Legislative Scrutiny: Financial Services Bill and the Pre-Budget Report - Human Rights Joint Committee Contents


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 July 2009

Thank you for your letter of 7th July[12] 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 not work.

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 and elsewhere.

Letter to the Chair of the Committee from Rt Hon Stephen Timms MP, Financial Secretary to the Treasury, dated 22 July 2009

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 November

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 concluded.

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 Office

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 or elsewhere.

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 and 9

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 applies.

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 [2004] 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.

II 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 of crime…".

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?

Clause 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 searched.

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.

Clause 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 a constable.

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 8 ECHR.

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: supplementary

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.

III 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 two cases.

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.

Article 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 or penalties

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.

Clause 8 ECHR

71. Article 8 may also be relevant to clause 20
Article 8
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 are brought.

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 of crime.

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).

Conclusion

None of the provisions in the Bill appear to infringe the ECHR.

November 2009


12   Published in the Committee's 20th Report of 2008-09, HL 133/HC 882 Back


 
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