Law Report: Evidence obtained under compulsion could be used

The policy of the Secretary of State for Trade and Industry not to use, in criminal proceedings, evidence obtained from company directors under compulsion in the course of an investigation under the Companies Act was based on the privilege against self-incrimination. The decision of the Secretary of State not to extend the policy to proceedings brought under the Company Directors Disqualification Act 1986, which were civil in character, was not, therefore, irrational.

Regina v Secretary of State for Trade and Industry, ex parte McCormick; Queen's Bench Division (Crown Office List) (Mr Justice Rimer) 18 December 1997

The court dismissed the application of David Austin McCormick for judicial review of the decision of the Secretary of State for Trade and Industry not to review an earlier decision to use, in disqualification proceedings brought against him under section 8 of the Company Directors Disqualification Act 1986, transcripts of evidence given by him to inspectors appointed under section 432(2) of the Companies Act 1985 to investigate and report on the affairs of Atlantic Computers plc and Atlantic Systems plc, companies of which he had been a director.

Matthew Collings (Peters & Peters) for the applicant; A.W.H. Charles and James Eadie (Treasury Solicitor) for the Secretary of State.

Mr Justice Rimer said that the case against the applicant was in part based upon the inspectors' report, but the Secretary of State also relied on the transcripts of evidence given to the inspectors by the directors.

The admissibility of those transcripts was recognised at common law, but was put beyond doubt by section 434 of the 1985 Act. The applicant contended, however, that because they recorded evidence obtained from him under compulsion of law it was unfair that the Secretary of State should be allowed to use them against him in the proceedings.

The applicant had already attempted unsuccessfully to prevent the use of the transcripts, by a summons issued in the disqualification proceedings. His solicitors had then, in correspondence, invited the Secretary of State to review the decision to use the transcripts, relying on a policy developed following the decision of the European Court of Human Rights in Saunders v United Kingdom [1977] BCC 872 not to use, against an accused in criminal proceedings, transcripts of evidence given under compulsion to inspectors.

The issue before the court was whether the Secretary of State's decision was irrational. Saunders v United Kingdom and the new policy with regard to the use of compelled evidence in criminal proceedings was at the heart of the applicant's complaint. It was submitted that the policy applied to disqualification proceedings because they were properly to be characterised as criminal proceedings. Whilst it was admitted that domestic law characterised them as civil proceedings, what mattered was how the European Court of Human Rights would characterise them in applying the law applicable to the European Convention for the Protection of Human Rights and Fundamental Freedoms.

However, in EDC v United Kingdom (unreported, 26 February 1997) the European Commission on Human Rights had taken the view that disqualification proceedings constituted a dispute over "civil rights and obligations" for the purposes of Article 6.1 of the Convention. That supported the Secretary of State's opinion that the European Court of Human Rights would be likely to regard the present disqualification proceedings as essentially different in character from the criminal proceedings in Saunders v United Kingdom, and entitled her to arrive at the conclusion that the upholding of the privilege against self-incrimination in criminal proceedings, which was the whole basis of the decision in Saunders v United Kingdom, had no directly analogous application to civil disqualification proceedings which would justify the extension of the current policy to them.

The applicant's alternative submission was that even if disqualification proceedings were to be classified as civil proceedings the intended use of the transcripts would be profoundly unfair. Disqualification proceedings were not, however, ordinary civil proceedings. They were brought in the public interest and it was important that they should be effective. Fairness was not to be assessed simply by examining the position through the eyes of one party to the proceedings. The decision of the Secretary of State could not be regarded as irrational.

- Kate O'Hanlon, Barrister