Opinion
| Published date | 01 August 2001 |
| DOI | 10.1177/002201830106500402 |
| Date | 01 August 2001 |
| Author | Jonathan Caplan |
| Subject Matter | Article |
OPINION
The
Coming
of
Derivative
Use
Immunity?
Jonathan
Caplan
QC
It
is a cardinal feature of
most
criminal justice systems
that
the
prosecu-
tion
must
construct
its case against
an
accused by its
own
endeavours
and
without
the
conscripted assistance of
the
accused himself.
The
right
to silence
and
the
burden
of proof are, after all, different sides of
the
same
coin.
It
was in this context, therefore,
that
the
European
Court
of
Human
Rights recognised in Saunders vUnited
Kingdom
(1996) 23 EHRR
313
that
the
right to a fair trial
prohibited
the
prosecution
from
addudng
in
evidence
answers
compulsorily
obtained
from
the
accused
outside
of
the
criminal process by
statutory
procedures
(in Mr
Saunders'
case, this
was
his interviews
with
inspectors
during
an
investigation
under
the
companies
legislation).
Saunders v
United
Kingdom
established, therefore, a
'use
immunity'
against
the
use of
such
answers
in evidence.
But
logically is
the
next
step
a'derivative
use
immunity'
as well? In
other
words, given
that
the
answers
cannot
be used directly in evidence,
can
they
nevertheless
be
used in
the
course of
the
criminal investigation
to
help
construct
the
prosecution
case? For example, D tells
the
company
inspector
or
liqui-
dator,
under
threat
of
contempt
proceedings if he fails to answer,
that
he
authorised
asecret commission
to
be paid to himself
which
he deposited
in Y
Bank.
Whilst
that
answer
cannot
be used against
him,
can
the
prosecuting
authorities
take
advantage
of
that
compelled revelation
to
adduce
its
own
evidence from
the
bank
as to
the
transfer
and
deposit?
In a
recent
case before
the
House of Lords (R v
Hertfordshire
County
Council,
ex p.
Green
Environment Industries Ltd [2000] 2 AC 412), Lord
Cooke observed
that
if it
had
been
necessary to
determine
in
that
case
whether
Article 6( 1) of
the
European
Convention
on
Human
Rights
rendered
inadmissible derivative evidence
then
areference
to
the
Euro-
pean
Court
of Justice might well
have
been
necessary. As Lord Cooke
said:
'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'.
Lord Cooke was probably referring to a string of
authorities
in
the
United
States, Canada,
South
Africa
and
Australia. In
the
United States,
derivative use
immunity
is a recognised
concept
that
arises from
the
Fifth
Amendment
to
the
Constitution (see, for example,
Kastigar
vUS
406
US 441 (1972)). In
Canada
and
South
Africa,
each
of
which
also
have
constitutional
rights,
the
courts
have
declined to follow
the
abso-
lutist
approach
of
the
United States
on
this issue
and
have
opted
for a
limited form of derivative use
immunity
in
the
context
of
the
right to a
fair trial (see, for example, RJS vThe
Queen
(1995) 121 DLR 589
and
Ferreira
vLevin (1996) 1 BCLR 1 (CC) 1).
Meanwhile,
in
the
common
273
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