R v Lyons ; R v Parnes ; R v Ronson ; R v Saunders (No 3)

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLORD BINGHAM OF CORNHILL,LORD HOFFMANN,LORD HUTTON,LORD HOBHOUSE OF WOODBOROUGH,LORD MILLETT
Judgment Date14 November 2002
Neutral Citation[2002] UKHL 44
Date14 November 2002

[2002] UKHL 44

HOUSE OF LORDS

Lord Bingham of Cornhill

Lord Hoffmann

Lord Hutton

Lord Hobhouse of Woodborough

Lord Millett

Regina
and
Lyons

And Others

(Appellants)

(On Appeal from the Court of Appeal (Criminal Division)

LORD BINGHAM OF CORNHILL

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...

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