Environmental Crime and the Privilege against Self-Incrimination
| Author | Beverley Hopkins,Haydn Davies |
| Published date | 01 July 2000 |
| Date | 01 July 2000 |
| DOI | http://doi.org/10.1177/136571270000400302 |
Environmental crime and
the privilege against self-
incrimination
I
By Haydn Davies and Beverley
Hopkins
Universrty
of
Central England
Introduction
he development of environmental law over the past
25
years has seen
it change from an offshoot of tort and planning law into a legal
discipline in its
own
right. The major difference between
environmental law and most other legal disciplines is that it is concerned
with the protection of an entity that has no recognised legal rights.
For
this
reason, the formulation and enforcement of environmental law presents
unique challenges. How can legal systems and institutions, which were set up
essentially to serve human interests, be adapted to serve the interests of the
wider concept of 'the environment'? The environment is not a legal entity
and hence can have no 'interests' in the legal sense. However, the existence of
humankind, and the ability of humans to protect their interests, relies upon
the integrity of the environment. Hence human rights and the emergent
'rights of the environment' are intimately linked. The discussion which
follows looks at the relationship between individual human rights and the
collective
interest in a healthy environment and asks whether the time has
come to change the balance in favour of the latter. In an attempt to answer
this question we have selected a specific human right'-the privilege against
self-incrimination-for in-depth scrutiny. This privilege has particular
relevance in the context of environmental crime because the regulators in
the United Kingdom have been granted extensive powers to gather
information (in a variety of forms) to enable them to pursue their statutory
functions. The exercise of these powers has the potential to override the
exercise of the privilege.
1
In fact,
it
could be said to be only part
of
the wider human right to
a
fair trial as incorporated in
Art.
6
of the European Convention on Human Rights.
177
r
ME
i"ATlON4l
JOW
OF
EMOENCE
&
PROOF
ENVIRONMENTAL CRIME AND
THE
PRIVILEGE AGAINST SELF-INCRIMINATION
The origins of the common law right not to incriminate oneself are obscure
but may date back to mediaeval law2 and the Latin maxim
nerno tenetur se
ipsurn prodere
(no one can be compelled to betray him~elf).~.~
To
some extent
the origin
of
the privilege has less importance as a matter of legal history
than as a means
of
defining the scope and therefore the applicability
of
the
privilege today. However, it is obvious from academic writing and from case
law that the scope
of
the privilege means different things to different people.
The main point
of
disagreement centres around whether the privilege
extends only to oral evidence obtained in custody
or
to any evidence collected
for
the purposes
of
criminal prosecution. Sharpe implies that the privilege is
most concerned with self-incrimination by means of
oral
testimony.’
As
will
be seen below, that part of environmental law which deals with the collection
of evidence for use in criminal proceedings seems to have been drafted with
the same view of the privilege in mind. This may be due, in part, to the
widespread tendency to equate the privilege with the right to silence as was
amply demonstrated in the wake
of
the Criminal Justice and Public Order Act
1994
and the erosion
of
the right to silence imposed by that Act! However, the
privilege is viewed by Dennis as having a much wider applicability than to
oral evidence alone:
.
.
.
neither in theory nor in current doctrine is its application
restricted to the issue of whether persons can be compelled to
answer questions. The
. .
.
issues are the justification and limits
of
the principle that no one should be obliged to produce
evidence
against themselves.’
Dennis is quick to point out, however. that English law is ‘much narrower
than any such abstract principle’ and quotes Sir Nicolas Brownewilkinson in
Tate Access moors
v
Boswell’
in suggesting that the rule of primary application
in criminal and civil proceedings is that ‘a man is not bound to provide
evidence against himself by being forced to answer questions
or
produce
documents’. As discussed below, recent environmental legislation and case
2
I.
Dennis. ‘Instrumental Protection, Human Right
or
Functional Necessity? Reassessing the
3
S.
Sharpe. ‘The Privilege Against Self-Incrimination: Do We Need a Preservation Order?’ (1998)
4 See also the summary by Judge Walsh in
Saunders
v
United Kingdom
(1997) 23
EHRR
313.
5
Sharpe. above n.
3
at 502.
6
Criminal Justice and Public Order Act 1994.
s.
25(2).
7
See Dennis above n. 2 at 345. See also
G.
Stessens. ‘The Obligation to Produce Documents Versus
the Privilege Against Self-Incrimination: Human Rights Protection Extended
Too
Far?’ (1997) 22
European
Law Review
HRC/45.
Privilege Against Self-Incrimination’ (1995) 54(2)
Cambridge
Law
Journal
342.
27(4)
AngbAmerican
Law Review
494.
8
I19911 Ch 512.
178
THE INTERNATIONAL JOURNAL
OF
EWDENCE
&
PROOF
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