AS TO THE ADMISSIBILITY OF
Application no. 76574/01
by Brian Roger ALLEN
against the United Kingdom
The European Court of Human Rights (Fourth Section), sitting on 10 September 2002 as a Chamber composed of
Mr M. Pellonpää, President,
Sir Nicolas Bratza,
Mr A. Pastor Ridruejo,
Mrs E. Palm,
Mr R. Maruste,
Mr S. Pavlovschi,
Mr L. Garlicki, judges,
and Mr M. O’Boyle, Section Registrar,
Having regard to the above application lodged on 16 October 2001,
Having deliberated, decides as follows:
The applicant, Mr Brian Roger Allen, is a United Kingdom national, who was born in 1948 and is currently serving a sentence of imprisonment in HM Prison Coldingley, Surrey. He is represented before the Court by Mr Newman and Mr Kessler, lawyers practising in London.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 9 May 1991, the applicant was served by the Inland Revenue with a Notice pursuant to section 20(1) of the Taxes Management Act 1970, which, inter alia, required the applicant to provide a certified statement of his assets and liabilities as at 31 January 1991.
On 13 August 1991, when the applicant had failed to comply, he was summonsed to appear before the General Commissioners. The summons warned him that failure to comply with the notice rendered him liable to a penalty not exceeding 50 pounds sterling (GBP) pursuant to section 98(1) of the 1970 Act. (The penalty had in fact been increased to GBP 300).
On 30 October 1991, the applicant still having failed to comply was presented with a “Hansard Warning.” This involved the reading out to him of the reply of the Chancellor of the Exchequer to a Parliamentary question on 18 October 1991. This outlined the practice of the Inland Revenue in cases of fraud indicating that it might accept a money settlement instead of instituting criminal proceedings and that its decision as to whether to accept a settlement or institute criminal proceedings would take into account whether the taxpayer had inter alia given full facilities for investigation into his affairs.
On or about 3 April 1992, the applicant delivered to the Inland Revenue a schedule of his assets as at 31 January 1991 as required by the notice.
The applicant was later charged with 13 counts of cheating the public revenue of income tax and corporation tax. Count 11 specified:
“STATEMENT OF OFFENCE
Cheating Her Majesty the Queen and the Commissioners of Inland Revenue, contrary to common law.
PARTICULARS OF OFFENCE
[The applicant] on or about 3 April 1992 with intent to defraud... cheated Her Majesty the Queen and the Commissioners of Inland Revenue of public revenue, namely, income tax, by delivering... to an Inspector of Taxes a schedule of assets as at 31 January 1991 in respect of his assets and the assets of his minor children which was false, misleading and deceptive in that it omitted to disclose divers assets which were owned by him. Particulars of the omitted assets are – his beneficial interest in shares issued by off-shore companies, his beneficial interest in properties held in the names of off-shore companies and his beneficial interest in bank accounts held in the United Kingdom and in Jersey in the names of off-shore companies.”
The applicant was convicted of all counts on 19 February 1998. On 20 February 1998, he was sentenced to 13 concurrent terms of seven years’ imprisonment and a confiscation order made in the sum of 3,137,165 pounds sterling (GBP). This sum was calculated as being the lesser of the two sums, namely the amount of benefit from the offences (GBP 4 million) and the applicant’s total realisable assets (GBP 3,137,165).
On 7 July 1999, the Court of Appeal dismissed his appeal against conviction and on 11 October 1999, dismissed his appeal against sentence. In relation to the applicant’s argument that he remained liable to pay the outstanding unpaid tax, it noted the undertaking given by the Inland Revenue on 20 February 1998 that it would not pursue the applicant for pre-existing tax liabilities out of any income which he might acquire in future.
On 10 October 2000, the House of Lords, reversing an earlier refusal, allowed his petition for leave to appeal from the Court of Appeal on a number of points and also permitted him to raise a new point relating to Article 6 of the Convention as concerned his conviction on count 11.
On 11 October 2001, the House of Lords dismissed his appeal. Lord Hutton giving judgment noted the applicant’s arguments under the Convention in which he relied in particular upon the cases of Funke v. France and Saunders v. the United Kingdom, that the prosecution case against him breached his right to a fair trial as he had been compelled under threat of penalty to incriminate himself by providing the schedule of assets and found as follows:
“... the present case is one which relates to the obligation of a citizen to pay taxes and to his duty not to cheat the Revenue. It is self evident that payment of taxes fixed by the legislature is essential for the functioning of any democratic state. It is also self-evident that to ensure the due payment of taxes the State must have power to require its citizens to inform it of the amount of their annual income and to have sanctions available to enforce the provision of that information ...”
He proceeded to review the tax legislation which required taxpayers to make tax returns.
“It is clearly permissible for a State to enact such provisions and there could be no substance in an argument that there is a violation of Article 6 § 1 if the revenue prosecuted a citizen for cheating the revenue by furnishing a standard tax return containing false information. Similarly, in the present case, viewed against that background that the State, for the purpose of collecting tax, is entitled to require a citizen to inform it of his income and to enforce penalties for failure to do so, the section 20(1) notice requiring information cannot constitute a violation of the right against self-incrimination. The present case is therefore clearly distinguishable from Saunders on that ground ...”
The applicant complained that the Hansard warning procedure infringed Article 6 § 1 as it infringed the privilege against self-incrimination and his right to silence. He was placed under both threat and inducement to give information and the schedule of assets which he then gave comprised the totality of the evidence against him on count 11 of the indictment.
The applicant also complains that he has been victim of a double punishment. Though the confiscation order was set having regard to the tax liability which he had evaded, the applicant’s tax liability remained payable. This results in confiscation of all his assets and continuation unabated of his tax liability which he argues is disproportionate and unfair. In that context, he invokes Article 1 of Protocol No. 1.
The applicant also invokes Article 5 of the Convention, alleging that he has been deprived of his liberty not in accordance with a procedure prescribed by law.
1. The applicant complains that he was required to incriminate himself contrary to Article 6 § 1 of the Convention which provides as relevant:
“In the determination ... of any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law. ...
The Court recalls its established case-law to the effect that, although not specifically mentioned in Article 6 of the Convention, the rights invoked by the applicant, 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 (see the John Murray v. the United Kingdom judgment of 8 February 1996, Reports of Judgments and Decisions 1996-I, pp. 49-50, §§ 44-47). 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 in question is closely linked to the presumption of innocence contained in Article 6 § 2 of the Convention (the above-cited Saunders judgment, § 68).
The right not to incriminate oneself is primarily concerned, however, with respecting the will of an accused person to remain silent in the context of criminal proceedings and the use made of compulsorily obtained information in criminal prosecutions. It does not per se prohibit the use of compulsory powers to require persons to provide information about their financial or company affairs (see the above mentioned Saunders judgment, where the procedure whereby the applicant was required to answer the questions of the Department of Trade Inspectors was not in issue). In the present case, therefore, the Court finds that the requirement on the applicant to make a declaration of his assets to the Inland Revenue does not disclose any issue under Article 6 § 1, even though a penalty was attached to a failure to do so. The obligation to make disclosure of income and capital for the purposes of the calculation and assessment of tax is indeed a common feature of the taxation systems of Contracting States and it would be difficult to envisage them functioning effectively without it.
The Court notes that in this case the applicant does not complain that the information about his assets which he gave the Inland Revenue was used against him in the sense that it incriminated him in the commission of an offence due to acts or omissions in which he had been involved prior to that moment. His situation may therefore be distinguished from that of the applicant in Saunders (judgment cited above). Nor was he prosecuted for failing to provide information which might incriminate him in pending or anticipated criminal proceedings, as in the cases of Funke, Heaney and McGuinness and J.B. (Funke v. France judgment of 25 February 1993, Series A no. 256-A; Heaney and McGuinness v. Ireland, no. 34720/97, ECHR 2000-XII; J.B. v. Switzerland, no. 31827/96, ECHR 2001-III). The applicant was charged with and convicted of the offence of making a false declaration of his assets to the Inland Revenue. In other words, he lied, or perjured himself through giving inaccurate information about his assets. This was not an example of forced self-incrimination about an offence which he had previously committed; it was the offence itself. It may be that the applicant lied in order to prevent the Inland Revenue uncovering conduct which might possibly be criminal and lead to a prosecution. However, the privilege against self-incrimination cannot be interpreted as giving a general immunity to actions motivated by the desire to evade investigation by the revenue authorities.
Furthermore, not every measure taken with a view to encouraging individuals to give the authorities information which may be of potential use in later criminal proceedings must be regarded as improper compulsion (see the above-mentioned John Murray v. the United Kingdom judgment, § 46). The applicant faced the risk of imposition of a penalty of a maximum of GBP 300 if he persisted in refusing to make a declaration of assets, which may be contrasted with the position in the Saunders case, where a two year prison sentence was the maximum penalty (above mentioned judgment, § 70). Nor does the Court consider that any improper inducement was brought to bear through the use of the so-called “Hansard Warning” which informed the applicant of the practice of the Inland Revenue of taking into account the co-operation of the taxpayer in deciding whether to bring any prosecution for fraud. There is no indication that the applicant was misled as to the effect of the warning, accepting that it could not be interpreted as any kind of guarantee of freedom from prosecution.
Consequently, the Court does not find that the facts of this case disclose any infringement of the right to silence or privilege against self-incrimination or that there has been any unfairness contrary to Article 6 § 1 of the Convention. It follows that this part of the application must be rejected as manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention.
2. The applicant complains of remaining subject to tax liability after imposition of a confiscation order on his assets, invoking Article 1 of Protocol No. 1 which provides
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
The Court recalls that the applicant was sentenced on conviction to a confiscation order calculated with reference to the amount of his gain from his offences, namely the amount of tax evaded and the amount of his assets. While it appears that the applicant remains liable under the applicable tax provisions for the amount of outstanding tax, this point was raised on appeal and the Court of Appeal found that it had no substance as the Inland Revenue had given an undertaking not to pursue the outstanding tax. The applicant has not argued that this undertaking would not be enforceable. The Court is not therefore persuaded that he remains subject to a real risk of an attempt by the Inland Revenue to recover the same amount of tax twice.
This complaint must therefore be rejected as manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention.
3. Finally, the applicant invokes Article 5 of the Convention which provides as relevant:
“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(a) the lawful detention of a person after conviction by a competent court;”
The applicant was convicted of various offences and sentenced after trial to a term of 12 years’ imprisonment. He raised grounds of appeal concerning his conviction which were rejected by the Court of Appeal and House of Lords. The Court finds no basis on which to find that his detention after conviction was not “in accordance with a procedure prescribed by law” or justified in terms of Article 5 § 1(a) above. Accordingly it rejects this complaint as manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Michael O’Boyle Matti Pellonpää
ALLEN v. THE UNITED KINGDOM DECISION
ALLEN v. THE UNITED KINGDOM DECISION