|Judgments - Regina v Lyons and others (Appellants) (on appeal from the Court of Appeal (Criminal Division)
20. The references in the certified question to reliance by the crown and the court on the compelled evidence do not seem to me entirely apt, but the thrust of the question is clear and I would answer it in the affirmative. I would accordingly dismiss the appeals.
21. The question in this appeal is whether the appellants had a fair trial. Strictly speaking, it is whether their convictions are unsafe. That is the word used by section 2(1)(a) of the Criminal Appeal Act 1968 (as substituted by section 2(1) of the Criminal Appeal Act 1995) to state the only ground upon which the Court of Appeal is permitted and required to allow an appeal against a conviction on indictment. But unsafe does not mean only that the accused might not have committed the offence. It can also mean that whether he did so or not, he was not convicted according to law. As Rose LJ said in R v Mullen  QB 520, 540: "for a conviction to be safe, it must be lawful." And what the law requires, among other things, is that the accused should have had a fair trial.
22. The appellants say that their trial was not fair because the prosecution was allowed to lead evidence of statements which they had made in answer to questions put by inspectors appointed by the Secretary of State under section 432 of the Companies Act 1985 to investigate the affairs of Guinness plc. They had been obliged by law to answer those questions. Section 436 provides that if a person refuses to answer, a court may punish him as if he had been guilty of contempt. There is no express exception for answers which tend to incriminate and in In re London United Investments plc  Ch 578 the Court of Appeal decided, by analogy with decisions on powers of investigation in personal and corporate insolvency proceedings which went back more than a century, that no such exception was to be implied. The appellants do not challenge this decision. They accept it as showing that they had no alternative but to answer. So the appellants say that it was a denial of a fair trial for their answers to be given in evidence. It infringed the principle that they should not be required to incriminate themselves.
23. The difficulty for the appellants is that section 434(5) says in express terms that a person's answer to the inspectors "may be used in evidence against him". At the trial, they tried to get round this problem by asking the judge to exclude their statements under section 78 of the Police and Criminal Evidence Act 1984. This gives the judge a discretion to exclude admissible evidence. He may do so if it appears to him having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that he ought not to admit it. But the judge (Henry J) said that if Parliament had said in express terms that the statements were to be admissible notwithstanding that they had been obtained by statutory compulsion, it would not be a lawful exercise of the discretion for him to exclude them solely on the ground that they had been obtained by statutory compulsion. The Court of Appeal agreed, both when the case was first referred to them in 1995 ( 1 Crim App R 463, 473-478) and in the reference giving rise to this appeal. This reasoning has not been challenged in your Lordships' House.
24. What is said to make a difference is that the European Court of Human Rights ("ECtHR") has ruled on two occasions, once in relation to the appellant Saunders (Saunders v UK (1996) 23 EHRR 313 and then again in relation to the other three appellants (IJL, GMR and AKP v UK (19 September 2000) that the admission of the statements infringed the right to a "fair and public hearing" in accordance with Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention"). After the first of these decisions, the Attorney-General issued guidelines telling prosecutors to stop tendering such statements in evidence. Afterwards, Parliament amended section 434 of the 1985 Act. By paragraph 5 of Schedule 3 to the Youth Justice and Criminal Evidence Act 1999, it inserted two new subsections, (5A) and (5B), which provide that the answers are not to be admissible in any criminal proceedings other than for making false statements on oath. It is clear from the language of these amendments, however, that they are not retrospective. They apply only to trials taking place after they came into force on 14 April 2000.
25. The Human Rights Act 1998 also came into force in 2000. At one stage it was thought that it might also have some retrospective effect upon the question of whether the appellants had a fair trial. But in two recent decisions the House has held that it was not retrospective: R v Lambert  3 WLR 206 and R v Kansal (No. 2)  2 AC 69. I shall have something to say in due course about the 1998 Act but Mr Emmerson QC, who appeared for the appellants, did not rely upon it. He said that his arguments about the effect of the two judgments of the ECtHR would be exactly the same even if the 1998 Act had never been passed.
26. What, then, is the effect of the ECtHR rulings upon the question of whether the appellants' convictions are safe? The Convention is an international treaty made between member States of the Council of Europe, by which the High Contracting Parties undertake to "secure to everyone within their jurisdiction the rights and freedoms defined in Section 1 of this Convention." Article 19 sets up the ECtHR "to ensure the observance of the engagements undertaken by the High Contracting Parties". It has jurisdiction under Article 32 to decide "all matters concerning the interpretation and application of the Convention". And by Article 46 the High Contracting Parties undertake "to abide by the final judgment of the Court in any case to which they are parties."
27. In other words, the Convention is an international treaty and the ECtHR is an international court with jurisdiction under international law to interpret and apply it. But the question of whether the appellants' convictions were unsafe is a matter of English law. And it is firmly established that international treaties do not form part of English law and that English courts have no jurisdiction to interpret or apply them: JH Rayner (Mincing Lane) Ltd v Department of Trade and Industry  2 AC 418. Parliament may pass a law which mirrors the terms of the treaty and in that sense incorporates the treaty into English law. But even then, the metaphor of incorporation may be misleading. It is not the treaty but the statute which forms part of English law. And English courts will not (unless the statute expressly so provides) be bound to give effect to interpretations of the treaty by an international court, even though the United Kingdom is bound by international law to do so. Of course there is a strong presumption in favour of interpreting English law (whether common law or statute) in a way which does not place the United Kingdom in breach of an international obligation. As Lord Goff of Chieveley said in Attorney-General v Guardian Newspapers Ltd (No.2)  1 AC 109, 283:
28. But for present purposes the important words are "when I am free to do so". The sovereign legislator in the United Kingdom is Parliament. If Parliament has plainly laid down the law, it is the duty of the courts to apply it, whether that would involve the Crown in breach of an international treaty or not.
29. At the time of the trial, therefore, section 434(5) of the 1985 Act required the court to admit the statements, whether or not this would be considered by the ECtHR to be an infringement of Article 6. Does it make any difference that today, when the appeal is being decided, the ECtHR has given its rulings and section 434(5) has been amended? Can one say that according to current notions, the appellants did not have a fair trial?
30. I do not think that one can. In Brown v Stott  2 WLR 817, 825 Lord Bingham of Cornhill said:
I respectfully agree. But that does not mean that the court is at large, assessing the fairness of the trial in each case by reference to some overarching abstract notion of fairness. A fair trial requires compliance with a collection of rules and principles. Some of the rules are highly specific; for example, the rule that at least ten jurors must agree with the verdict. Some are expressed at a more abstract level; for example, the rule that a judge should exclude evidence which would prejudice the fairness of the trial or the rule that the accused is entitled to a fair summing up. The application of these principles is very case-specific. But whether the criteria of fairness involve compliance with rules or principles, they are all legal rules and principles, derived from English statute and common law.
31. In deciding, therefore, whether the accused had a fair trial in 1990, the question is whether the trial complied with those rules and principles of English law which constitute the criteria of fairness. And in English law (as, I would imagine, in every other system of law) there is no absolute "right to silence" or privilege against self-incrimination. Instead there is what Lord Mustill in R v Director of Serious Fraud Office, Ex p Smith  AC 1, 30 described as?
32. In the present case, the common law privilege had been expressly encroached upon by section 434(5). For the same reasons as Lord Taylor of Gosforth, on the first referral, said that the statements could not be excluded under section 78 of the 1984 Act on the ground that their admission would adversely affect the fairness of the trial, so it cannot be said on appeal that a trial in which those statements were admitted was unfair.
33. If the encroachment had been by a judge-made rule of common law or a judicial implication in a statute which did not expressly address the question, it would in theory have been open to the court to say that the previous common law rule or judicial interpretation had been wrong and that the law should rather be understood in a sense which conformed to the judgment of the ECtHR. For example, in the present case, even if there had been no section 434(5), the chances are that before the Saunders case the courts would have construed the statute as impliedly making the answers admissible. That was the view of the Court for Crown Cases Reserved in relation to the investigatory powers conferred by the Bankruptcy Act 1849 (see R v Scott (1856) Dears & B 47) and this decision has been followed in many cases concerned with individual or corporate insolvency: see, for example, R v Erdheim [1896 ] 2 QB 260. If the question had remained a matter of judicial decision, it would have been open to the court after the Saunders case to say that the decision in Scott's case was wrong and that the powerful dissenting judgment of Coleridge J should be preferred to Lord Campbell CJ's judgment on behalf of himself Alderson B, Willes J and Bramwell B. In that case, the appellants would have had the benefit of the declaratory theory of judicial decision-making by which the new interpretation would be treated as stating what the law had always been.
34. I do not say that the courts would necessarily have done so, particularly in the light of Parliament's 1999 decision to change the law without retrospective effect. Lord Bingham of Cornhill has referred to the case of R v Bentley (Deceased)  1 Cr App R 307 in which the appeal was heard nearly half a century after the trial. He says that while the Court of Appeal was able and indeed obliged to apply the current common law principles about the fairness of the summing up, it had to apply the doctrine of constructive malice because it was not abolished until the Homicide Act 1957. I am sure that is right, but it should be observed that constructive malice was a common law doctrine and it was theoretically open to the court (at least, at an appropriate level in the judicial hierarchy) to say that it was and always had been a mistake, just as the House of Lords in R v R  1 AC 599 overturned, with retrospective effect, the ancient marital immunity from conviction for rape. But where Parliament has prospectively amended the law, it would be an unusual case in which the courts re-examined the previous law in order to declare that it had always been different.
35. In this case, however, there is not even the theoretical possibility of the courts making a retrospective change in the law. There is no way in which section 434(5) can be reinterpreted to make it possible for the statements to have been excluded. The language does not allow it.
36. So far, I think that Mr Emmerson was inclined to accept the arguments for the Crown on the position in English domestic law. He also accepted that the Convention, as such, formed no part of English law. But he submitted that an English court should give effect to the judgments of the ECtHR in relation to these particular appellants. The United Kingdom was bound by Article 46 to abide by the judgment. Customary international law, which did form part of the English common law, required a state responsible for an internationally wrongful act to make restitution by restoring the status quo ante. (See Chapter II of Part Two of the draft articles on Responsibility of States for internationally wrongful acts, annexed to Resolution 56/83 adopted by the General Assembly on 12 December 2001.) Restitution would in this case require that the appellants' convictions be set aside and their criminal records expunged.
37. Mr Emmerson went on to say, more specifically, that it was the view of the Committee of Ministers of the Council of Europe, who were by Article 46.2 of the Convention entrusted with supervising the execution of judgments of the ECtHR, that compliance by a member State required that the injured party be restored to his previous position. He referred to Recommendation No R (2000) 2 of the Committee, adopted on 19 January 2000, which recited that-
38. How do these principles impact upon the decision of a court in an English criminal appeal? Mr Emmerson argued that the court was for two reasons obliged to provide the appellants with restitution. The first was that it was an organ of the State and therefore could not act contrary to the United Kingdom's obligation to give effect to the judgments. The second was that judicial comity required it to give effect to the decision of a competent tribunal in proceedings between the same parties, even if that tribunal derived its jurisdiction from an international treaty. Alternatively, Mr Emmerson said that the Crown, which was the organ of State entrusted with the treaty-making power and which had entered into the Convention on behalf of the United Kingdom, would be acting contrary to its obligations by supporting a conviction obtained at a trial which the ECtHR had held to be unfair.
39. My Lords, I cannot but admire the resourcefulness with which Mr Emmerson has painstakingly built this elaborate forensic structure. But I think that its foundations rest upon sand. In the end it comes to nothing more than an attempt to give direct domestic effect to an international treaty, contrary to the principle in the International Tin Council case  2 AC 418. The obligation to make restitution may, as Mr Emmerson says, be a developing or even established feature of customary international law. But it is in the present case ancillary to a treaty obligation. It is infringement of the treaty obligation to secure Convention rights to everyone within the jurisdiction that is said to give rise to the obligation to make restitution. Mr Emmerson himself described it as a secondary obligation in the sense used by Lord Diplock in Photo Production Ltd v Securicor Transport Ltd  AC 827, 848-849. But if there is no enforceable primary obligation, how can its breach give rise to an enforceable secondary obligation?
40. The argument that the courts are an organ of State and therefore obliged to give effect to the State's international obligations is in my opinion a fallacy. If the proposition were true, it would completely undermine the principle that the courts apply domestic law and not international treaties. There would be no reason to confine it to secondary obligations arising from breaches of the treaty. The truth of the matter is that, in the present context, to describe the courts as an organ of the State is significant only in international law. International law does not normally take account of the internal distribution of powers within a State. It is the duty of the State to comply with international law, whatever may be the organs which have the power to do so. And likewise, a treaty may be infringed by the actions of the Crown, Parliament or the courts. From the point of view of international law, it ordinarily does not matter. In domestic law, however, the position is very different. The domestic constitution is based upon the separation of powers. In domestic law, the courts are obliged to give effect to the law as enacted by Parliament. This obligation is entirely unaffected by international law.
41. It should be observed, however, that despite the normal principle of international law which takes no account of the domestic distribution of powers, Article 41 of the Convention, dealing with just satisfaction, contains what appears to be an exception. It says that "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." This suggests that if the internal law does not permit full restitution (e g by quashing a conviction) the Court may have to accept this position and devise some other way of affording just satisfaction. But I refrain from speculating upon how the ECtHR or the Committee of Ministers may interpret these provisions because they involve the interpretation and application of the Convention and this is not a matter within your Lordships' jurisdiction.
42. The argument that the Crown is in breach of obligation by supporting the conviction in my view fares no better. It is true that the decision to tender the statements in evidence was a matter for the prosecution. It did not have to do so and, as I have mentioned, the Attorney-General issued guidelines to prosecutors after the first ECtHR decision telling them to stop. It has been decided by the Court of Appeal that a conviction obtained after tendering evidence in breach of those guidelines was unsafe: see R v Faryab (unreported, 22 February 1999.) I reserve my position on the correctness of that decision. But there can be no doubt that the prosecution acted entirely lawfully when it tendered the evidence in 1990. When it comes to the appeal, the view of the Crown about the safety of the conviction is helpful but not determinative. It is for the Court to be satisfied that the conviction is unsafe.
43. In any case, if treaties form no part of domestic law, I do not see why an infringement of the treaty by the Crown should have more domestic significance than its infringement by Parliament or the courts. The fact that the Crown has the treaty-making power seems to me for this purpose irrelevant.
44. The argument based on judicial comity derives from the decision of Hobhouse J in Dallal v Bank Mellat  QB 441. In that case Mr Dallal had submitted the question of whether he was owed US$400,000 by the Bank Mellat to the decision of the Iran-United States Claims Tribunal, a body set up under an international treaty. The tribunal dismissed his claim on the merits. He then commenced proceedings in England for the same sum. Hobhouse J struck out his claim as an abuse of process under the principle in Henderson v Henderson (1843) 3 Hare 100. Comity required that the jurisdiction of the Tribunal be recognised notwithstanding that it was set up under an international treaty. But in that case the issue sought to be relitigated was the very issue which the parties had submitted to the Tribunal, namely whether, as a matter of private law, the Bank owed money to Mr Dallal. In the present case, the issue submitted to the ECtHR was whether, as a matter of international law, the appellants' trial was in breach of Article 6. The issue now before the House is whether, as a matter of domestic law, their convictions were unsafe.
45. Finally I return to the Human Rights Act 1998. As I have mentioned, the Act was not relied upon because it has been held not to be retrospective. But even if it had been retrospective, I do not think that it would have made any difference. The obligation under section 3(1) to interpret legislation in a way compatible with Convention rights "so far as it is possible to do so" would not have been engaged because it is simply not possible to interpret section 434(5) so as to allow the statements to be excluded. Possibly a declaration might have been made (notwithstanding the present tense in which the power is expressed in section 4(2)), that section 434(5), as it then stood, was incompatible with Convention rights.
46. Whether such a declaration would have been made is hard to say. It might have been thought that as Parliament had already deliberately decided to amend the law without retrospective effect, there was little point in revisiting the question. If this difficulty had been resolved in the appellants' favour, the next question would have been whether the court considered that it ought to follow the ECtHR interpretation of Article 6. Given that Parliament had accepted the ECtHR interpretation when it passed the 1999 Act, it seems to me very likely that the courts would also have done so. If Parliament considered that the law should be changed to comply with an international obligation, it would be strange for the courts to say that it had been unnecessary. Parliament and the courts should speak with one voice on such issues. What the position would have been if Parliament had not intervened and given guidance to the courts is more speculative. It is obviously highly desirable that there should be no divergence between domestic and ECtHR jurisprudence but section 2(1) says only that the courts must "take into account" the decisions of the ECtHR. If, for example, an English court considers that the ECtHR has misunderstood or been misinformed about some aspect of English law, it may wish to give a judgment which invites the ECtHR to reconsider the question: compare Z v United Kingdom (2001) 10 BHRC 384. There is room for dialogue on such matters. In the present case, the difficulties caused by the reasoning of the ECtHR have already been commented upon by my noble and learned friends Lord Steyn and Lord Hope of Craighead in Brown v Stott  2 WLR 817 at pp 843, 852-853 respectively. Some degree of misunderstanding is also evident in the concurring judgment of Judge Walsh (23 EHRR at p. 346) when he said:
In fact express statutory provisions of the same kind go back at least to section 17 of the Bankruptcy Act 1883 and judicial interpretations of other provisions as having the same effect go back even further. On the other hand, there are other provisions which allow the questions to be asked but exclude the answers and there are others which leave the matter to the discretion of the judge. They all form part of a carefully modulated attempt by English law to strike a balance between the protection of the individual and the need of society to deal adequately with white-collar crime.
47. For present purposes, however, it is sufficient to say that there are no grounds for holding the convictions to be unsafe and I would therefore dismiss the appeals.
48. These appeals raise the important issue whether the Court of Appeal, in deciding an appeal against a conviction, are bound to give effect to a judgment of the European Court of Human Rights ("the European Court") in favour of the appellant, when the issue arising in the appeal relates to the admission of evidence, and at the trial that issue was governed by a United Kingdom statute.
49. The appellants were convicted at the Central Criminal Court in 1990 of offences which alleged dishonest conduct during Guinness plc's takeover bid for the Distillers Company plc. Two successive appeals by the appellants against their convictions were heard by the Court of Appeal in 1991 and 1995 (the second appeal being pursuant to a reference back to the Court of Appeal by the Secretary of State) and the appeals were dismissed (save in respect of one count against Mr Saunders in the 1991 appeal and one count against Mr Lyons in the 1995 appeal).
50. At the trial of the appellants the Crown relied on answers which they were compelled to give pursuant to section 434 of the Companies Act 1985 to inspectors appointed by the Secretary of State under section 432(2) and section 442 of the 1985 Act to investigate the affairs of Guinness plc. The appellants were unable to contend that in exercise of his discretion under section 78(1) of the Police and Criminal Evidence Act 1984 to exclude evidence unfairly obtained, the trial judge should exclude the answers on the ground that the appellants had been compelled to incriminate themselves. It was not possible for the appellants to advance this argument because section 434(5) expressly provides that the answers given to questions put by inspectors are admissible in evidence: