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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Attorney General's Reference No 7 of 2000 V [2001] EWCA Crim 888 (29 March 2001) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2001/888.html Cite as: [2001] WLR 1879, [2001] 2 CAR 19, [2001] EWCA Crim 888, [2001] 2 Cr App R 19, [2001] BPIR 953, [2001] 2 Cr App Rep 19, [2001] 1 WLR 1879, [2001] HRLR 41, [2001] Crim LR 736

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2
		29th March 2001

1. THE VICE PRESIDENT: There is before the Court a point of law referred for the Court's consideration and opinion under section 36 of the Criminal Justice Act 1972. The point, which requires expeditious resolution because of the number of cases dependent on it, is this:

"Does the use by the Crown in the prosecution of a bankrupt for an offence under Chapter VI of Part IX of the Insolvency Act 1986 (the 1986 Act) of documents which (a) were delivered up to the Official Receiver (OR) under compulsion (pursuant to the duty imposed on the bankrupt by section 291 of the 1986 Act, which is backed by the contempt sanction in section 291(6) of the 1986 Act) and (b) do not contain statements made by the bankrupt under compulsion violate the bankrupt's rights under Article 6 of the European Convention on Human Rights (the Convention)?"

2. In order to understand that question it is, first of all, necessary, briefly, to summarise the material provisions of the Insolvency Act 1986. By section 264, creditors or an individual himself can present a bankruptcy petition. By section 283, the bankrupt's estate is defined. By section 287, there is provision for the appointment of an official receiver, following the presentation of the petition, but prior to the appointment of a trustee in bankruptcy. By section 289, it is the duty of the official receiver to investigate the conduct and affairs of the bankrupt.
3. Section 291 provides as follows:

"Where a bankruptcy order has been made, the bankrupt is under a duty-

(a) to deliver possession of his estate to the official receiver, and

(b) to deliver up to the official receiver all books, papers and other records of which he has possession or control and which relate to his estate and affairs (including any which would be privileged from disclosure in any proceedings)."

4. It follows that the official receiver has to ascertain what is in the estate, and to investigate the bankrupt's affairs to see what caused the bankruptcy. Section 291(6) provides a sanction against a bankrupt who fails to comply with his obligations under section 291, namely, that he is in contempt of court, and is punishable with up to 2 years' imprisonment.
5. Section 333 imposes a similar duty of co-operation, vis a vis the trustee in bankruptcy.
6. Chapter VI of the Act indicates a number of offences, the penalty for which, by virtue of section 350(6), is liability to imprisonment, or a fine. Those who do not comply with their duty to co-operate and those who deal with matters inappropriately preceding the bankruptcy may commit an offence. Section 362 identifies one such offence, in these terms:

"(1) The bankrupt is guilty of an offence if he has-

(a) in the 2 years before petition, materially contributed to, or increased the extent of, his insolvency by gambling or by rash and hazardous speculations..."

7. The penalty for that offence, by virtue of schedule 10 of the Act, is, again, 2 years, or a fine, or both, or, in certain circumstances, a 7 year period of imprisonment for a failure to co-operate.
8. Section 433 of the Act provides:

"In any proceedings (whether or not under this Act)-

(a) a statement of affairs prepared... and

(b) any other statement made in pursuance of a requirement imposed by or under any such provision or by or under rules made under this Act, may be used in evidence against any person making or concurring in making the statement."

9. The regime under the Insolvency Act, Mr Eadie on behalf of the Attorney-General submits, is designed, among other things, to discover how the bankruptcy came about. Therefore, inroads into the bankrupt's rights in relation to self-incrimination, in particular, are a price to be paid for the benefits which may accrue to the bankrupt, by virtue of the bankruptcy regime. So, submits Mr Eadie, section 291 overrides the general principle against self-incrimination.
10. A consequence of the decision of the European Court of Human Right in Saunders v The United Kingdom (1996) 23 EHRR 313, to which later we shall return, is that Parliament has amended the relevant legislation, by section 59 and schedule 3 paragraph 7 of the Youth Justice and Criminal Evidence Act 1999. The amendment is in these terms. Section 433 of the Insolvency Act has an additional subsection inserted in it:

"(2) However, in criminal proceedings in which any such person is charged with an offence, to which this subsection applies, (a) no evidence relating to the statement may be adduced and (b) no question relating to it may be asked by or behalf of the prosecution unless evidence relating to it is adduced, or a question relating to it is asked, in the proceedings by or on behalf of that person."

11. Mr Eadie submits that there, in the clearest terms, Parliament has legislated, in relation to statements made of a self-incriminating nature and the impropriety of using them in criminal proceedings. But, no similar provision has been made by Parliament in relation to documents which are revealed as a consequence of statements made. That, submits Mr Eadie, is a reflection of the distinction made by the European Court in Saunders between statements, on the one hand, and pre-existing documents on the other.
12. In that context, we turn, briefly, to the material facts in the present case. The defendant was made bankrupt on 18th August 1997, with an estimated total deficiency of £7.6 million, most of which consisted of sums owed to his former employer. An action was brought against him in the Chancery Division and Neuberger J gave judgment against him in that action. It was because of that judgment that the defendant filed his bankruptcy petition.
13. It is pertinent to note that, in the course of his judgment, Neuberger J made a number of findings including the fact that major gambling had been undertaken by the defendant.
14. The charge which was laid against the defendant was one of behaving contrary to section 362(l)(a) and section 350(6) which we have already rehearsed. The particulars of the allegation were that, in the 2 year period prior to his bankruptcy, he had materially contributed to, or increased the extent of, his insolvency by gambling.
15. In June 2000 the defendant applied to the Crown Court judge for a stay of the proceedings as an abuse of process, or for a ruling that documents delivered up by him to the official receiver under compulsion, should be ruled inadmissible or be excluded under section 78 of the Police and Criminal Evidence Act. The basis of that submission, in relation to the exclusion of the documents, was that, otherwise, the trial of the defendant would be unfair and in breach of the defendant's rights under Article 6 of the European Convention of Human Rights. The judge, at the invitation of the parties, dealt with the matter on the basis that the Human Rights Act was in force, although at that date it was not. The trial judge ruled that the documents obtained by the Official Receiver were inadmissible on the basis that their admission would give rise to a violation of Article 6. He further ruled that their admission would not be fair and he excluded them from admission under section 78 of the Police and Criminal Evidence Act. At that stage, at the invitation of prosecuting counsel, bearing in mind the possibility of a reference under section 36, he directed that a verdict of not guilty be entered.
16. The documents, in relation to which the judge ruled that their admissibility would give rise to a breach of Article 6 included cheque stubs, bank statements, returned cheques, a betting file headed "Ladbroke's betting" and some loose gambling statements. The gambling documents included a computer printout, produced by Ladbroke's in relation to the defendant's gambling, and a manuscript schedule of gambling by I Morris, a bookmaker, into neither of which documents the defendant had had any input. There were other documents, such as cheque stubs and cheques drawn on Jersey bank accounts into which the defendant had had an input.
17. The existence of those documents came to light in this way. On 2nd September 1997, the defendant had completed form B40.01, a preliminary questionnaire in his bankruptcy. The form made it clear that he was required to answer the questions posed and to do so truthfully. Question 19.1 was: "Have you lost money by betting, gambling or similar activities in the last 2 years?" To which the defendant answered "Yes". On 29th October 1997, following notices of the requirement to deliver up documents relating to his estate and affairs, as contained in the statutory powers to which we have earlier referred, the defendant delivered to the official receiver some six boxes of documents, including those to which we have referred. Many, if not all of those documents, were of a nature relating to the defendant's estate and affairs and, of course, included documents specifically relating to his gambling activities. Those documents formed the basis of the prosecution case against him, in relation to the charge under sections 362 and 350 of the Insolvency Act.
18. It is also pertinent to note that, in addition to the amendment of section 433 by the 1999 Act, the Attorney-General's guidelines also now reflect the ECHR decision in Saunders
19. The submission which Mr Eadie makes, by reference to a number of authorities is, in essence, this. First, the insolvency regime provided by Parliament makes it plain that it is Parliament's intention that the privilege against self-incrimination should not extend to pre-existing documents as distinct from statements which may lead to the discovery of such documents.
20. Secondly, at English common-law, the touchstone of admissibility of evidence is relevance. The authorities in this country show that evidence, even when illegally obtained, can, as a matter of law, be admissible, subject to a trial judge's discretion to exclude it, under section 78 of the Police and Criminal Evidence Act.
21. Mr Eadie points out that the European Court of Human Rights in Khan v The United Kingdom (judgment 12th May 2000) did not conclude that there had been any breach of Article 6, (although there had been a breach of Article 8, in relation to the defendant's right of privacy), by reason of a tape-recording, which provided very strong evidence against the defendant, being made in circumstances in which there was no risk of it being unreliable.
22. Mr Eadie further submits that the decisions of the European Court of Human Rights have shown some movement in principle when considering the privilege against self-incrimination. The more recent authorities, in particular, Saunders and L v The United Kingdom [2000] FLR 322 show the way in which, in preference to the earlier decision in Funke__v__France (1993) 16 EHRR 297, the privilege against self-incrimination should be regarded.
23. Finally, Mr Eadie submits that, if there is an irresoluble conflict between Funke, on the one hand, and Saunders and L, on the other, this Court, while taking into account, as it must, in accordance with section 2(1) of the Human Rights Act 1988, the European jurisprudence, can proceed in accordance with the English legislation and common-law.
24. Mr Eadie submits that Commonwealth authorities, considered by the European Court are consistent with an interpretation of the Strasbourg jurisprudence in accordance with the approach in Saunders
25. In order to examine those submissions, it is necessary to refer to a number of authorities. First, in R v Director of Serious Fraud Office Ex parte Smith [1993] AC 1, Lord Mustill, in a speech with which all the other members of their Lordships' House agreed, considered the right of silence in a passage beginning at page 30. He referred to the concept as denoting no single right, but a disparate group of immunities differing in nature, origin, incidence and importance, and as to the extent to which they had been encroached upon by statute. He identified six immunities among them. First, a general immunity from being compelled to answer questions posed by other persons. Secondly, a general immunity from being compelled to answer questions which may incriminate. Thirdly, a specific immunity for those under suspicion of criminal responsibility from being compelled to answer questions, when interviewed by police officers, or others in similar positions of authority. Fourthly, a specific immunity of persons being tried against being compelled to give evidence. Fifthly, a specific immunity for those charged from having questions addressed to them by police officers or others. Sixthly, a specific immunity, in some cases, for persons being tried, not to have adverse comment made on their failure to answer questions before trial, or to give evidence at the trial.
26. Lord Mustill went on to identify a variety of motives underlying these different immunities. First, that "one person should so far as possible be entitled to tell another person to mind his own business" (31D). Secondly, "there is a long history of reaction against abuses of judicial interrogation" (31E). He then referred to the instinct that it is contrary to fair play to put the accused in a position where he is exposed to punishment, whatever he does (32B). Finally, he referred to the desire to minimise the risk that an accused might be convicted on the strength of an untrue extrajudicial confession (32B). That motive, as will emerge, is of significance in the European jurisprudence. At page 40C of his speech, Lord Mustill referred to "the strong presumption against interpreting a statute as taking away the right of silence."
27. In AT &. Istel Ltd v Tully [1993] AC 45, Lord Templeman, at page 53B said this, by reference to the privilege of self-incrimination:

"...in my opinion, the privilege can only be justified on two grounds, first that it discourages the ill-treatment of a suspect and secondly that it discourages the production of dubious confessions."

28. In R v Hertfordshire County Council ex parte Green Environmental Industries Ltd [2000] 2 AC 412, Lord Hoffmann said this, at page 419C, when referring to the principles conferring a right to silence or privilege against self-incrimination and the prohibition on questioning subjects without caution or after charge:

"These latter prohibitions are prophylactic rules designed to inhibit abuse of power by investigatory authorities and to preserve the fairness of the trial by preventing the eliciting of confessions which may have doubtful probative value..."

29. He referred to the passage in the speech of Lord Templeman which we have quoted. At page 421G Lord Hoffmann said this:

"English law does not regard the use of evidence obtained in consequence of an involuntary statement in the same light as the admission of the statement itself: see Lam Chi-ming v the Queen [1991] 2 AC 212..."

30. At page 424G, Lord Hoffmann commented upon Funke v France to which later we shall come. He said this, by reference to paragraph 44 of the Court's judgment:

"I am bound to say that there are obscurities in this reasoning. What were the criminal proceedings in which Mr Funke was deprived of the right to a fair trial? They could not have been the prosecution for the offences suspected by the customs officers, since that was never brought. The only proceedings against him were for failure to produce his bank statements. In those proceedings, however, he was not obliged to incriminate himself. There was no need, because his guilt under French law was established by his failure to produce the bank statements. Perhaps the case is best regarded as an example of Lord Mustill's principle that without some good reason everyone has the right to tell other people, even customs officers, to mind their own business. It is however clear that the court in the Saunders case did not regard this case as casting doubt upon the clear distinction which it drew between extrajudicial inquiries and the use of the material thereby obtained in a subsequent criminal prosecution."

31. Mr Eadie relies upon that passage in Lord Hoffmann's speech by way of pre-emptive strike at the decision in Funke and in support of the approach adopted in Saunders.
32. To those European authorities, we now turn. Mr Eadie submits that it is not easy to reconcile Funke with Saunders He submits that the Saunders approach is to be referred. What was said in paragraph 44 of the Court's judgment in Funke v France is this:

"The Court notes that the customs secured Mr Funke's conviction in order to obtain certain documents which they believed must exist, although they were not certain of the fact. Being unable or unwilling to procure them by some other means, they attempted to compel the applicant himself to provide the evidence of offences he had allegedly committed. The special features of customs law, cannot justify such an infringement of the right of anyone 'charged with a criminal offence,' within the autonomous meaning of this expression in Article 6, to remain silent and not to contribute to incriminating itself. There has accordingly been a breach of Article 6(1)."

33. Upon that paragraph Lord Hoffmann made the comment which we have recently rehearsed.
34. In Saunders it is paragraphs 68 and 69 which are of particular pertinence. The judgment of the majority of the court is in these terms:

"68. The Court recalls that, although not specifically mentioned in Article 6 of the Convention, the right to silence and the right not to incriminate oneself, are generally recognised international standards which lie at the heart of the notion of a fair procedure under Article 6. Their rationale lies, inter alia in the protection of the accused against improper compulsion by the authorities thereby contributing to the avoidance of miscarriages of justice and to the fulfilment of the aims of Article 6. The right not to incriminate oneself, in particular, presupposes that the prosecution in a criminal case seek to prove their case against the accused without resort to evidence obtained through methods of coercion or oppression in defiance of the will of the accused. In this sense the right is closely linked to the presumption of innocence contained in Article 6(2) of the Convention.

69. The right not to incriminate oneself is primarily concerned, however, with respecting the will of an accused person to remain silent. As commonly understood in the legal systems of the Contracting Parties to the Convention and elsewhere, it does not extend to the use in criminal proceedings of material which may be obtained from the accused through the use of compulsory powers but which has an existence independent of the will of the suspect such as, inter alia documents acquired pursuant to a warrant, breath, blood and urine samples and bodily tissue for the purposes of DNA testing."

35. In his dissenting judgment, Judge Martens at paragraph 12, on page 354 of the report, said this:

"It is, however, at least open to doubt, whether the Court in paragraph 69 of its present judgment has not-implicitly, without saying so openly, let alone without adducing cogent reasons for doing so- overruled FUNKE and has essentially converted to the more restricted doctrine adopted inter alia by the Court of Justice."

36. In L v The United Kingdom [2000] FLR 322, at page 331D, the unanimous judgment of the Court is in these terms:

"As held in Saunders v UK the right not to incriminate oneself is primarily concerned with respecting the will of the accused person to remain silent and does not extend to the use in criminal proceedings of material which may be obtained from the accused through the use of compulsory powers and which has an existence independent of the will of the accused (eg documents, breath, blood, urine and tissue samples)."

37. The European Court of Justice in Saunders referred in the course of judgment to Ferreira v Levin 1996 1 SA 984. The judgment of the South African constitutional court in that case relied on extensive quotations from the majority of judgments of the Supreme Court of Canada, in Thompson Newspapers Ltd v Director of Investigation & Research 54 CCC 417. Justice La Forest, who was of the majority in that case, at page 508g, said this:

"There are serious grounds on which objection can be raised to an absolute rule that testimonial immunity must always extend to evidence derive from compelled testimony. While allowing the Crown to use such evidence in criminal proceedings may in a formal sense be equivalent to permitting direct reliance on the compelled testimony itself, there is an important difference between the type of prejudice that will be suffered in the two cases. It is only when the testimony itself has to be relied on that the accused can be said to have been forced to actually create self-incriminatory evidence in his or her own trial. The compelled testimony is evidence that simply would not have existed independently of the exercise of the power to compel it; it is in this sense evidence which could only have been obtained only from the accused.

By contrast, evidence derived from compelled testimony is, by definition evidence that existed independently of the compelled testimony. This follows logically from that fact that it was evidence which was found, identified or understood as a result of the 'clues' provided by the compelled testimony. Although such evidence may have gone undetected or unappreciated in the absence of the compelled clues, going undetected or unappreciated is not the same thing as nonexistence. The mere fact that the derivative evidence existed independently of the compelled testimony means that it could have been found by some other means, however low the probability of such discovery may have been."

38. Then just below e:

"...the difference between evidence which the accused has been forced to create (the compelled testimony), and the independently existing evidence he or she has been forced to assist in locating, identifying or explaining (evidence derived from compelled testimony), will be readily discernible. I believe its significance will be equally apparent.

The fact that derivative evidence exists independently of the compelled testimony means, as I have explained, that it could also have been discovered independently of any reliance on the compelled testimony. It also means that its quality as evidence does not depend on its past connection with the compelled testimony. Its relevance to the issues with which the subsequent trial is concerned, as well as the weight it is accorded by the trier of fact, are matters that can be determined independently of any consideration of its connection with the testimony of the accused."

39. At page 510c he said:

"What prejudice can an accused be said to suffer from being forced to confront evidence 'derived' from his or her compelled testimony, if that accused would have had to confront it even if the power to compel testimony had not been used against him or her? I do not think it can be said that the use of such evidence would be equivalent to forcing the accused to speak against herself or himself; once the derivative evidence is found or identified, its relevance and probative weight speak for themselves. The fact that such evidence was found through the evidence of the accused in no way strengthens the bearing that it, taken by itself, can have upon the questions before the trier of fact."

40. At page 518d Justice La Forest said:

"In my view, derivative evidence that could not have been found or appreciated except as a result of the compelled testimony under the Act should in the exercise of the trial judge's discretion be excluded since its admission would violate the principles of fundamental justice. As will be evident from what I have stated earlier, I do not think such exclusion should take place if the evidence would otherwise have been found and its relevance understood. There is nothing unfair in admitting relevant evidence of this kind..."

41. Reference has also been made to the decision of the Privy Council, now reported as Brown v Stott [2001] 2 WLR 817.
42. Mr Eadie relies on a passage in the judgment of Lord Bingham of Cornhill, at 837E, where he referred to the regulatory regime to which the driver of a motor vehicle subjects himself. Mr Eadie draws an analogy with the regulatory regime to which a bankrupt subjects himself.
43. On behalf of the acquitted person (as he now is) Mr Perry submits that the Insolvency Act has three objectives. First, it enables a bankrupt's affairs and dealings to be investigated by the official receiver, under court supervision. Secondly, it provides a statutory machinery for the collection and distribution of any assets that a bankrupt has. Thirdly, it makes provision for the rehabilitation of the bankrupt by what Mr Eadie earlier referred to as "absolution" after 3 or 5 years, as the case may be.
44. Mr Perry conceded that there is a public interest in an official receiver properly investigating a bankrupt's affairs. He conceded that Parliament has encroached on the privilege of self-incrimination and, further, has not, in the Insolvency Act, either originally or in its amended form, addressed the question of documents disclosed as a result of a compelled statement.
45. But, submits Mr Perry, there is nothing incompatible with the public interest in the proper investigation of a bankrupt's affairs that material obtained under compulsion should give rise to a breach of Article 6. He submits that it is illogical to distinguish between words and documents, particularly in the present case where the defendant was asked to give his account of events, at the same time as he was asked, in the questionnaire, to reveal the existence of documents.
46. So far as the common-law is concerned, Mr Perry submits, rightly, that the privilege against self-incrimination has existed for several centuries but that Parliament has made inroads upon it, in the public interest and, in turn, the courts have sought to ensure that those inroads are kept within reasonable bounds. In that regard, he invited attention to a passage in the judgment of Hobhouse J, in Prudential Assurance Co Ltd v Fountain Page Ltd [1991] 1 WLR 756 at pages 774G-775A, and to passages in the judgments in Marcel v the Commissioner of Police for the Metropolis [1992] Ch 225, in particular by Sir Nicholas Browne-Wilkinson, the Vice-Chancellor, at page 234G with which Dillon LJ at 255F agreed. Mr Perry also invited attention to the judgment of Sir Donald Nicholls Vice-Chancellor in Morris v Director of the Serious Fraud Office [1993] Ch 372 at page 380F-H. We do not derive from these three authorities assistance in resolving the question in the present case, because the questions there arising were very different.
47. So far as the European jurisprudence is concerned, Mr Perry submits that a fair trial, under Article 6, embraces two immunities: one, not to answer questions; the other not to provide evidence against oneself. The rationale is that it is unethical to compel someone to collaborate in bringing about his own doom. Mr Perry conceded that there is, as he put it, "a difficulty with the reasoning in some of the cases". But, he submits, rightly, that there is nowhere in the European jurisprudence any express statement that Funke was wrongly decided, or that Saunders was to be preferred.
48. Mr Perry, in that regard, invited attention to a further decision of the European Court, in Heaney v Ireland (judgment 21st December 2000), where the fourth section of the European Court of Human Rights, sitting in a chamber of seven, said nothing to suggest that Funke is no longer to be regarded as correct, although the Court's judgment also referred to Saunders, at paragraph 57.
49. Mr Perry submits that the principles which emerge from the Strasbourg jurisprudence are five in number. First, the privilege against self-incrimination is implied by Article 6(1) and is closely linked to the presumption of innocence in Article 6(2). Secondly, the privilege is one of the basic principles of a fair procedure as Saunders shows, but it is not an unqualified right as Heaney shows. Thirdly, the privilege should not be construed in a theoretical way, but in a way which guarantees rights which are practical and effective, as appears in paragraph 45 of the judgment in Heaney Fourthly, the privilege applies not only when an individual refuses to provide evidence, as was the case in Funke and Heaney but also when he acquiesces and provides the evidence requested, as in Saunders and IJL (European Court of Human Rights judgment of 19th September 2000). Fifthly, the privilege may apply to statements, as in Saunders, and to pre-existing documents, as in Funke
50. Mr Perry submits that section 78 of Police and Criminal Evidence Act has been recognised as an important safeguard, as is illustrated by Rank of England v Riley [1992] Ch 475, in particular: see the judgment of Ralph Gibson LJ at pages 485F-486B and a similar recognition of the significance of section 78 is to be found in the speech of Lord Hoffmann in ex parte Green at page 422H to 423A.
51. As to the Commonwealth authorities, Mr Perry did not accept that there was any inconsistency between the Funke approach and the Canadian and South African authorities to which we have referred or the Australian authority of Sorby v The Commonwealth of Austria (1983) 57 ALJR 248.
52. The approach of the Canadian Supreme Court in Thompson and the South African Constitutional Court in Ferreira are, he submits, consistent with Saunders in that, in those cases, in the one under the Canadian charter and in the other under the constitution, a challenge was made to the giving of evidence at a regulatory enquiry. So far as Thompson is concerned, Mr Perry also invited attention to the judgment of Mrs Justice L'Heureux Dube at page 536. He also points out that, in the present case, the offence charged was one which was not committed until the bankruptcy which crystallized the criminality of the activity, whereas in Thompson, it was crucial to the reasoning of the majority that the regulatory offences were not truly criminal. That is a matter which is referred to by Justice La Forest at page 478f-g. Mr Perry also referred to certain passages in the dissenting judgment of Wilson J.
53. So far as Ferreira is concerned, Mr Perry drew attention to passages in the judgment which emphasise the power of the trial judge to ensure fairness even in relation to material which is otherwise legally admissible.
54. In relation to the Privy Council's decision in Brown v Stott, Mr Perry submits that there are three matters which are crucial to the reasoning of Lord Bingham. First, section 172 of the Road Traffic Act 1988 provides for a single simple question, whereas, in the present case, there were detailed questions of the bankrupt. Secondly, the High Court of Justiciary had, in Lord Bingham's view, placed too great an emphasis on the distinction between answers and samples. Thirdly, drivers were in a special category because of the risk of death from their activities. Those matters, Mr Perry submits serve to distinguish the Privy Council's decision in Brown from the circumstances in the present case, so far as reliance is placed on the difference between documents and statements and that distinction arising in the context of bankruptcy, rather than in the very different context of driving motorcars.
55. Mr Perry also referred to Lord Steyn's emphasis at 843C on the narrowness of the exemption which was being propounded and the passage in Lord Hope's speech, at 852B, in relation to the need for proportionality between the inroad made on the privilege against self-incrimination and the public interest being served.
56. Mr Perry, finally, submits that the following conclusions ought to be drawn by this Court. First, the defendant was required under pain of penalty to answer questions and provide documentation. Secondly, the intention in obtaining the documentation was to use it for a criminal prosecution. Thirdly, the defendant was unaware that it might subsequently be used against him as evidence of the commission of an offence with which he was ultimately charged. Fourthly, the documentation was properly obtained for the official receiver's purposes in investigating the bankruptcy. But, fifthly, its subsequent use in criminal proceedings gives rise to a breach of Article 6. Finally, the prosecuting authority should have obtained the evidence from the defendant under caution or, alternatively, from a source independent of D.
57. In our judgment, the answer to the question posed by the Attorney-General is 'No'. We say that for a number of reasons. First, there is no doubt and indeed it is not disputed before this Court that the privilege against self-incrimination is not absolute and, in English law, Parliament has, for a variety of reasons, in a whole range of different statutory contexts, made inroads upon that privilege.
58. So far as the English courts are concerned, there is, as it seems to us, no doubt that the documents to which we have referred would be regarded as admissible as a matter of law, subject, of course, to the trial judge's discretion to exclude, under section 78 of the Police and Criminal Evidence Act.
59. The question which next arises is whether, in deference to the European jurisprudence, this Court should give a different answer to that which the English courts and the will of Parliament otherwise suggest. It seems to us that the distinction made in paragraphs 68 and 69 of the European Court's judgment in Saunders, between statements made and other material independent of the making of a statement, is not only one to which we should have regard, but is one which, as it seems to us, is jurisprudentially sound. We say this for the reasons advanced in the judgment of Justice La Forest in the Thompson case, which, via reference to the South African constitutional court's decision in Ferreira was before the European Court in Saunders In our judgment, there is nothing in any of the speeches in Brown v Stott which contradicts this conclusion. The Privy council were seeking to limit the scope of the privilege against self-incriminating statements and pre-existing documents revealed by compelled statements were outwith their consideration.
60. If and in so far as there is a difference of view in the European Court of Justice between Funke on the one hand, and Saunders and L on the other, the approach in Saunders and L commends itself to this Court. It is, as it seems to us, a matter not merely of interest but of significance that Judge Martens, dissenting in the Saunders case, was of the view that the majority decision in that case was diverting fundamentally from the previous approach of the court in Funke
61. In so far as Funke has been re-affirmed in Heaney that does not divert us from the conclusion which we have reached, that the Saunders approach is to be preferred.
62. Alternatively, if the Strasbourg jurisprudence simply does not give a clear answer to the question which is here posed, that entitles this Court to follow the English authorities to which we have referred, in particular, those in the House of Lords.
63. MR PERRY: We do not make any application to take this matter further under section 36, though, of course, that is always subject to your Lordships' decision.
64. In relation to costs, it is not necessary for us to make any application. The Registrar, when we were instructed, made it clear that the costs would be covered from central funds.
65. THE VICE PRESIDENT: So be it. Thank you both very much for your help.