The use of compelled testimony in criminal proceedings

Introduction

This is the first of two articles exploring the use of compelled testimony in criminal proceedings. This article asks whether there are any circumstances in which compelled testimony can be lawfully admitted against the compelled person. The second article will ask whether there is any prohibition on admitting compelled testimony against a defendant other than the compelled person.

“A relatively bright line”

Last year the High Court in River East Supplies Ltd v The Crown Court at Nottingham heard a judicial review of a production order granted pursuant to a request for mutual legal assistance from the US Department of Justice.[1] The production order sought material held by the claimant that was said to be relevant to an investigation into an alleged conspiracy to distribute counterfeit, misbranded and unapproved prescription drugs. The company’s judicial review was nothing if not ambitious. One of the two arguments the company advanced was that producing the material described in the production order would violate its privilege against self-incrimination.

The Court held that there was a “relatively bright line” between, on the one hand, being compelled to answer questions, and on the other, being compelled to produce pre-existing documents.[2] The Court illustrated this distinction by identifying a line of jurisprudence originating with Saunders v United Kingdom, in which the ECtHR held that:

“The right not to incriminate oneself […] 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 purpose of DNA testing.”[3]  

Applying this reasoning, the Court dismissed the claim for judicial review, holding that the documents sought under the production order were “independent of the will of the suspect”, i.e. the documents had been created before any crime was suspected and did not come into being solely by virtue of the US criminal investigation. The Court observed that whether a document should be considered independent was nearly always clear-cut, adding pointedly that the “scope for serious dispute is limited”.[4]

The decision thus affirms the long-established principle that being compelled to produce independent, pre-existing documents does not infringe the privilege against self-incrimination; the use of these documents in subsequent criminal proceedings will not violate the defendant’s right to a fair trial under Article 6 of the European Convention on Human Rights. However, the Court acknowledged that being compelled to answer questions, and admitting the answers as evidence against the compelled person, falls on the other side of the “relatively bright line”. In such circumstances the privilege against self-incrimination is generally infringed and results in a violation of Article 6.

The Court was careful not to describe this bright line in absolute terms. The Court’s caution reflects, at least in part, the exception to the general principle that compelled testimony cannot be used against the compelled person. To understand how this exception has evolved, it is necessary to recall that, whilst Article 6 is an absolute right, constituent elements of this right (such as the right not to incriminate oneself) are not themselves absolute.[5] That is, these constituent rights can be abrogated in appropriate circumstances without violating Article 6.

In what circumstances can the privilege against self-incrimination lawfully be abrogated, so as to render compulsorily obtained testimony admissible in criminal proceedings against the compelled person?

How has the case law evolved?  

The first case to abrogate the privilege against self-incrimination was the Privy Council decision in Brown v Stott, which concerned section 172(2) of the Road Traffic Act 1988.^[6] On being compelled to identify, pursuant to this section and on pain of being prosecuted if she refused, the person who was driving her car at a particular time, Brown responded: “it was me”. Could this response be admitted against her in evidence? Lord Bingham reasoned that:

“While the overall fairness of a criminal trial cannot be compromised, the constituent rights comprised, whether expressly or impliedly, within Article 6 are not themselves absolute. Limited qualification of these rights is acceptable if reasonably directed by national authorities towards a clear and proper public objective and if representing no greater qualification than the situation calls for […] There being a clear public interest in enforcement of road traffic legislation the crucial question in the present case is whether section 172 represents a disproportionate response, or one that undermines a defendant’s right to a fair trial, if an admission of being the driver is relied on at trial.” 

In formulating this test, it appears that Lord Bingham had in mind the three criteria outlined by the ECtHR in Handyside v United Kingdom, all of which must be satisfied before a qualified right can be abrogated. These criteria are as follows:

1. The limitation must be provided for by law, which means:
   1. There must be a sufficient degree of control over the decision-maker to avoid the exercise of arbitrary action;
   2. The law must be accessible; and
   3. There must be certainty (i.e. a person must be able to foresee the consequences that a certain action would entail).
2. The limitation must be in pursuit of a legitimate aim.
3. The limitation must be necessary in a democratic society.

Applying these criteria to the facts of Brown v Stott, the first criterion was plainly met by virtue of the existence of the Road Traffic Act 1988, as was the second criterion because there was a “clear public interest in enforcement of road traffic legislation”. The “crucial question”, according to Lord Bingham, was the application of the third criterion. In assessing whether the use of compelled testimony under section 172(2) was necessary in a democratic society, Lord Bingham observed that those who drive cars can be taken to have accepted certain responsibilities and obligations as part of the regulatory regime relating to motor vehicles; that the compulsion was directed only at a very limited inquiry, i.e. the identity of the driver; that section 172(2) did not sanction prolonged questioning about factors alleged to give rise to criminal offences; that the criminal penalties for failing to answer questions were non-custodial; and that the risk of unreliable admissions was negligible. For all of these reasons, it was held that the privilege against self-incrimination could be abrogated, thereby allowing Brown’s compelled answer to be used against her without violating her right to a fair trial under Article 6.

The reasoning of Brown v Stott was explicitly followed by the ECtHR in O’Halloran and Francis v United Kingdom, which also concerned section 172(2) of the Road Traffic Act 1988.^[7] Both O’Halloran and Francis’s vehicles were caught on speed cameras. In response to requests under section 172(2), O’Halloran responded that he had been driving and his response was admitted in evidence in his prosecution for speeding; Francis refused to answer and was prosecuted for the offence of failing to comply with the request. The Court held, echoing Lord Bingham’s observations, that: 

“In order to determine whether the essence of the applicants’ […] privilege against self-incrimination was infringed, the Court will focus on the nature and degree of compulsion used to obtain the evidence, the existence of any relevant safeguards in the procedure, and the use to which any material so obtained was put.”^[8]

The ECtHR subsequently reached an identical finding in Lückhof and Spanner v Austria.^[9] This case also concerned applicants who failed to supply the names and addresses of the drivers of their cars, as they were obliged to do under Austrian law, and who were convicted of failure to comply with their obligation to provide this information.

Where does the law stand now?

In over 30 years of jurisprudence, Brown v Stott, O’Halloran and Francis and Lückhof and Spanner remain the only line of authority in which the privilege against self-incrimination has been abrogated, such that the admission of compulsory testimony against the compelled person has not violated Article 6. 

Judicial reluctance to abrogate the privilege outside the context of road traffic legislation can be illustrated with an example. R v K concerned tax evasion charges based on the defendant’s compelled disclosure in matrimonial ancillary relief proceedings of information about his income and assets.^[10] Had the defendant refused to provide the information, he would have faced the sanction of imprisonment for up to two years. HMRC accepted that, without the compelled disclosure, it would have had insufficient evidence with which to prosecute. The Court of Appeal held that:

“[…] the essential principle to be derived from [Brown v Stott] is that a restriction of an accused person’s right not to incriminate himself will not infringe his right to a fair trial provided that the compulsion under which the information is obtained is of a moderate nature and the use of the evidence obtained by it represents a proportionate response to a pressing social need […] It is therefore necessary to consider the nature of the compulsion applied, the nature of the evidence obtained by means of it and the social need which the admission of such evidence at a subsequent trial is intended to meet.”^[11]

Echoing Lord Bingham’s reasoning in Brown v Stott, the Court of Appeal emphasised the weight of the public interest – expressed in terms of “social need” – in bringing to conviction perpetrators of offences of the type charged. The Court acknowledged that the protection of the public revenue was an important social objective, but nonetheless considered that the admission of evidence obtained from the accused under threat of imprisonment was not a reasonable and proportionate response to that need. Accordingly, the Court held that the compulsorily obtained evidence could not be used in evidence against the defendant.

Conclusions

The use in criminal proceedings of independent, pre-existing documents produced under a compulsory power (whether a search warrant or production order) will never engage the privilege against self-incrimination. Subject to the domestic rules of evidence contained in the Police and Criminal Evidence Act 1984, such documents will be admissible against the person who was compelled to produce them. Conversely, the use in criminal proceedings of compulsory testimony against the compelled person will always engage the privilege against self-incrimination. As such the testimony will nearly always be inadmissible against the person who was compelled to testify. This distinction explains why the High Court in River East observed that the “scope for serious dispute is limited”. The only abrogation of the principle that compulsory testimony is inadmissible against the compelled person has been a short line of road traffic authorities. That the privilege against self-incrimination has been abrogated so rarely reflects how the ECtHR famously articulated the significance of the privilege in Saunders:

“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.”^[12]

As a result of Saunders, Parliament legislated for use immunity provisions which provided a statutory assurance that compulsorily obtained testimony (such as that obtained by the Serious Fraud Office under section 2 of the Criminal Justice Act 1987) would be inadmissible against the compelled person in criminal proceedings.

Compared to these assurances, section 172(2) of the Road Traffic Act 1988 is an outlier in English criminal law. The author is unaware of any analogous statutory provision that compels a person to provide testimony that the statute expressly contemplates will be used as evidence against him at a criminal trial. But then section 172(2) compels a person to provide an answer only in relation to an extremely focused inquiry, namely the identity of the driver of a car at the relevant time. Other interviews conducted under statutory compulsion will be more wide-ranging in nature. As R v K demonstrates, the very fact that these interviews will be more wide-ranging – together with the risk that the answers may be the most important or even the decisive evidence in a prosecution – is all the more reason for those answers to be excluded.

Nor can an argument be made that the public interest demands the admission of compelled testimony in prosecutions for the most serious offences. If compelled testimony were to be admitted in a prosecution for murder, rape or bribery simply on account of the seriousness of those offences, the same principle would have to extend to all other cases of murder, rape or bribery of equal gravity. Indeed, the rationale points in the opposite direction, in that the most serious cases are those where the risks of improper compulsion by the authorities are the greatest, which renders the protection afforded by the privilege against self-incrimination all the more necessary.

Given that compelled testimony is only admissible in criminal proceedings against the compelled person in extremely limited circumstances – namely a legally and factually discrete group of road traffic cases – it might be asked: is there anything to stop this evidence being used against a defendant other than the compelled person? That question will be the subject of a second article.

[1] R (on the application of River East Supplies Limited) v The Crown Court at Nottingham v Chief Constable of Nottinghamshire Police, Secretary of State for the Home Department [2017] EWHC 1942 (Admin).

[2] Ibid, para 107.

[3] Saunders v United Kingdom (1996) EHRR 313, para 69.

[4] River East Supplies Limited, para 107.

[5] Murray v United Kingdom (Application no. 18731/91) [1996] ECHR 3, para 47: “it follows from this understanding of “the right to silence” that the question whether the right is absolute must be answered in the negative.” See also Heaney and McGuiness v Ireland (2000) 33 EHRR 12, para 47: “the right to silence and the right not to incriminate oneself guaranteed by Article 6(1) are not absolute rights.”

[6] Brown v Stott 2001 SC (PC) 43.

[7] O’Halloran and Francis v UK (2007) 46 EHRR 21.

[8] Ibid, para 58.

[9] Lückhof and Spanner v Austria, app nos. 58452/00 and 61920/00 ECtHR 10 January 2008.

[10] R v K(A) [2009] EWCA Crim 1640.

[11] Ibid, para 41.

[12] Saunders, para 68.

A shorter version of this article was originally published in Global Investigations Review (GIR) and can be accessed here, behind a paywall.