FOURTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 6563/03
by William SHANNON
against the United Kingdom
The European Court of Human Rights (Fourth Section), sitting on 23 November 2004 as a Chamber composed of:
MrJ. Casadevall, President,
SirNicolas Bratza,
MrM. Pellonpää,
MrR. Maruste,
MrS. Pavlovschi,
MrJ. Borrego Borrego,
MrJ. Šikuta, judges,
and Mr M. O'Boyle, Section Registrar,
Having regard to the above application lodged on 5 February 2003,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr William Shannon, is an Irish citizen who was born in 1948 and lives in Belfast. He is represented before the Court by Mr B. McGrory, a solicitor practising in Belfast. The respondent Government are represented by Mr John Grainger, of the Foreign and Commonwealth Office, London.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant was the client of the Irish Republican Felons Club[1], a registered social club operating on the Falls Road, Belfast. In May 1997, the RUC carried out a search of the premises and removed many documents.
The applicant was subsequently required to attend for interview with a financial investigator appointed under the Proceeds of Crime (Northern Ireland) Order 1996. He did so on 27 January 1998 and answered all questions put to him.
On 16 April 1998, the applicant was charged by the police with false accounting and conspiracy to defraud.
On 2 June 1998, a further notice was served on the applicant under the 1996 Order, requiring his attendance before a financial investigator at a police station on 11 June 1998. The maximum penalty for failure to attend an interview was six months' imprisonment or a fine not exceeding GBP 5,000. The notice, which was dated 1 June, stated that the investigation was into whether any person had benefited from theft or false accounting, contributing to the resources of a proscribed organisation or from contraventions of betting regulations. The applicant was required to attend at Woodbourne Police Station on 26 June 1998.
On 9 June 1998, the applicant's solicitors sent a letter seeking a written guarantee that no information or statements obtained during the interview would be used in criminal proceedings.
On 16 June 1998, a further notice, dated 16 June, was served on the applicant, again requiring him to attend the interview on 26 June 1998. The notice was served with a letter in which the investigators confirmed that they were aware of the criminal proceedings pending against the applicant. They set out the safeguards in paragraph 6 of Schedule 2 to the Order, and stated that the applicant therefore had the guarantees he sought. They added that paragraph 7 of Schedule 2 restricted the disclosure of information obtained by a financial investigator, and added that “this does not prevent the answers or information being used to further the investigation”.
On 22 June 1998, the applicant's solicitor sent a letter to the financial investigators indicating that the applicant's replies could become admissible evidence at a trial and suggesting that the purpose of the interview was to compel him to disclose his defence. He added that the applicant had been advised not to attend interview unless a satisfactory response to the letter was received.
On 23 June 1998, the applicant's solicitor was informed by letter that the reason for the interview was not to force the applicant to disclose his defence but that a number of matters from the earlier interview required clarification and additional matters had also arisen.
On a request by the investigators, on 25 June the applicant's representatives informed the investigators that the applicant would not attend the interview. The interview did not take place.
On 14 September 1998, a summons charged the applicant with the offence of failing without reasonable excuse to comply with the financial investigator's requirement to answer questions or otherwise furnish information, contrary to paragraph 5(1) of Schedule 1 to the 1996 Order. On 25 February 1999, the applicant was convicted of this offence in the magistrates' court and fined the sum of GBP 200.
On 5 July 2002, the Belfast County Court allowed the applicant's appeal against conviction, finding that the prosecution had not proved the absence of a reasonable excuse. The judge noted that the Northern Ireland Court of Appeal had dealt with a similar case (Clinton v. Bradley [2000] NI 196) which related to the same legislation and the same investigation. The Northern Ireland Court of Appeal had held that as Parliament had put in place certain express limitations on the use of information obtained by investigators, it could not have intended that the person concerned could put forward the risk of self-incrimination as a “reasonable excuse”. In Clinton v. Bradley, however, the accused had refused to answer questions at an interview, and he had not been interviewed by the police, or charged with any offence.
The judge further noted that one of the grounds on which the information obtained by investigators could be used in criminal proceedings was where evidence inconsistent with the information was relied on by the defence. That ground had been amended in the light of the Court's judgment in the case of Saunders v. the United Kingdom, and the amendment would have afforded the applicant the protection he sought had it been in place at the time. The judge took the view that once he had been questioned by the police and charged, the applicant had a right not to answer questions that would have tended to incriminate him. The only outstanding matter was whether the applicant should have attended the interview and then refused to answer questions, or, as he did, refuse to attend the interview once he failed to receive the assurances he had asked for. The judge regarded the distinction as technical, and found that the prosecution had failed to establish the absence of a “reasonable excuse” for not answering questions about the proceeds of a crime, with which he had been formally charged.
On 17 July 2002, the prosecutor requested the County Court to state a case for the purpose of an appeal to the Court of Appeal in Northern Ireland.
On 11 December 2002, the Court of Appeal in Northern Ireland heard the appeal. On 20 December 2002, Lord Justice Carswell, giving judgment, considered, in the light of R. v. Hertfordshire County Council, ex parte Green Environmental Industries Ltd ([2000] AC 326), that Article 6 § 1 of the Convention is directed towards the fairness of the trial itself and is not concerned with extra-judicial inquiries “with the consequence that a person to whom those inquiries are directed does not have a reasonable excuse for failing or refusing to comply with a financial investigator's requirements merely because the information sought may be potentially incriminating”. The appeal was upheld, and the applicant's conviction confirmed.
B. Relevant domestic law
The Proceeds of Crime (Northern Ireland) Order 1996 inter alia provides for investigatory measures and powers in respect of the tracing and confiscation of proceeds of criminal conduct.
Pursuant to paragraph 5(1) of Schedule 2, it was an offence for a person to fail, without reasonable excuse, to attend to answer questions by a Financial Investigator appointed under the Order. Paragraph 6 restricted the use that could be made of the statements made to three situations: two related to the questioning itself, namely prosecution for perjury or an offence under the order, and the third exception was prosecution for an offence where evidence inconsistent with any such answers or information was relied on by the defence (paragraph 6(b)). On 14 April 2000, paragraph 6(b) was amended by the Youth Justice and Criminal Evidence Act 1999 to cover use of the statements as evidence adduced by the defence only.
COMPLAINTS
The applicant complained that the requirement to attend an interview with the Financial Investigators to answer questions, after he had been charged with a criminal offence, and the resulting prosecution and conviction for failing to attend the interview, infringed Article 6 of the Convention, in particular as he was subjected to criminal sanctions aimed at compelling the production of incriminating evidence..
THE LAW
The applicant alleged a violation of Article 6 of the Convention by reason of the requirement to attend an interview and give information to financial investigators, and the resulting prosecution and conviction.
Article 6 provides, so far as relevant, as follows:
“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”
The Government refer to the case of Green Environmental Industries Ltd (cited above) and to the subsequent Court of Appeal case of R. v. Kearns ([EWCA] Crim 748). They conclude that the right to remain silent in Article 6 is not absolute, even in the case of a statutory power to demand information which could be used in criminal proceedings. Questions arise under Article 6 once, and only once, the criminal proceedings have begun. There is nothing objectionable under Article 6 in requiring the provision of answers or information where that is done for use in an extra-judicial inquiry. Whether the use made of evidence in a subsequent trial is compatible with Article 6 depends on the circumstances of the case.
Applying these principles to the instant facts, the Government contend that there could only be a violation in the present case once (a) there had been a trial of the applicant for the independent offences of false accounting and conspiracy to defraud; (b) he had brought himself within the “inconsistency” exception in paragraph 6 of Schedule 2 of the Order, and (c) the trial court had decided that the answers could be used against him. The Government do not accept that the fact that the charge preceded the second interview can affect the analysis.
Alternatively, the Government submit that the compulsion applied to the applicant in the present case was justified. They note that the information that the investigators were looking for was required for the important purposes of tracing the proceedings of crime under the regime set up by the Order. Any answers the applicant gave could not have been used in independent criminal proceedings unless he advanced a case inconsistent with the answers given, and even then the judge would have had a discretion not to allow the answers to be admitted. If the mere existence of the possibility of use justified a complete refusal to answer or to co-operate with the investigation, the Order would be rendered largely ineffective.
The applicant, taking issue with the Government, comments that the appointment of financial investigators under the Order was to assist an investigation into whether a person had benefited from crime, and as to the whereabouts of the proceeds of crime. He remarks that one might anticipate that such an investigation would take place after a conviction, rather than during it. In terms of the Convention case-law, the applicant notes that the Government's analysis cannot be reconciled with the Court's judgment in Funke (Funke v. France, judgment of 25 February 1993, Series A no. 256‑A), which was not expressly disapproved by the majority in Saunders (Saunders v. the United Kingdom, judgment of 17 December 1996, Reports of Judgments and Decisions 1996‑VI).
Having regard to the applicant's complaints and the parties' submissions, the Court finds that serious questions of fact and law arise, the determination of which should depend on an examination of the merits. The application cannot be regarded as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.
For these reasons, the Court unanimously
Declares the application admissible, without prejudicing the merits of the case.
Michael O'BoyleJosep Casadevall
RegistrarPresident
[1] So called because membership was limited to those who had been “imprisoned for their Irish Republican beliefs”
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