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Judgments - Regina v. Hertfordshire County Council Ex Parte Green Environmental Industries Ltd. and Another (A.P.)

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    In my opinion the Serves case turns on the fact that Captain Serves was at risk of being required to incriminate himself in the very proceedings in which he was, for Convention purposes, charged with murder. The questions were to be put to him as part of the judicial process. The case is therefore not relevant to extra-judicial inquiries.

    Mr. Vaughan also referred to the decision of the European Court of Justice in Funke v. France (1993) 16 E.H.R.R. 297. Mr. Funke was fined in a French court for failing to produce bank statements demanded under statutory powers by customs officers. The court, differing from the Commission, held that there had been a breach of Article 6(1). The reasoning of the Court was very briefly expressed. It said (in para. 44):

    "The Court notes that the customs secured Mr. Funke's conviction in order to obtain certain documents which they believed must exist, although they were not certain of the fact. Being unable or unwilling to procure them by some other means, they attempted to compel the applicant himself to provide the evidence of offences he had allegedly committed. The special features of customs law cannot justify such an infringement of the right of 'anyone charged with a criminal offence' within the autonomous meaning of this expression in Article 6, to remain silent and not to contribute to incriminating itself."

    I am bound to say that there are obscurities in this reasoning. What were the criminal proceedings in which Mr. Funke was deprived of the right to a fair trial? They could not have been the prosecution for the offences suspected by the customs officers, since that was never brought. The only proceedings against him were for failure to produce his bank statements. In those proceedings, however, he was not obliged to incriminate himself. There was no need, because his guilt under French law was established by his failure to produce the bank statements. Perhaps the case is best regarded as an example of Lord Mustill's principle that without some good reason everyone has the right to tell other people, even customs officers, to mind their own business. It is however clear that the court in Saunders did not regard this case as casting doubt upon the clear distinction which it drew between extrajudicial inquiries and the use of the material thereby obtained in a subsequent criminal prosecution.

    Finally Mr. Vaughan referred to the case of Orkem v. The Commission [1989] E.C.R. 3283, a decision of the European Court of Justice which concerned the powers of the Commission to demand information in the course of its investigation of possible offences against the Community competition laws. Article 11 of Regulation 17 of 1962 gave the Commission power, for the purposes of ensuring the application of the principles of Community competition law, to "obtain all necessary information" from undertakings under investigation. The Commission sent Orkem a wide-ranging questionnaire, including requests for factual information about correspondence and meetings with other firms, but also some questions which in effect required Orkem to confess that it had acted unlawfully. The Court of Justice said that the Commission was entitled to ask for factual information, even if it might be incriminating. In para. 27, p. 3350 of the judgment, it said that:

    "Regulation No 17 does not give an undertaking under investigation any right to evade the investigation on the ground that the results thereof might provide evidence of an infringement by it of the competition rules. On the contrary, it imposes on the undertaking an obligation to cooperate actively, which implies that it must make available to the Commission all information relating to the subject-matter of the investigation."

It followed that (para. 37, p. 3352) -

    "the questions…relating to meetings of producers, which are intended only to secure factual information on the circumstances in which such meetings were held and the capacity in which the participants attended them, and also the requirement of disclosure of documents in the applicant's possession relating thereto, are not open to criticism."

    What was objectionable was questions such as the request for particulars of "every step or concerted measure which may have been envisaged or adopted to support such price initiatives" which were an attempt to force Orkem to admit that it had taken part in price-fixing. These were calculated to undermine the right of the company to defend itself. This infringed the "need to safeguard the rights of the defence which the court has held to be a fundamental principle of the Community legal order." (para. 32) The court concluded (at para. 35, p. 3351):

    "The Commission may not compel an undertaking to provide it with answers which might involve an admission on its part of the existence of an infringement which it is incumbent upon the Commission to prove."

    It seems to me clear that all the Council's requests for information fell on the right side of the line drawn by the Court of Justice in this case. They were all requests for factual information. None invited any admission of wrongdoing.

    For these reasons I think that the appellants were obliged to answer the request for information and I would dismiss the appeal.

    At the conclusion of the argument counsel for the parties were invited to make written submissions to your Lordships on whether, in the light of the recent decision of the House in Reg. v. Director of Public Prosecutions, Ex parte Kebilene, [1999] 3 W.L.R. 972 in which judgments were delivered on 28 October 1999, judicial review was an appropriate procedure by which to raise the question at issue in this appeal. I am grateful to counsel for their submissions, but in view of my conclusion that the appellants were wrong as a matter of substantive law and that the point was bound to fail, I do not express any view on the hypothetical question of what would have been an appropriate procedure if the point had been a good one.


My Lords,

    Having had the advantage of reading in draft the speech of my noble and learned friend Lord Hoffmann, I agree that the alleged possibility of self-incrimination did not provide the appellant with reasonable excuse for failing to supply the information specified in the Council's notice. He was bound to comply, but could successfully contend in any subsequent prosecution that his answers could not be put in evidence against him. The reasoning in Saunders v. United Kingdom (1996) 23 E.H.R.R. 313 and the purpose of the Environmental Protection Act 1990 combine to produce this result.

    I would add only some observations on two points. First, if it had been necessary for the disposal of this appeal to determine whether article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms would rule out the admission in a prosecution of evidence obtained in consequence of the answers (sometimes called "derivative" evidence), it might well be that a reference to the European Court of Justice would have been appropriate. Such issues are the subject of much and difficult case law in various jurisdictions, and at the present stage the jurisprudence of the European Courts may leave the matter unclear. But this appeal does not require your Lordships to make a determination of the "derivative" evidence question.

    Secondly, as a party to the decision of your Lordships in Reg. v. Director of Public Prosecutions, Ex parte Kebilene [1999] 3 W.L.R. 972 I would not myself see that decision as having any strong bearing on the availability of judicial review in a case of this kind. The case of Kebeline turned on the principle that pending indictment proceedings in which a question may be determined should not be delayed or complicated by satellite civil proceedings designed to raise the same question. In the present case it was on the same day, 7 February 1996, that the company and the appellant filed and served an application for leave to apply for judicial review and the respondent served on the company a summons charging the offence of non-compliance with the requisition. I do not understand Kebilene to have anything impliedly to say as to such a situation. The general ability of a citizen to challenge by appropriate civil proceedings the validity of a requisition issued against him or her by a public authority is classically exemplified by Dyson v. Attorney-General [1911] K.B. 410, although in that case the enforcement procedure open to the Crown was an action for penalties, rather than a prosecution. The ability is not invariable, and there is an extensive tract of relevant case law, dealt with in the standard works on administrative law; but that line of authorities was not considered in Kebilene. Again, although it is well conceivable that in a case of environmental emergency a judge might decline leave to apply for judicial review,. the considerations relevant to the exercise of the judicial discretion would not necessarily be the same as those which dictated the result in Kebilene. Comparisons might not be truly helpful.

    I would dismiss this appeal.


My Lords,

    I too agree that this appeal should be dismissed for the reasons given by my Noble and Learned Friend Lord Hoffmann.

    I also agree with my Noble and Learned Friend Lord Cooke of Thorndon that, at the time that they were initiated, these judicial review proceedings represented an appropriate procedure for a person to adopt if he was seeking for good cause to obtain an order quashing the decision to serve a notice under section 71 of the Environmental Protection Act 1990. The situation which it was necessary to consider in Reg. v. Director of Public Prosecutions, Ex parte Kebilene [1999] 3 W.L.R. 972 related to a question arising during the course of a criminal trial in the Crown Court. There may, of course, be cases where judicial review proceedings properly started are overtaken by a later criminal prosecution raising the same issue and therefore require a choice between determining the issue in the one or the other proceedings. However it is not necessary to discuss that essentially practical question on this appeal.


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