Written Evidence |
The correspondence published below relates to the
Committee's scrutiny of section 58 of the Finance Act 2008.
Letter to the Chair of the Committee from Rt Hon
Stephen Timms MP, Financial Secretary to the Treasury, dated 22
Thank you for your letter of 7th July
in which you ask for a memorandum on s58 FA 2008. In particular,
a detailed assessment of the impact of the legislation, detailed
justification for retrospective effect, and evidence that HMRC
have consistently made the case that the avoidance scheme does
By way of background, this legislation retrospectively
clarifies pre-existing anti-avoidance legislation which was itself
introduced with retrospective effect. The retrospective aspect
of the legislation is the subject of a number of applications
for judicial review - a main element of which is the quest for
a declaration of incompatibility of that retrospective aspect
with the European Convention of Human Rights. Permission for a
review was granted by the High Court on 16th June for one of those
cases. HMRC is in the process of preparing its formal defence
with a hearing likely towards the end of this year. In the circumstances,
I wonder if you and the committee would be content that, rather
than providing the memorandum you have requested, HMRC undertakes
to keep you informed about the progress of the case.
Your report also recommends that in the future
a memorandum be provided to the Committee identifying provisions
in the Finance Bill which have retrospective effect. I am willing
to consider this , but as I'm sure you will appreciate, I will
need to discuss further with colleagues in the Ministry of Justice
Letter to the Chair of the Committee from Rt Hon
Stephen Timms MP, Financial Secretary to the Treasury, dated 22
Section 58 Finance Act 2008
Thank you for your letter of 22 July, which my Committee
considered at its meeting last week.
We are disappointed that you have not provided the
memorandum we asked for and have suggested that we will not receive
a substantive response to the issues we raised until after judicial
review proceedings have concluded. We would be grateful if you
could reconsider your position. We have received numerous representations
about section 58 and are unable to assess the human rights compatibility
of the measure without being informed of the Government's position.
I am grateful for your offer to keep us informed
about the progress of the judicial review case and it would be
very helpful if you could do so. As a first step, could you let
us know when the judicial review is likely to be heard?
Finally, I note your encouraging response about alerting
us in future to provisions in the Finance Bill which have retrospective
effect, which you intend to discuss further with colleagues in
the Ministry of Justice and elsewhere. It would be helpful if
arrangements for such a memorandum could be put in place before
next year's Finance Bill is published, so perhaps you could let
me know what progress you have made in your discussions early
in the new year? I am copying this letter to Michael Wills MP,
who has responsibility for human rights at the Ministry of Justice.
Letter to the Chair of the Committee from Rt Hon
Stephen Timms MP, Financial Secretary to the Treasury, dated 16
Thank you for your letter of 22 October.
With regard to progress of the judicial review I
can advise you that there will be a Case Management Hearing in
the High Court on 17th November 2009 in respect of
two applications . HMRC will be represented by Rabinder Singh
QC at that hearing. The substantive hearing has been listed over
3 days beginning 19th January 2010. If there are any
changes to these dates I will write to you again.
Given that this issue will be fully examined in the
High Court in the near future I hope you will accept that it would
be inappropriate for me to set out the Government's position with
the case still pending. I will of course keep you informed of
any further developments as the case progresses and also let you
have a final memorandum once all judicial proceedings have been
I will update you early next year on the progress
of discussions about the proposed memorandum on retrospective
provisions in the Finance Bill.
Memorandum submitted by the Foreign and Commonwealth
CLUSTER MUNITIONS (PROHIBITION) BILL 2009
1. This Memorandum addresses any human rights issues
arising in relation to the Cluster Munitions(Prohibitions) Bill.
2. The Bill is intended to give effect to the international obligations
in the Convention on Cluster Munitions 2008. This Convention is
a multilateral treaty the purpose of which is to prohibit cluster
munitions that cause unacceptable suffering to civilians. The
Bill is needed to enable the United Kingdom to implement the obligations
in the Convention and proceed to ratify the Convention.
3. At Article 9, the Convention requires that:
"Each State Party shall take all appropriate legal, administrative
and other measures to implement this Convention, including the
imposition of penal sanctions to prevent and suppress any activity
prohibited to a State Party under this Convention undertaken by
persons or on territory under its jurisdiction or control".
4. Under Article 1 of the Convention a State Party
many not use cluster munitions, or develop, produce, otherwise
acquire, stockpile, retain or transfer to anyone, directly or
indirectly, cluster munitions; or assist, encourage or induce
anyone to engage in any activity prohibited to a State Party under
this Convention. These prohibitions apply also to explosive bomblets.
5. Under Article 21(3) of the Convention, the "interoperability"
provision, notwithstanding Article 1, State Parties, their military
personnel or nationals may engage in military co-operation and
operations with States not parties to the Convention that may
carry out the activities, prohibited to a State Party, which are
referred to in the previous paragraph. Article 21(4) however sets
out exceptions to Article 21(3) which reflect a number of the
prohibitions under Article 1: a State Party may not develop, produce
or otherwise acquire cluster munitions; it may not itself stockpile
or transfer cluster munitions; or itself use them, or expressly
request the use of them in cases where the choice of munitions
is within its exclusive control.
6. The Bill creates offences to reflect the prohibitions
in the Convention and penalties for committing the offences, in
order to enforce the prohibitions on cluster munitions in the
Convention. It also creates defences including the visiting forces
defence to protect, while in the United Kingdom, visiting forces
of non State parties who use cluster munitions e.g. those of the
United States of America and the interoperability defence to protect
United Kingdom armed forces in the circumstances referred to in
paragraph 5 above. The Bill also sets out a number of ancillary
provisions such as a power to enter premises and destroy prohibited
objects (cluster munitions and explosive bomblets) and powers
to search and obtain evidence when there are reasonable grounds
for suspecting an offence under the Bill has been committed.
Brief Description of the Bill
7. Clause 1 defines certain terms such as "prohibited
munition" and "cluster munition". Clause 2(1)
provides that it is an offence for a person to use, develop, produce,
acquire or transfer prohibited cluster munitions, or have them
in one's possession or make arrangements under which another person
acquires them or make arrangements for another person to transfer
a prohibited munition. Under Clause 2 (2) it is an offence to
assist, encourage or induce any other person to engage in this
conduct. A person found guilty of an offence under this section
is liable to imprisonment for a term not exceeding 14 years, or
a fine, or both.
8. Clause 4 provides that section 2(1) applies to
conduct in the United Kingdom or elsewhere. Section 2(2) applies
to assistance, encouragement and inducements in the United Kingdom
or elsewhere. In their application outside the United Kingdom
both subsections only apply to United Kingdom nationals, Scottish
partnerships or bodies incorporated in part of the United Kingdom.
Section 2(2) applies whether or not the conduct assisted, encouraged
or induced takes place or will take place in the United Kingdom
9. In clauses 5, 6, 7, 8 and 9 the Bill provides
that under certain circumstances it is for the person charged
with an offence to show that a defence applies to him. In clause
5 it is a defence for a person charged with certain offences under
clause 2 to show his conduct was carried out for the purposes
of enabling a prohibited munition to be destroyed or that at the
time he gave assistance, encouragement or inducement to another
person to engage in any conduct, he had reasonable cause to believe
that the other person had a defence in respect of their conduct
under subsections (1) to (5).
10. In clause 6, it is a defence for a person charged
with certain offences under clause 2 to show that his conduct
was carried out for permitted purposes ("permitted purposes"
is defined in subsection (8)) and had been authorised by the Secretary
of State or that at the time he gave the assistance, encouragement
or inducement to another person to engage in any conduct, he had
reasonable cause to believe that the other person had a defence
in respect of their conduct under subsections (1) to (5).
11. Clause 7 sets out defences relating to the state
of mind of the defendant. For example, it provides for a defence
to certain offences under Clause 2 if the person charged can show
that he neither knew, nor suspected, nor had any reason to suspect,
that the object in question was a prohibited munition. Another
example is that if the prohibited munition was in the person's
possession it is a defence if the person can show that as soon
as he first had knowledge or suspicion that it was a prohibited
munition he took all reasonable steps, as soon as reasonably practicable,
to inform the Secretary of State, or a constable or a member of
a service police force.
12. Clause 8 sets out defences
for visiting forces in the United Kingdom. For example, it is
a defence under clause 8 for a person who was charged with an
offence under clause 2(1)(e) to show that he was the member of
a visiting force or working with a visiting force of a State not
party to the Convention and his possession of the prohibited munitions
was in accordance with the terms of an authorisation given to
that State by the Secretary of State.
13. In clause 9 it is a defence for a person charged
with an offence listed in paragraphs 1 to 6 of Schedule 2 to show
that the conduct took place in the course of or for the purposes
of an international military operation or co-operation activity.
An international military operation is defined in subsection
(2) and an international military co-operation activity is defined
in subsection (3).
14. Clause 10 is about the evidential burden as respects
defences and the effect of an authorisation given before the coming
into force of the Act for the purposes of sections 6 and 8.
15. Clauses 11-26 are ancillary provisions to do
with securing destruction of prohibited munitions including powers
of search and entry, information and records for Convention purposes,
powers to search and obtain evidence, disclosure of information
and criminal proceedings.
16. Clauses 27 to 34 set out general provisions including
safeguards in connection with the exercise of powers of entry
and service of notices.
17. There are three Schedules. Schedule 1 sets out
definitions of cluster munitions and related terms. Schedule
2 sets out the offences to which Article 9 applies and deals with
the application of the defence in section 9(1) for offences relating
to use or transfer and to conduct by visiting forces. Schedule
3 deals with amendments of other Acts.
I Reverse Burden of Proof - clauses 5, 6, 7, 8
Article 6 ECHR
18. In the Cluster Munitions (Prohibition) Bill,
there are various provisions for defences. For each of these (at
clause 5, 6, 7, 8 and 9) the wording sets out that it shall be
for a person charged with an offence to show that the defence
19. This is qualified by clause 10 of the Bill which states:
(1) Subsection (2) applies where a person relies on a defence
under this Act
(2) If evidence is adduced which is sufficient to raise an issue
with respect to the defence, the court must assume that it is
satisfied unless the prosecution proves beyond reasonable doubt
that it is not.
20. Article 6(2) of the European Convention on Human Rights
(ECHR) implements the presumption of innocence in criminal law:
"Everyone charged with a criminal offence shall be presumed
innocent until proved guilty according to law".
21. A reverse burden of proof operates where there
is a presumption of law or fact which places the burden of proof
on the defendant to rebut that presumption. . Where the evidential
burden is reversed, the defendant simply has to raise the defence,
and it is for the prosecution to prove beyond reasonable doubt
that it does not apply to him.
22. The Convention and Court of Human Rights case-law do not outlaw
presumptions of fact or law but require that these should be kept
within reasonable limits and should not be arbitrary. The overriding
concern is that a trial should be fair, and the presumption of
innocence is a fundamental right directed to that end. In particular,
the operation of the presumptions must not strip a trial court
of any effective power of assessment of the facts or guilt. (see
for example Salabiaku v. France). In the case of Sheldrake
 MKHL43, Lord Bingham made it clear that "the task
of the court is never to decide whether a reverse burden should
be placed on a defendant, but always to assess whether a burden
enacted by parliamentary authority unjustifiably infringes the
presumption of innocence".
23. The defences in clauses 5, 6, 7, 8 and 9, as
qualified by clause 10, ensure that an evidential burden of proof
only is imposed on the defendant. It is enough for the defence
to "show" that one of the defences apply to him. The
legal burden of proof remains on the prosecution to prove beyond
reasonable doubt that the defence does not apply. These provisions
are compatible with the ECHR.
Powers of Search and Entry
Article 8 ECHR
24. The powers of search and entry set out in the
Bill are to be found at clauses 12, 13, 16, 21 and 22. Clause
27 on safeguards in connection with the exercise of powers of
entry needs to be read with them. The provisions are consistent
with the Police and Criminal Evidence Act as far as possible.
25. The ECHR Article 8(2) provides that:
"1. Everyone has a right to respect for his private and
family life, his home and his correspondence.
2. There shall be no interference by a public authority with the
exercise of this right except such as is in accordance with the
law and is necessary in a democratic society
for the prevention
26. The case law of the Court of Human Rights has concentrated
on the requirements that searches be "lawful" and that
there are adequate procedural safeguards against arbitrariness
and abuse. For example, in the case of Niemietz v. Germany,
the court found the order for search and seizure of documents
without any limitation to be disproportionate, particularly in
the context of the confidentiality attaching to correspondence
and documents of a lawyer. The minor nature of the offence which
led to the search was also relevant. There must also be sufficient
reasons for carrying out a search at the particular location (see
Smirnov v. Russia, June 7, 2007).
27. The manner in which the entry or search is conducted
must also be compatible with Article 8. In particular, the means
employed should be proportionate to the legitimate aim pursued.
In the Keegan v. UK case, the circumstances
in Northern Ireland necessitated the precautions taken by the
armed forces on entering houses. In contrast, in the Mcleod
v.UK case, a power for the police to enter a house to prevent
a breach of the peace was generally acceptable but in the case
in question, there was little risk of crime and disorder because
the applicant was not in the house at the relevant time.
28. As to the search warrant itself, in the case
of Smirnov v. Russia, the warrant was considered too broad
because it gave the police "unrestricted discretion"
in removing items. Likewise in the case of Ernst, the warrant
contained no limitation.
29. The essential aim of Article 8 is
to protect the individual against arbitrary action by the public
authorities by preventing unjustified interference with a person's
private and family life, his home and correspondence. In assessing
whether there is such interference the Court considers four questions:
a) was there an interference?
b) was the interference in accordance with the law?
c) did the interference have a legitimate aim or aims?
d) was the interference necessary in a democratic society?
12: Power to enter premises and search for prohibited munitions
30. Clause 12 empowers the Secretary of State to
authorise a person to enter and search premises if the Secretary
of State has reasonable cause to believe that conditions A to
C (set out in paragraph 31) are met. A justice of the peace may
issue a warrant authorising a person acting under the Secretary
of State's authority to enter and search premises if the justice
of the peace is satisfied, on information on oath that conditions
A to B are satisfied.
31. Condition A is that there is a prohibited munition
defined in clause 1(3)(b) on the premises. Condition B is that
the persons in possession of it would not have a relevant defence.
Condition C is that the public has access to the premises or they
are occupied by someone who consents to them being entered and
32. The application for a warrant must specify the premises in
respect of which the application is made. The warrant is only
in force for one month from the date of issue and it can only
authorise entry on one occasion only. "Premises" are
defined in clause 31(1) and include land, moveable structures,
vehicles, vessels, aircraft and hovercraft.
33. In the case of clause 12, there would be an interference
with a person's right to respect for his home. "Home"
in terms of Article 8 can be both a private person's home and
a professional person's office (see Buck v. Germany and
Niemitz v. Germany). The interference would, however, be
in accordance with the law, namely the Bill and it would be justified
because it is necessary for the prevention of crime, namely criminal
offences under the Bill, such as possession of a prohibited munition.
So the interference would have a legitimate aim. But the main
issue is whether the interference is "necessary in a democratic
society", that is, that it is proportionate to the legitimate
aim pursued. The interference would be proportionate because entry
would be on the basis of reasonable cause to believe that there
is a prohibited munition on the premises and the person(s) who
possess the prohibited munition would not have a relevant defence.In
the case in which the premises are not public, the person consents
to his premises being entered and searched. The application for
the warrant must specify the premises in respect of which the
application is made and the warrant will only be valid for one
month and only authorise entry on one occasion only. Furthermore
the safeguards set out in clause 27 apply where relevant.
In conclusion 12(1) does not breach Article 8 ECHR.
13: Removal or immobilisation of prohibited munitions
34. This clause is about the removal or
immobilisation of prohibited munitions. It provides that a person
authorised by a warrant issued under section 12(2) may use force
to enter premises, if necessary. A person who enters premises
under a warrant issued under section 12(2) or under an authorisation
under section 12(1) may take with him such other persons and such
equipment on to the premises as appear necessary. When on the
premises, the person may make safe any prohibited munition which
is found or seize and remove it, if reasonably practicable to
do so, or affix a warning to it stating that the prohibited munition
is not to be moved or interfered with. The authorisation or warrant
may provide that the person exercising the powers conferred by
the warrant or authorisation may only do so in the presence of
35. The provision about use of force if necessary
is justified because prohibited munitions are a danger to the
public. While the power of entry itself would be an interference
with the right of respect for a person's home, it would be authorised
by the Bill and would be justified for reasons to do with the
prevention of criminal offences, namely offences under the Bill
such as possession of a prohibited munition. So the interference
would have a legitimate aim. The interference would be justified
and proportionate because the forcible entry would be on the basis
of a warrant granted on the basis of information on oath that
there is a prohibited munition on the premises and the person
possessing the prohibited munition does not have a relevant defence.
In conclusion clause 13 would not breach Article
Clause 16: Power to enter premises and destroy
immobilised prohibited munitions
36. Clause 16 confers a power on the Secretary of
State to authorise a person to enter premises and destroy an immobilised
prohibited munition. A justice of the peace may issue a warrant
in writing authorising such a person to enter the premise and
destroy the prohibited munition. The justice has to be satisfied
on information on oath that the Secretary of State has decided
under section 15(6) that a prohibited munition should be destroyed
and it is on premises where a warning relating to that prohibited
munition was affixed. The application for the warrant must specify
the premises in question and the warrant is only valid for one
month and may only authorise entry on one occasion only.
37. A person authorised by a warrant to enter the premises may
use force if necessary and take such persons and equipment as
he thinks necessary. The person who exercises the powers may do
so only in the presence of a constable if the authorisation or
warrant states this.
38. The safeguards set out in clause 27 apply where
relevant. This clause raises similar issues to those already examined
in clauses 12 and 13 and also does not appear to breach Article
8 ECHR for the reasons stated in relation to those clauses.
Clause 21: Power to search and obtain evidence:
issue of warrant
39. This confers a power to search and obtain evidence
where a justice of the peace issues a warrant in writing authorising
a person acting under the authority of the Secretary of State
if the justice is satisfied on information on oath that either
condition A (i.e. that there are reasonable grounds for suspecting
an offence under the Act has, is or is about to be committed on
the premises) or condition B (i.e. that there are reasonable grounds
for suspecting that evidence of the commission of an offence under
the Act is to be found on the premises) apply. An application
for a warrant may be made by any one acting under the authority
of the Secretary of State. It must specify the premises concerned.
The warrant is to be in force for one month only from the date
of issue and may authorise entry on one occasion only.
40. The safeguards set out in clause 27 apply where relevant.
Clause 21 raises similar issues to those raised by clause 12 and
there are similar reasons for considering that ECHR Article 8
is not breached.
Clause 22: Power to search and obtain evidence:
41. Clause 22 which contains supplementary provisions
to do with powers of search and obtaining evidence, provides that
a person authorised by a warrant issued under section 21 to enter
and search premises may if necessary, use force to enter premises
(subsection (1)) and take such persons and equipment on to the
premises as appear necessary to that person (subsection (2)(a)).
42. It also provides powers under subsection (2)
to inspect documents found on the premises which the person has
reasonable cause to believe may be required as evidence for proceedings
in respect of an offence under the Act, take copies of, seize
or remove such documents and require information stored in electronic
form to be produced in an accessible form in which it can be taken
away and is visible and legible. The person can also take copies
of or seize and remove any electronic information in an accessible
form and inspect, seize and remove devices or equipment or substances
and sample such substances, such as the person has reasonable
cause to believe may be required as evidence in proceedings for
offences under the Act. Items seized may not be returned for as
long as necessary in all the circumstances. The person seizing
anything under subsection (2) must provide a record of the seizure
if requested by the occupier of the premises or by the person
who had possession or control of the item immediately before it
was seized. The person who is authorised to take action under
subsection (2) cannot take action in relation to anything in respect
of which a claim to legal professional privilege could be maintained
in legal proceedings.
43. Under subsections (6) and (7) and (8) a constable
who enters under a warrant issued under section 21 or by virtue
of subsection 2(a) can search anyone on the premises who he has
reasonable cause to believe possesses any document, device, equipment
or substance required as evidence but cannot search someone of
the opposite sex. A warrant issued under section 22 can provide
that a person who exercises the powers conferred by the warrant
can only do so in the presence of a constable, if that person
is not a constable (subsection (9)).
44. There is no breach of Article 8 ECHR because while there is
an interference with the rights of the person whose premises are
searched, or of the occupier of the premises or of the person
who possessed or controlled an item before it was seized, the
interference is authorised under the Act, and it has a legitimate
aim which is to find evidence for the purposes of criminal proceedings
under the Act. The interference is proportionate to the aim in
question which is searching for and obtaining evidence for criminal
proceedings under the Act. The person seeking the evidence must
have reasonable cause to believe what is seized and removed may
be required as evidence.
Powers to remove, immobilise, forfeit and destroy cluster munitions
Protocol 1, Article 1 ECHR
45. Clause 12 is
described at paragraphs 30-32 above.
46. Clause 13 provides that a person authorised by a warrant (under
clause 12) is entitled to enter premises and may if necessary
use force to do so. A person who enters premises under an authorisation
of the Secretary of State under clause 12(1) or a warrant under
clause 12(2) may make a prohibited munition safe and may seize
and remove it or fix a warning to it. But a person cannot exercise
these powers if the prohibited munition is in the possession of
a person(s) who has a defence under sections 5 or 6 if charged
with possessing a prohibited munition.
47. Clauses 14 and 15 provide the Secretary of State with power
to destroy removed or immobilised prohibited munitions. Before
doing this the Secretary of State must serve a notice on the person
in whose possession the prohibited munition was or on anyone else
with an interest materially affected by destruction of a prohibited
munition, allowing them time to make objections to the destruction
of the prohibited munition. If the Secretary of State has not
authorised the destruction of the prohibited munition within a
year, it must be returned to the person in whose possession it
was, while if it is destroyed the Secretary of State may recover
from the possessor any costs reasonably incurred by the Secretary
of State in connection with the removal and destruction or destruction.
48. Clause 16 gives the Secretary of State power to authorise
a person to enter premises to destroy a prohibited munition that
has been immobilised, where he has decided under section 15(6)
that it should be destroyed. Additionally, a justice of the peace
may issue a warrant in writing authorising a person acting under
the Secretary of State's authority to enter premises and destroy
the immobilised munition. A number of safeguards apply in the
50. Clause 17 provides for a person to make a claim for compensation
to the High Court or the Court of Session in Scotland in the event
that the person had a materially affected interest in a prohibited
munition which has been destroyed, has suffered loss as a result
of the destruction, and was not served a notice under Clauses
14 or 15.
51. Clause 18 provides for offences including ones where a person
wilfully obstructs another person who is entering and searching
premises under an authorisation or warrant issued under section
12(1) or (2), or who is making a prohibited munition safe, seizing
or removing it or fixing a warning, or who is destroying a prohibited
munition under an authorisation or who is entering premises under
an authorisation or a warrant issued under section 16(2) or (4).
A person is also guilty of an offence if without reasonable
excuse he moves or interferes with a prohibited munition to which
a warning has been affixed or interferes with the warning, or
knowingly makes false or misleading statements in response to
a notice served under certain sections of the Bill.
52. Clause 25 provides that where a person has been convicted
of an offence under the Act the court may order that anything
that is shown to the court's satisfaction to be related to the
offence may be forfeited and destroyed, or dealt with as the Secretary
of State sees fit. The court may not make a forfeiture order
unless the person who has an interest in it has been given an
opportunity to show why it should not be made.
1 Protocol 1
53. 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 paragraphs shall not, however, in any way impair
the right of the 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
54. Considerable room for manoeuvre
is accorded in respect to confiscation of property. The jurisprudence
is focused on whether a fair balance has been struck between the
public and private interest.
55. In Handyside v UK (7 December 1976, para
66) the Court set out that Article 1, Protocol 1 establishes the
Contracting States as sole judges for the "necessity"
of an interference. Lawfulness must be ascertained by addressing
whether domestic legislation regulates the deprivation, and the
purpose must fall within "public interest".
56. The public interest has been held by the Court
to be necessarily extensive (Hentrick v France, Sept 22
1994, para. 39). The Court has stated that it will offer a wide
margin of appreciation in respect of the Member State's judgment
as to what is in the public interest unless it is "manifestly
without reasonable foundation".
57. In Agosi v UK (Oct 24, 1986) the Court
held that there were procedural safeguards and requirements implicit
in the protection of property rights. There should be procedures
by which reasonable account could be taken of the link between
the conduct of the owner and the breach of the law and to afford
the owner to put his case to the authorities.
58. As such, the seizure of goods that have been
seized in a criminal context has proved acceptable in the case
that the seizure has pursued lawful and legitimate purposes, even
when the seizure has been draconian, provided that there were
minimum requirements of procedural safeguards and domestic lawfulness.
59. In Agosi and Air Canada v UK (May
5, 1995) the possibility of judicially reviewing a decision to
confiscate property was found to furnish sufficient procedural
protection even though the decisions were essentially unreasoned,
thereby limiting the ability to challenge them in judicial review.
60. Conversely, in the case of Baklanov v Russia
June 9, 2005, where there was no legal basis for the confiscation
of US $250,000 whatsoever and the applicant had committed no offence
in respect of the money, there was a breach of Protocol 1.
61. The Bill provides a legal basis for seizing items,
and there is clearly a sound "public interest" in doing
so. Additionally, there are numerous procedural safeguards within
the Bill in the detailed requirements in clauses 13 to 17 for
ensuring that any power to seize or destroy prohibited munitions
is not exercised arbitrarily and that those affected are given
an opportunity to make representations before destruction takes
place or are given the right to apply for compensation. In the
event of forfeiture in case of conviction under clause 25, before
the court orders that the forfeited item is destroyed or disposed
of in any other way, a person claiming an interest in it has the
right to be heard before the court makes its order.
62. Accordingly, the clauses in the Bill on removal,
immobilisation, forfeiture and destruction do not appear to cause
concern in relation to the ECHR, as by their very nature they
are provided for in domestic law, they pursue an aim that can
be described as being in "the public interest" and they
are adequately subject to safeguards.
IV Information and Records for Convention purposes
Article 6 ECHR
63. Clause 20 provides that the Secretary of State
may serve a notice on a person requiring that person to give such
information as is described in the notice which the Secretary
of State has reasonable cause to believe is needed or will be
needed for Convention purposes. A person who fails to provide
the information, without reasonable excuse, is guilty of an offence
and liable on conviction to a fine. A person who knowingly makes
a false statement is guilty on conviction either to a fine, or
if convicted on indictment, to imprisonment for a term not exceeding
two years. Article 6 of the ECHR may have relevance to this provision,
in terms of protection against self-incrimination.
64. The relevant provisions of Article 6 are paragraph 1, on fair
trial, and para.2 on the presumption of innocence.
1. In the determination of his civil rights and obligations
or of any criminal charge against him, everyone is entitled to
a fair and public hearing within a reasonable time by an independent
and impartial tribunal established by law. Judgement shall be
pronounced publicly but the press and public may be excluded from
all or part of the trial in the interest of morals, public order
or national security in a democratic society, where the interests
of juveniles or the protection of the private life of the parties
so require, or to the extent strictly necessary in the opinion
of the court in special circumstances where publicity would prejudice
the interests of justice.
2. Everyone charged with a criminal offence shall be presumed
innocent until proved guilty according to law.
65. In Funke v France (Feb 25 1993)
the general principle is that Article 6.1 contains the right of
anyone charged with a criminal offence to remain silent and not
to incriminate himself. In the case of John Murrray v UK the Court
found that the right to remain silent under police questioning
and the privilege against self incrimination were internationally
recognised standards which lay at the heart of the notion of a
fair trial and protected the accused from miscarriages of justice.
66. Where a procedure infringes the privilege
against self-incrimination the Court will consider the nature
and the degree of compulsion as well as the existence of any safeguards
to the procedures and what any material obtained in this way would
be used for. It will also take into account the weight of the
public interest in the investigation of the offence.
67. In Funke the Court found that
the fines imposed on a person for failing to disclose documents
relating to his financial transactions offended against the principle
against self-incrimination. This approach has however attracted
considerable criticism. In Saunders v UK (Dec 17,1996) an applicant,
who had not yet been charged, was compelled to give oral evidence
in an inquiry conducted by DTI inspectors. It was not regarded
as falling under the scope of Article 6. It has since been recognised
that requiring someone to provide information to the authorities
under threat of penalty does not infringe the privilege against
self-incrimination. However in the same case, where interviews
obtained through compulsory powers were later used in criminal
proceedings, the Court found that the essence of the privilege
against self-incrimination required the prosecution to prove their
case without resort to evidence obtained through coercion (so
did not apply to interviews that were exculpatory). In Shannon
v UK (April 10, 2004) the Court recognised that penalising someone
for refusing to provide information when they are charged or likely
to be charged with an offence, even if the information is not
subsequently used for criminal proceedings, may be problematic.
68. In a later case, Allen v UK (10 Sept
2002) the Court clarified its position in finding that the purpose
of the protection against self-incrimination is primarily so that
the will of a person who wishes to remain silent during criminal
proceedings is respected, and did not preclude the use of compulsory
powers to require persons to provide information about their company
or financial affairs.
69. The Court has found that the position
of drivers is different because in effect they have consented
by using a vehicle to adhere to a special regulatory regime (O'Halloran
and Francis v UK, June 29 2007).
70. In the Bill, powers of compulsion
are set out in clause 20 because the Secretary of State may serve
a notice on a person requiring that person to give such information
as is described. If the person without reasonable excuse fails
to comply with a notice served, he or she is guilty of an offence
and liable to a fine. The Secretary of State must have reasonable
cause to believe that the information is necessary in connection
with anything to be done for the purposes of the Convention, and
it may relate to a state of affairs existing pre-Convention. It
is a mechanism whereby the Secretary of State can gather information
about the functioning of the Convention and matters to do with
cluster munitions that existed pre-Convention. In the Saunders
case, requiring a person to provide information under compulsory
powers did not infringe the privilege against self-incrimination.
Clause 20 does not in itself breach Article 6, ECHR. To avoid,
however, that there is any risk of self-incrimination arising
when clause 20 is read with clause 23(2)(d), a provision has been
inserted into subsection 20(6) to provide that the power conferred
by subsection 20(1) may not be exercised as to require a person
to provide information which might incriminate that person or
their spouse or civil partner. The Secretary of State would in
consequence be unable compulsorily to acquire such information.
This is relevant to disclosure under clause 23 for the purposes
of criminal proceedings or criminal investigations, one of the
exceptions to the prohibition against disclosure in clause 23.
It ensures compatibility with the other principle in the Saunders
case whereby testimony obtained under compulsion should not be
used in criminal proceedings to incriminate the defendant.
71. Article 8 may also be relevant to
Everyone has the right to respect for his private and family life,
his home and his correspondence. There shall be no interference
by a public authority with the exercise of this right except such
as is in accordance with the law and is necessary in a democratic
society in the interests of national security, public safety or
the economic well-being of the country, for the prevention of
disorder or crime, for the protection of health or morals, or
for the protection of the rights and freedoms of others.
72. Public information can fall within
the scope of private life where it is systematically collected
and stored in files held by the authorities, particularly where
such information relates to a person's past. The Court has also
stated that Article 8 corresponds with the Council of Europe's
Data Protection Convention whose purpose is to secure for every
individual his right to privacy with regard to the automatic processing
of personal data relating to him. Thus it is arguable that the
fact of recording and using any personal data is an interference.
73. The recording of personal information
for purposes of criminal investigation generally will concern
private life but may be justified, in the circumstances explicitly
set out in Article 8 itself. This includes information obtained
by the police in investigations where no criminal proceedings
74. In McVeigh (8022/77, (Rep)
March 18, 1981, 25 DR 15) questioning, searching fingerprinting
and photographing the applicants was said to be an interference
but was justified in the interests of public safety and prevention
75. The Bill sets out a means by which
information relating to the purposes of the Convention is requested
- as opposed to personal information being systematically collected,
as appears to be envisaged by the Article 8 jurisprudence relating
to private information. It does not therefore appear that the
requesting of information in this way will offend Article 8. In
any event, when the aim of requesting the information is lawful,
necessary in a democratic society and proportionate to the aim,
as appears to be the case here, there will not be interference
with the individual's rights under Article 8.
76. There appears to be no breach of Articles
6 and 8 of the ECHR in respect of clause 20, including when read
with clause 23(2)(d).
None of the provisions in the Bill appear to infringe
12 Published in the Committee's 20th Report
of 2008-09, HL 133/HC 882 Back