at the applicant’s house the applicant had called him and told him she was doing some research. When she mentioned Aaronsons to him, he said “that was it”, not because of anything indicated by Mr P. but because of the connection with a reference earlier in the year. He did not explain this connection to the applicant. By the time of giving evidence he realised that the connection was false and was based on a mistake. In his evidence to the jury, Mr M. suggested that the identification of Aaronsons was in large measure the result of chance.
In his summing up, the trial judge reminded the jury that they could not draw an adverse inference from the fact that the applicant did not testify at the trial and that they did not have the benefit of seeing her give evidence under oath before the inspectors. As to the latter evidence, the judge also stated that the applicant was a person of previously good character and that it was easier to believe someone of good character than someone who has a list of convictions for dishonesty. Finally the jury were warned that in considering the weight to be given to Mr P.’s evidence against the applicant, they should bear in mind that he could have been motivated by a desire for revenge since it was the applicant who had named him to the inspectors.
On 17 January 1994 the applicant and Mr M. were found guilty as charged and each sentenced to a fine.
Leave to appeal was granted by the Single Judge on 16 June 1994.
The Court of Appeal (Criminal Division) dismissed the appeal on 24 April 1997 having considered, inter alia, the applicant’s arguments based on the reasoning of the European Court of Human Rights in its Saunders v. the United Kingdom judgment of 17 December 1996 (Reports of Judgments and Decisions 1996-VI).
The Lord Chief Justice, Lord Bingham discussed the applicant’s contentions on this point in the following terms:
“The submission made is that the admission into evidence in this case of answers obtained from the [applicant] by inspectors using coercive powers of interrogation affected the fairness of the proceedings so adversely that this court should rule that such answers should have been excluded. No such submission was made to the trial judge, since the decision in Saunders v. the United Kingdom had not been given. Now, however, in the light of that decision of the European Court of Human Rights, it is argued that we should rule that the evidence should have been excluded.
Mr Saunders, in his application to Strasbourg, complained that he had been denied a fair trial of a criminal charge against him in breach of Article 6(1) of the European Convention on Human Rights. That complaint was upheld by a majority of the court. The basis of the complaint was that inspectors appointed by the Department of Trade and Industry had exercised compulsory powers to question him; that the answers he had given had been relied on at his criminal trial in support of the case against him; that he had thus been denied the exercise of his right not to incriminate himself; and that freedom to exercise such right is a necessary feature of a fair criminal trial.
The [applicant] relies, by analogy, on that reasoning. The powers in question are substantially the same. The answers obtained by the inspectors formed part of the prosecution case and therefore it is submitted that there was a violation of the Convention in this case also.
The Crown accept in their skeleton argument that were an application to be made to the Convention institutions, the use made of the answers obtained from the [applicant] would be likely to constitute a violation of Article 6 of the Convention. It is also accepted for the purpose of legal argument that were the Convention institutions to consider the matter, they might conclude, following the Saunders’ judgment, that the facts of (a) compulsion to answer, and (b) the use of the compelled answers by the prosecution in leading evidence, in themselves lead to the conclusion that the criminal proceedings were not fair, in violation of Article 6, paragraph 1, of the Convention. …
The difficulty, as it seems to us, which the applicants face is to show that the court should exercise its powers under section 78(1) [of the Police and Criminal Evidence Act 1984] to exclude, because of its adverse effect on the conduct of the proceedings, material which section 177(6) [of the Financial Services Act 1986] has expressly stipulated may be used in evidence against a defendant. … [The applicant’s counsel] suggests that there is in the present circumstances a conflict between section 177(6) of the 1986 Act and section 78(1) of the 1984 Act and suggests that this conflict should be resolved by reference to the provisions of the European Convention. In our judgment, however, there is no conflict between the two provisions. Section 176(6) shows that Parliament did not consider the use of this evidence to be unfair … it is almost as if there were a statutory presumption to that effect.”
The Lord Chief Justice added:
“... the present position is very unsatisfactory. It would appear that the [applicant has] or certainly may have grounds for complaining in Strasbourg and, if the penalty is enforced and [she] incurs costs in seeking relief, [she] may have claims to compensation against Her Majesty’s Government. That is not, however, something which the courts can remedy. ... The United Kingdom is subject to a Treaty obligation to give effect to the European Convention on Human Rights as interpreted by the Court of Human Rights, but that again is not something which this court can enforce.”
On 10 November 1997 the House of Lords refused the applicant leave to appeal.
After the criminal trial, the applicant faced professional disciplinary proceedings in the course of which she relied, in mitigation, on the fact that she had approached the inspectors voluntarily. She was severely reprimanded for discrediting herself and the profession of chartered accountants and fined GBP 750, plus GBP 2,000 in costs.
B. Relevant domestic law
The powers in issue in this case at the relevant time were largely contained in the Financial Services Act 1986 at section 177. Subsection (1) of that section provided:
“If it appears to the Secretary of State that there are circumstances suggesting that there may have been a contravention of section 1, 2, 4 or 5 of the Company Securities (Insider Dealing) Act 1985, he may appoint one or more competent inspectors to carry out such investigations as are requisite to establish whether or not any such contravention has occurred and to report the results of their investigations to him.”
Subsection (3) read:
“If the inspectors consider that any person is or may be able to give information concerning any such contravention they may require that person
(a) to produce to them any documents in his possession or under his control relating to the company in relation to whose securities the contravention is suspected to have occurred or to its securities;
(b) to attend before them; and
(c) otherwise to give them all assistance in connection with the investigation which he is reasonably able to give;
and it shall be the duty of that person to comply with that requirement.”
Subsection (4) empowers an inspector to examine on oath any person whom he considers is or may be able to give information concerning any such contravention, and to administer an oath accordingly.
Subsection (6) provided:
“A statement made by a person in compliance with a requirement imposed by virtue of this section may be used in evidence against him.”
Subsection (7) stated:
“A person shall not under this section be required to disclose any information or produce any document which he would be entitled to refuse or disclose or produce on grounds of legal professional privilege in proceedings in the High Court ...”
Section 178 provided:
“(1) If any person -
(a) refuses to comply with any request under subsection (3) of section 177 above; or
(b) refuses to answer any question put to him by inspectors appointed under that section with respect to any matter relevant for establishing whether or not any suspected contravention has occurred,
the inspectors may certify that fact in writing to the court and the court may inquire into the case.
(2) If, after hearing any witness who may be produced against or on behalf of the alleged offender and any statement which may be offered in defence, the court is satisfied that he did without reasonable excuse refuse to comply with such a request or answer any such question, the court may -
(a) punish him in like manner as if he had been guilty of contempt of court ... ”
Section 78(1) of the Police and Criminal Evidence Act 1984, provides:
“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.”
The applicant complains, with reference to the Court’s judgment in the case of Saunders v. the United Kingdom (17 December 1996, Reports of Judgments and Decisions 1996-VI), that her right to a fair trial has been breached on account of the fact the prosecution made use of the answers and statements which she was compelled under law to give to the DTI inspectors. The applicant invokes Article 6 §§ 1 and 2 of the Convention.
1. The applicant maintains that she did not receive a fair hearing since her right not to incriminate herself had been undermined through the use made by the prosecution of the statements she gave to the DTI inspectors under statutory compulsion. The applicant invokes Article 6 §§ 1 and 2 of the Convention, which provide respectively and to the extent relevant:
“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing (...).
2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”
The Government dispute the applicant’s assertion. They maintain, with reference to the Court’s above-mentioned Saunders v. the United Kingdom judgment, that an accused’s right not to incriminate himself is not infringed if evidence is adduced against the accused which has been obtained from a third party under compulsion. Furthermore, there can be no infringement of that right if the accused chooses voluntarily to give evidence. Finally, in line with the Court’s reasoning in its Saunders judgment, the Government emphasise that particular regard must be had to the circumstances of the case as a whole in order to determine whether or not the use made by the prosecution of evidence obtained from an accused under compulsion infringes the right at issue.
Having regard to these considerations, the Government stress that the applicant volunteered evidence, firstly, to the inspectors and, subsequently, to the investigating officer responsible for the criminal investigation. The fact that the applicant approached the inspectors and was prepared to supply them with a written statement before being interviewed, a statement which she herself acknowledged to be voluntary, indicated that no element of coercion or oppression was applied against her during interview. The Government also advert to the fact that the applicant chose to waive legal professional privilege, thereby voluntarily providing the inspectors with more information than they would have been entitled to obtain from her in exercise of their powers under the Financial Services Act 1986. According to the Government, it was also significant that the applicant relied on the fact that she had approached the inspectors voluntarily when she gave evidence in the disciplinary proceedings before her professional body.
Against this background, the Government maintain that it is not open to the applicant to assert that the evidence adduced at her trial had been obtained by coercion or oppression in defiance of her will.
The applicant states in reply that sooner or later she would have been compelled by the inspectors to answer questions. It was for that reason that she gave evidence to the inspectors in circumstances which the Government wrongly describe as “voluntary”. Admittedly she gave evidence when cautioned by the investigating officer. However, it must not be overlooked that she had already been questioned under compulsion. Whether or not she had a free choice to speak or maintain silence before the investigating officer must be viewed in that context.
The Government refer to the use made by the prosecution at the applicant’s trial of evidence given by her under compulsion. They assert that the applicant could not claim to have been disadvantaged since the prosecution never contended that there was any inconsistency between her voluntary statements and those obtained under compulsion. Moreover, the prosecution did not have to rely on her evidence to secure her conviction having regard in particular to the incriminating statements of Mr P. and of her father.
The applicant reiterates her belief that she had no free choice when she first met with the inspectors. The fact that she decided to answer the inspectors’ questions before they could compel them from her in exercise of their statutory powers could not render her trial fair. Without those answers the prosecution would not have been able to make out a case against her. The applicant further maintains that although she had pleaded in mitigation before her professional body that she had voluntarily approached the inspectors, her plea must necessarily be considered against the background of compulsion to do so.
The Court observes that both parties pray-in-aid the principles laid down in its Saunders v. the United Kingdom judgment in support of their respective positions.
The Court recalls that in that judgment it stated 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, presupposes 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 (p. 2064, § 68).
Furthermore, whether the use made by the prosecution of statements made by an accused under legal compulsion amounts to an unjustifiable infringement of the right must be examined by the Court in the light of all the circumstances of the case (p. 2065, § 69).
The Court observes that in the Saunders case it found that the applicant was obliged under pain of sanction to give evidence to inspectors using compulsory powers under the Companies Act 1985 and that the prosecution made extensive use of the statements which he gave in the course of nine interviews in a manner which sought to incriminate him. On that account the Court concluded that there had been an infringement of the right not to incriminate oneself, in breach of Article 6 § 1 of the Convention.
It is not disputed that in the instant case the applicant was obliged under sections 177 (3) and 178 (1) of the then Financial Services Act 1986 to attend before the inspectors when summoned on 7 February 1991 and to answer questions put to her under oath. However it is to be observed that, by that stage, the applicant had already provided unsolicited written and oral statements to the inspectors at the time of the latter’s interview with her father. It would not appear from the transcripts of her own formal interview with the inspectors that the applicant departed from her original account of what happened on the evening of 16 July 1990. The applicant was consistent in her assertion that her decision to select Aaronsons was not prompted by any information supplied by anyone present at her home at the material time.
The Court must also have regard to the fact that the applicant, unlike Mr Saunders, did not object to the prosecution’s reliance on the statements which she gave under oath to the inspectors on 7 February 1991. On the contrary, the applicant herself relied on these statements to establish in the eyes of the jury an unwavering line of defence to the charges brought against her. However, the fact that the statements given to the inspectors were exculpatory does not of itself lead to the conclusion that there was no breach of the applicant’s right not to incriminate herself. The Court recalls in this connection that 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 facts - 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 (see the above-mentioned Saunders judgment, p. 2065, § 71).
With reference to the facts of the present case, it would appear that the prosecution had regard to the various statements which the applicant made in the course of the investigation: the written statement she prepared for her legal advisers prior to her formal interview before the inspectors under oath; her oral statement given to the inspectors at the time of the informal interview conducted jointly with her father; the oral statement which she provided under oath to the inspectors and the statement which she gave under caution to the investigating officer from the DTI. The judge in his summing up drew the jury’s attention to all the evidence which the applicant had provided on these occasions. The prosecution did not seek to impugn the applicant’s credibility by comparing and contrasting what she said under oath before the inspectors with the content of her other statements. It would appear that the prosecution sought to substantiate the charges against the applicant by pointing to the inconsistencies between the evidence given by, in particular, her father, Mr P. and her co-accused at the trial with her own voluntary and steadfast account of what led her to advise her father to purchase shares in Aaronsons.
Having regard to these considerations, the Court is not persuaded that the prosecution relied on the statements which the applicant gave to the inspectors under oath in a manner calculated to incriminate her. On the contrary, it would appear that those statements were treated as one element of an overall defence case which had to be discredited and which the applicant had first volunteered in written and oral form to the inspectors on 18 December 1990. The task facing the prosecution was to expose the weakness of that defence in the light of the testimony provided by the other witnesses. In the Court’s opinion it did so without any unjustified recourse to evidence which can be said to have been obtained in defiance of the applicant’s will or was at variance with her right to be presumed innocent.
For the above reasons, the Court concludes that the applicant’s complaints are manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and thus inadmissible under Article 35 § 4.
For these reasons, the Court, unanimously,
DECLARES INADMISSIBLE THE REMAINDER OF THE APPLICATION.
S. Dollé J-P. Costa
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