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Session 2002 - 03
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Judgments - Regina v Lyons and others (Appellants) (on appeal from the Court of Appeal (Criminal Division)


Lord Bingham of Cornhill Lord Hoffmann Lord Hutton Lord Hobhouse of Woodborough Lord Millett Court of Appeal: [2001] EWCA Crim 2860









[2002] UKHL 44


My Lords,

    1. The four appellants appeal against the refusal of the Court of Appeal (Criminal Division) in 2001 to quash convictions recorded against them in 1990: [2002] 2 Cr App R 210, [2001] EWCA Crim 2860. They contend that their convictions should be quashed because the prosecution case against them at trial depended in significant part on answers given by them to inspectors armed with statutory power to compel answers. The admission of evidence of these answers at trial has since been held by the European Court of Human Rights, in the case of all the appellants, to infringe their right not to incriminate themselves and so to violate their right to a fair trial guaranteed by article 6 of the European Convention on Human Rights ("the convention"). The essential question before the House is whether, in view of these rulings by the European Court, the appellants' convictions should now be quashed.

The factual background

    2. In 1986 Guinness plc made an offer to buy the shares of the Distillers Company plc. The offer included an exchange of Guinness shares for Distillers shares. The higher the value of the Guinness shares, the more valuable the offer and thus the more attractive to Distillers shareholders. It was suspected that the four appellants, in different capacities and in different ways, had acted to inflate the price of Guinness shares in the market in order to promote acceptance of its offer. Inspectors were appointed to investigate the affairs of Guinness under Part XIV of the Companies Act 1985. By virtue of section 434 of that Act it became the duty of the appellants as officers or agents of Guinness to attend before the inspectors when required to do so and to give the inspectors all the assistance they were reasonably able to give. Failure to comply was punishable as contempt of court (section 436). Section 434(5) of the Act provided:

    "An answer given by a person to a question put to him in exercise of powers conferred by this section … may be used in evidence against him"

As Lord Hoffmann points out (see paragraphs 22 and 33 below), provisions and rules having this effect have a long ancestry. The appellants answered questions put to them by the inspectors.

    3. An indictment containing some 24 counts was preferred charging the appellants variously with offences of conspiracy, false accounting, theft and other offences. At the appellants' trial, which lasted for some 6 months during 1990, the prosecution relied in support of its case against the appellants on transcripts of the evidence they had given to the inspectors. On 27 and 28 August 1990 the jury convicted each of the appellants on 4 or more of the counts in the indictment.

    4. Before the trial there had been 2 hearings to rule on the admissibility of evidence. At the first, held in November 1989, Mr Parnes sought to exclude the transcripts relating to him on the grounds provided in sections 76 and 78 of the Police and Criminal Evidence Act 1984. Henry J ruled that the transcripts were admissible, for reasons summarised by the European Court in Saunders v United Kingdom (1996) 23 EHRR 313 at 319, in paragraph 28 of its judgment. At the second hearing, in January 1990, Mr Saunders sought to exclude evidence of answers given by him at the last 2 of his 9 interviews with the inspectors. In reliance on sections 76 and 78 of the 1984 Act, he contended that this evidence should be excluded because of his state of health at the time of those interviews and because they took place after he had been charged. The judge ruled, in the exercise of his discretion under section 78, that the evidence of these last 2 interviews should be excluded on the second (but not the first) of the grounds relied on. Mr Lyons and Mr Ronson did not apply to exclude evidence of their answers. At the trial, Mr Saunders, alone of the appellants, gave evidence. Mr Ronson relied on what he had said and written to the inspectors.

    5. All four appellants appealed against conviction, although Mr Lyons abandoned his appeal on grounds of ill-health in December 1990. The Court of Appeal gave judgment on 16 May 1991 and dismissed the appeals, save that Mr Saunders' conviction on one count was quashed and (on appeals against sentence) certain sentences and costs orders imposed and made by the judge were reduced. At pages 27-28 of the transcript of its judgment of 16 May the Court of Appeal said:

    "At the end of counsel's submissions it was made clear to the court that counsel for Mr Parnes and for Mr Saunders might wish to address further arguments to the court as to the admissibility of statements made by these appellants in the course of their interviews with the DTI inspectors. It is now accepted, however, that the question of admissibility has been determined, as far as this court is concerned, by the decision given on 9 May 1991 by another division of this court presided over by Watkins LJ in R v Seelig [(1992) 94 Cr App R 17]"

Mr Seelig was a defendant charged with offences, also arising out of the Guinness takeover of Distillers, whose trial had been scheduled to follow that of the appellants. In the reported case, evidence of answers compulsorily given to inspectors was held to be properly admissible (see pages 22-23).

    6. Mr Saunders made application to the Commission complaining that the use at his trial of statements made by him to the inspectors acting under their compulsory powers had deprived him of a fair hearing in violation of article 6(1) of the convention. On 10 May 1994 the Commission found, by a large majority, that there had been such a violation.

    7. The appellants' case was referred back to the Court of Appeal by the Home Secretary under section 17(1)(a) of the Criminal Appeal Act 1968 and a further hearing took place over 8 days in 1995. The judgment of the court, delivered on 27 November 1995, is reported at (1996) 1 Cr App R 463. The "first broad ground of appeal" (page 473) related to the questioning of the appellants by the inspectors, the lack of protection against self-incrimination and the use of the transcripts at the trial. It was accepted for the appellants that in Part XIV of the 1985 Act Parliament had overridden privilege against self-incrimination, and that answers so obtained might be admitted as evidence in criminal proceedings, but it was submitted that the judge should have exercised his discretion to exclude the evidence under section 78 of the 1984 Act because "the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it" (page 475). The Court of Appeal first considered arguments based on the 1985 Act and then turned to the convention, of which Lord Taylor of Gosforth CJ, delivering the judgment of the court, said (at pages 477-478):

    "Mr Caplan submits that in applying section 78, the trial judge should also have had regard to Article 6 of the European Convention on Human Rights and having done so should have excluded the interviews. Article 6 does not specifically refer to the principle against self-incrimination, but relying on Funke v France (1993) 16 EHRR 297 Mr Caplan submitted that the Article carries the implication that a person should not be required to incriminate himself. However that may be, English courts can have recourse to the European Convention on Human Rights and decisions thereon by the European Court of Justice only when the law of England is ambiguous or unclear. Saunders has taken his case to Europe on this issue and the European Commission on Human Rights has referred it to the European Court in Strasbourg. Should Saunders succeed there, our Treaty obligations will require consideration to be given to the effect of the decision here. But our duty at present is to apply our domestic law which is unambiguous. Parliament has made its intentions quite clear in section 434(5). It cannot be right for a judge to exercise his discretion to exclude evidence of interviews simply on the ground that Parliament ought not to have countenanced the possibility of self-incrimination. Nor could he properly do so for the general purpose of bringing section 434(5) into line with section 2(8) of the 1987 Act, a step which Parliament has advisedly declined to take. In the course of argument, we invited counsel for the appellants to say whether they contended that on either of these grounds judges should, as a general rule, exclude under section 78 interviews by DTI inspectors. Although their arguments logically pointed to that conclusion, all counsel shied away from it when the question was posed. In our view, the admission in evidence of answers which Parliament has said may be admitted cannot be regarded as unfair per se under section 78 simply because of inherent features of the statutory regime under which they were obtained. However, in considering whether the particular application of the statutory regime in a given case created any unfairness, a judge can, in our view, as part of the background setting, have in mind that under that regime there is an obligation to answer the inspectors' questions on pain of sanctions. In that sense we respectfully agree with Lord Browne-Wilkinson that the judge can take those features of the regime into account. We consider later whether there was any unfairness deriving from the circumstances of the interviews in the present case."

Mr Lyons' conviction on one count was quashed, but otherwise the appeals were dismissed. Shortly after this decision Mr Lyons, Mr Ronson and Mr Parnes made complaints to the Commission to the same effect as that already made, successfully, by Mr Saunders.

    8. The judgment of the European Court upholding Mr Saunders' complaint by a majority was delivered on 17 December 1996: Saunders v United Kingdom (1996) 23 EHRR 313. In response to this decision the Attorney General issued guidance to prosecutors, referring to section 434(5) of the 1985 Act and other statutory provisions to similar effect and indicating that, save in certain situations not relevant for present purposes, prosecutors should not normally use in evidence as part of the prosecution case or in cross-examination answers obtained under compulsory powers. Statutory effect was given to this guidance by section 59 of and Schedule 3 to the Youth Justice and Criminal Evidence Act 1999.

    9. On 19 September 2000 the European Court unanimously upheld the complaints of Mr Lyons, Mr Ronson and Mr Parnes (applications nos 29522/95, 30056/96 and 30574/96) on essentially the same grounds as in Mr Saunders' case. This decision prompted Mr Lyons, Mr Parnes and Mr Ronson to make application to the Criminal Cases Review Commission which on 20 December 2000 referred Mr Lyons' case to the Court of Appeal. This decision in turn prompted Mr Saunders to make application to the CCRC, which on 28 February 2001 referred to the Court of Appeal the cases of Mr Parnes, Mr Ronson and Mr Saunders also. All 4 cases were then, by virtue of section 9(2) of the Criminal Appeal Act 1995, to be treated as appeals under section 1 of the Criminal Appeal Act 1968.

    10. On 21 December 2001 the Court of Appeal again dismissed the appellants' appeals in the judgment now under appeal: [2002] 2 Cr App R 210. In the judgment of the court delivered by Rose V-P, the crux of the court's reasoning is to be found in paragraphs 53-57. The court's conclusions, crudely summarised, were these:

    (1) the obligation of the United Kingdom under article 46 of the convention to abide by judgments of the European Court does not confer any right on these appellants;

    (2) it is doubtful whether article 46 requires the re-opening of convictions, the court having made a declaration of violation, made an award of costs and declined to make an award of damages;

    (3) since the case against each of the appellants was supported by evidence other than the compelled answers, restitutio in integrum could be achieved only by quashing the appellants' convictions and ordering a retrial, but given the lapse of time since the convictions the case is not one in which the court would in any event exercise its discretion to order a retrial;

    (4) even if failure to re-open the appellants' convictions might give rise to a violation of article 46 by the United Kingdom, the domestic statutory law of the United Kingdom precludes reliance on such violation in the circumstances since "the will of Parliament as expressed in section 434 trumps any international obligation";

    (5) the appellants' compelled answers could not have been excluded by the trial judge in exercise of his discretion under section 78 on grounds of unfairness arising from use of the compelled answers alone, since Parliament had expressly permitted such use;

    (6) the decision of Hobhouse J in Dallal v Bank Mellat [1986] QB 441 gives the appellants no assistance, since that case did not concern a conflict between the decision of an international tribunal and a domestic statutory provision.

While the Court of Appeal indicated, as noted in (3), that there was evidence to support the prosecution case against each of the appellants independently of the compelled answers, it also held (in paragraph 47 of the judgment, a conclusion on which the appellants rely strongly) that the court would not hold the convictions to be safe if the compelled answers were to be treated as excluded.

    11. The Court of Appeal refused leave to appeal to the House but certified the following question as one of general public importance:

    "Where the Court of Appeal (Criminal Division) is called upon to determine the safety of a criminal conviction following a finding by the European Court of Human Rights that the use made at trial before 2 October 2000 of evidence obtained under powers of statutory compulsion in section 434 of the Companies Act 1985 rendered the appellant's trial unfair and in breach of Article 6 of the European Convention on Human Rights

      (a)   is the Crown entitled to rely after 2 October 2000 upon the evidence the use of which was held to have rendered the trial unfair in order to support the safety of the conviction; and

      (b)   is the Court entitled to hold the conviction safe in reliance on such evidence;

    notwithstanding the United Kingdom's obligation under Article 46 of the European Convention to abide by the judgment of the European Court, and the principle of judicial comity governing the recognition and enforcement of a judgment of an international tribunal which is final and binding as between the parties to the appeal?"

The argument for the appellants

    12. In his skilful and powerful argument for the appellants Mr Emmerson QC roundly accepted, as in the light of R v Lambert [2001] 3 WLR 206 [2001] UKHL 37 and R v Kansal (No 2) [2002] 2 AC 69, [2001] UKHL 62 he was bound to accept, that a defendant convicted before 2 October 2000 (when the main provisions of the Human Rights Act 1998 came into force) cannot rely on breaches of "the Convention rights" referred to in section 1(1) of that Act in an appeal heard after that date. He also made plain that his argument did not at all rely on the incorporation of the convention into the domestic law of the United Kingdom by the 1998 Act. Had the convention never been incorporated his argument would have been the same, since it depended on the duty of the United Kingdom, binding in international law, to comply with treaties (such as the convention) which it had made and on the general duty of the courts, as a public organ of the state, to act so far as possible in a manner consistent with the international obligations of the United Kingdom. The main steps of the argument, in brief and inadequate summary, were these:

    (1) by ratifying the convention the United Kingdom undertook to give effective protection (subject to the terms of the convention) to certain specified rights, among them the right to a fair trial expressed in article 6;

    (2) the obligations set out in the convention are binding in international law on member states including the United Kingdom;

    (3) among the obligations binding on the United Kingdom are those expressed in articles 41 and 46, which provide

      "Article 41 - Just satisfaction

      If the Court finds that there has been a violation of the Convention or the protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party."

      "Article 46 - Binding force and execution of judgments

      1.   The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.

      2.   The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution;"

    (4) Where a violation has occurred it is the duty of the member state concerned to make reparation to the fullest extent possible under national law;

    (5) where a conviction results (or may result) from breach of the convention right to a fair trial, and the conviction cannot be upheld irrespective of that breach, full reparation can be afforded only if the conviction is quashed;

    (6) national courts should, so far as they are free to do so, seek to act in a manner consistent with the obligations of the state binding in international law;

    (7) while deference to the sovereignty of Parliament may preclude a United Kingdom court from giving effect to an obligation binding on the state in international law, it does not do so in present circumstances because (a) section 434(5) was expressed in permissive, not mandatory, terms, and (b) that section has now been substantially qualified so as to prevent prosecutors adducing evidence of compelled answers save in certain exceptional situations which did not obtain here;

    (8) considerations of judicial comity should lead the English court to give full effect to the judgment of the European Court.

Mr Emmerson also suggested that, since the United Kingdom is party to the convention, the conduct of the crown in seeking to uphold the convictions is an abuse of the process of the court.

The issues

    13. I am attracted by the broad thrust of Mr Emmerson's submissions numbered (1) to (6). It is true, as the Attorney General insisted, that rules of international law not incorporated into national law confer no rights on individuals directly enforceable in national courts. But although international and national law differ in their content and their fields of application they should be seen as complementary and not as alien or antagonistic systems. Even before the Human Rights Act 1998 the convention exerted a persuasive and pervasive influence on judicial decision-making in this country, affecting the interpretation of ambiguous statutory provisions, guiding the exercise of discretions, bearing on the development of the common law. I would further accept, as Mr Emmerson strongly contended, with reference to a number of sources, that the efficacy of the convention depends on the loyal observance by member states of the obligations they have undertaken and on the readiness of all exercising authority (whether legislative, executive or judicial) within member states to seek to act consistently with the convention so far as they are free to do so.

    14. Mr Emmerson however accepted, as submission (7) in my summary makes clear, that a convention duty, even if found to exist, cannot override an express and applicable provision of domestic statutory law. Whether the Court of Appeal was (and the House is) subject to such a constraint is in my view the central issue in this case.

    15. The jurisdiction of the Court of Appeal in criminal matters is wholly statutory. Section 2(1) of the Criminal Appeal Act 1968 (as substituted by section 2 of the Criminal Appeal Act 1995) provides

    "Subject to the provisions of this Act, the Court of Appeal -

      (a)   shall allow an appeal against conviction if they think that the conviction is unsafe; and

      (b)   shall dismiss such an appeal in any other case".

Thus the Court of Appeal must decide whether it thinks a conviction unsafe: if so, it is subject to a mandatory duty to allow the appeal; if not, it is subject to a mandatory duty to dismiss it. The decision on safety must be taken with reference to the conviction (or convictions) actually recorded against the appellant. That directs attention to the trial leading to the conviction, the evidence adduced, the judge's rulings and directions, any irregularity which may have occurred, and so on. But a court called upon to decide whether a conviction is safe will make its decision at the time of the hearing before it and in the light of any fresh evidence or new argument which is then received or addressed. The old procedure under section 17(1)(a) of the 1968 Act required, and the current procedure under section 9 of the 1995 Act continues to require, that the Court of Appeal should exercise its own judgment on the question of safety, unfettered by the failure of a previous appeal or appeals, which there will almost always have been.

    16. When judging the safety of old convictions the Court of Appeal has applied contemporary standards of fairness but has accepted that the case was governed by the law applicable at the date of trial. Thus, for example, in R v Bentley (Deceased) [2001] 1 Cr App R 307 the court found the summing-up to have been unfair but had to apply the doctrine of constructive malice because that was not abolished until the enactment of section 1(1) of the Homicide Act 1957. In the present case, if the question of fairness were at large and the trial judge had been unconstrained by any statutory or common law rule, it would have been open to the Court of Appeal to pay heed and give appropriate weight to the European Court's judgment that the conduct of the appellants' trial was rendered unfair by the admission of the compelled evidence even if the Court of Appeal had previously held the admission of such evidence to be fair. But, as Mr Emmerson fairly recognised, the situation may be different if the trial judge was obliged by law to act as he did.

    17. It is plain from the terms of section 434(5), quoted in paragraph 2 above, that a prosecutor was not required to put in evidence the answers given by defendants to inspectors exercising compulsory powers. If the answers did not advance the case of the prosecution or the defence, the prosecutor did not have to adduce that evidence, which might distract and could not assist the jury. But while the prosecutor had discretion not to adduce the evidence, he also had a statutory discretion to use it against the defendant if he chose. His discretion to adduce that evidence was subject to the judge's overriding discretion to exclude it under section 78 of the 1984 Act. If it appeared to the court that, having regard to all the circumstances, including the circumstances in which the evidence had been obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it, the evidence could be excluded. Thus Henry J, for sound reasons, excluded evidence of Mr Saunders' last two interviews. There was however no taint of oppression or unfairness affecting the remainder of the compelled evidence other than the fact that it had been compelled and that it was to be used in evidence against the appellants. But these procedures had been expressly sanctioned by Parliament. Had the judge excluded the evidence on these grounds alone he would have acted unlawfully because inconsistently with the enacted will of Parliament. The judge's duty was (and is) not only to "do right to all manner of people" but also, importantly, to do so "after the laws and usages of this realm". I consider that the law was accurately stated by the Court of Appeal in R v Staines and Morrisey [1997] 2 Cr App R 426 at 440-444, where the facts were different from those here but the issue (as understood by the court) was very much the same. The Court of Appeal's unreported decision in R v Faryab (No 98/2591/73, 22 February 1999), where reliance had been placed on compelled evidence after the date of the Attorney General's direction that such evidence should not be adduced, is explicable on its facts but lays down no principle.

    18. Mr Emmerson sought to overcome the obvious problem posed by section 434(5) by pointing out that the will of Parliament has changed, as evidenced by the 1999 qualification of the section. This argument cannot avail the appellants for two reasons. First, as already pointed out, the Court of Appeal is bound, whenever an appeal takes place, to accept the substantive law as it stood at the time of the trial. It cannot proceed on the assumption that the substantive law binding on the trial court was otherwise than as it was. Secondly, although section 434(5) was very significantly qualified in 1999, in response to the judgment of the European Court, such qualification was not given retrospective effect. Nothing in the language of the 1999 enactment suggests such an intention. Nor, as the House has twice held, did Parliament intend criminal appellate courts hearing appeals after 2 October 2000 to take notice of breaches of convention rights occurring before that date: R v Lambert [2001] 3 WLR 206; R v Kansal (No 2) [2002] 2 AC 69. Thus section 434(5) as it stood at the date of the appellants' trial must be regarded as the applicable expression of Parliament's intention, subject to no derogation or qualification.

    19. This conclusion is fatal to the success of the appeals, as the Court of Appeal rightly held. In the circumstances, I think it neither necessary nor desirable, despite the wealth of interesting material to which we were referred, to consider what full reparation or just satisfaction might require in a case such as the present in which (if the compelled evidence were excluded) the existing convictions could not be upheld as safe, in which there is material (irrespective of the compelled evidence) to support a case against the appellants, but in which the Court of Appeal has indicated (no doubt rightly, in view of the lapse of time, the serving or partial serving of prison sentences and the age and health of some of the appellants) that the interests of justice would not appear to require a retrial even if the appeals were allowed (see section 7(1) of the Criminal Appeal Act 1968). These are no doubt questions which the European Court or the Committee of Ministers, or both, may be called upon to address and I forbear to comment. I would however comment briefly on two of Mr Emmerson's submissions. First, I do not think that Dallal v Bank Mellat [1986] QB 441 assists the appellants, since in that case Hobhouse J was free to apply familiar common law principles unconstrained by any statutory enactment. Secondly, I find nothing abusive in the prosecution's resistance to these appeals. It is true that the ratification of the convention by the United Kingdom was an act of the executive. But the important aim underlying the establishment of the Crown Prosecution Service by the Prosecution of Offences Act 1985 was to emphasise its role as a public service independent of the executive, and although the Director of Public Prosecutions discharges his functions under the superintendence of the Attorney General (see section 3) both are required in this context to act as independent ministers of justice. The Court of Appeal may not allow an appeal against conviction unless it thinks the conviction to be unsafe, and in deciding whether it is safe or unsafe the court is entitled to the professional assistance of an independent prosecuting authority.