Court of Appeal in Northern Ireland Decisions

1. This appeal comes before us by way of case stated from a decision of a resident magistrate Mr CH McKibbin given on 1 March 1999, whereby he convicted the appellant of an offence against paragraph 5(1) of Schedule 2 to the Proceeds of Crimes (Northern Ireland) Order 1996 (the 1996 Order) of failing without reasonable excuse to comply with a requirement imposed upon him to answer questions put to him by a financial investigator. The issue upon which the appeal turned was whether the appellant had reasonable excuse to refuse to answer if he believed that to do so might tend to incriminate him in respect of another offence with which he was subsequently charged.

2. The object of the 1996 Order was to provide means of tracing and confiscating money and property derived from criminal conduct. To that end the Order gave to the courts powers of various kinds designed to assist in the process of tracing the proceeds of crime. Article 49 empowers a county court judge, when satisfied of the matters set out in paragraph (1), to appoint a financial investigator to exercise for the purposes of the investigation the powers conferred by Schedule 2. Paragraphs 2 and 3 of Schedule 2 confer upon the financial investigator a number of specified powers, the material one for present purposes being that contained in paragraph 2(1):

3. Paragraph 4 specifies certain restrictions on the exercise of the powers contained in paragraphs 2 and 3. Paragraph 5 makes it an offence to fail to comply with a financial investigator's requirements:

4. Paragraph 6 contains restrictions on the use which may be made of answers given or information furnished by the person interviewed and paragraph 7 contains restrictions on disclosure of the information so gained. Paragraph 6 reads:

5. Two financial investigators were duly appointed by a county court judge to investigate whether any person had benefited from certain conduct to which Article 49 of the 1996 Order applied, namely, theft and false accounting, contributing to the resources of a proscribed organisation, assisting in the retention or control of terrorist funds and contraventions of the Betting, Gaming and Amusements (Northern Ireland) Order 1985. They caused a notice to be served on the appellant pursuant to paragraph 2(1) of Schedule 2, stating that they had reason to believe that he had information relevant to the investigation and requiring him to attend at Woodbourne police station at 2 pm on 25 February 1998 and to answer questions or otherwise furnish information which appeared to them to relate to the investigation.

6. The appellant attended at the time and place specified, accompanied by his solicitor. In paragraphs 3.5 to 3.8 of the case stated the magistrate sets out what followed:

7. It was argued before the magistrate that the appellant had a reasonable excuse not to comply with the investigators' requirement to answer questions or otherwise furnish information. The magistrate rejected the defence, holding in paragraph 3.10 of the case:

8. He therefore found the offence proved and convicted the appellant, imposing a fine of £500.00. By a requisition dated 9 March 1999 the appellant applied to the magistrate to state a case for the opinion of this court on the question of law therein set out. The magistrate on 8 June 1999 stated and signed a case, in which the question of law posed was as follows:

9. The privilege against self-incrimination is one of what Lord Mustill in R v Director of Serious Frauds Office, ex parte Smith [1993] AC 1 at 30 described as a "disparate group of immunities" commonly grouped together under the general heading of the "right to silence" (a phrase frequently misunderstood or misused). It is expressed in the maxim nemo tenetur prodere seipsum cited by Blackstone ( Comm. iv, 296) . The privilege falls within the class of principles described by Lord Hoffmann in R v Hertfordshire County Council, ex parte Green Environmental Industries Ltd (2000, unreported) as –

10. In the context of Mareva orders it has been held that the privilege against self-incrimination extends not merely to the giving of information which might create a risk that the giver could be prosecuted. In Den Norske Bank ASA v Antonatos [1998] 3 All ER 74 at 89 Waller LJ described the breadth of the privilege as follows:

11. It has been suggested that the privilege extends to information which may set in train a process which may lead to incrimination or may lead to the discovery of real evidence of an incriminating character. In Sociedade Nacional de Combustiveis de Angola UEE v Lundqvist [1991] 2 QB 310 at 332 Beldam LJ supported that view of the ambit of the privilege. Staughton LJ, however, at page 325 expressed reservations whether it extends as far as that, and the point is not finally settled.

12. The grounds on which counsel for the appellant contended that he had a reasonable excuse for refusing to answer the investigators' questions were –

13. The question whether the provisions of Schedule 2, in conferring a power to ask questions or obtain documents or information, excludes the privilege against self-incrimination is one of construction. We do not consider that paragraph 5(1) is ambiguous. The wording of the provision is itself perfectly clear, that the failure to comply with the investigators' requirement to answer questions or furnish information is an offence unless the person so required has a reasonable excuse. It is the content of what is meant by a reasonable excuse which the appellant claims is ambiguous. In our opinion the fact that paragraph 6 provides a safeguard against his answers or information being used in evidence, together with the other safeguards contained in Schedule 2, demonstrates with sufficient clarity that Parliament did not intend that the person concerned could put forward the risk of self-incrimination as a reasonable excuse. If he could, then there would be no need for paragraph 6, which would be wholly superfluous. Parliament can and from time to time does enact provisions which interfere with the right to silence. As Lord Mustill said in Ex parte Smith at page 40, it has not shrunk, where it seemed appropriate to do so, from interfering in a greater or lesser degree with that group of immunities. Nor, as Lord Mustill also pointed out ( ibid.), has the provision making such provision always been explicit, and more commonly it has been left to be inferred from general language . We respectfully agree with Windeyer J in the High Court of Australia in Rees v Kratzmann (1965) 114 CLR 63 when he said at page 80:

14. There is a considerable public interest in combating money laundering and tracing the proceeds of crime, and Parliament must in our view have intended that the privilege should for that purpose be overridden, substituting the safeguards provided for in Schedule 2. Were it otherwise, the statutory purpose would very easily be stultified and the Order rendered largely ineffective: cf Bishopsgate Investment Management Ltd v Maxwell [1993] Ch 1 at 20, where Dillon LJ expressed a similar view of the investigatory powers conferred on the Bank of England by the Banking Act 1987. That would, as Lord Bingham CJ pointed out in R v Staines and Morrissey [1997] 2 Cr App R 426 at 442, amount to a repeal, or a substantial repeal, of a statutory provision.

15. We do not find the decision in R v Donnelly [1986] NI 54, relied upon by the appellant, of assistance in considering this issue. In that case the accused was charged with failing without reasonable excuse to give information to a constable, contrary to section 5(1) of the Criminal Law Act (Northern Ireland) 1967. His defence, which was accepted by Hutton J, was that the information would tend to incriminate him and therefore he had a reasonable excuse for withholding it. In the 1967 Act there was no provision comparable with paragraph 6 of Schedule 2 to the 1996 Order, and accordingly the judge held that the privilege against self-incrimination prevailed. He pointed out at page 59 that this would apply only where there was a genuine risk to the person claiming the privilege:

16. The decision in R v Donnelly must in our view be distinguished from the present case, where the safeguards minimise the risk to the person from information is required and show that the legislature intended to override the privilege.

17. For the reasons which we have given we consider that there is no ambiguity in paragraph 5(1) of Schedule 2 to the 1996 Order and therefore it is not necessary to resort to the European Convention on Human Rights for assistance in its interpretation. We have, however, considered its effect and are of the opinion that it does not assist the appellant. It was argued on his behalf, in reliance upon Saunders v UK (1996) 23 EHRR 313, that to require a person to incriminate himself would mean that his trial was unfair, in breach of Article 6(1) of the Convention. That cannot, however, be judged at the time when the investigators require the person concerned to answer questions or furnish information, or even at the time when the magistrates' court decides on the commission of an offence under paragraph 5(1). It can only be determined at the time of the trial of the offence in respect of which it is claimed that the person may be incriminated by the answers or information: see R v Director of Public Prosecutions, ex parte Kebeline [1999] 4 All ER 801 at 834, per Lord Steyn. As the European Court of Human Rights remarked at paragraph 69 of its judgment in Saunders v UK , the question must be examined by the court in the light of all the circumstances of the case. These cannot possibly be known at the time when the investigators require answers or information.

18. It is apparent from the observations of the European Court of Human Rights in Saunders v UK that it was concerned with the use at the defendant's eventual trial of the information gained from him at the examination stage, and that it was not casting doubt upon the propriety of the use of compulsory powers at that earlier stage. In paragraph 67 of its judgment the Court said:

19. As Lord Hoffman observed in Ex parte Green Environmental Industries Ltd (supra), the European jurisprudence is firmly anchored in the fairness of the trial and is not concerned with extra-judicial inquiries. We therefore conclude that the proper application of the principle of the fairness of the trial enshrined in Article 6 of the Convention does not lead to the conclusion that the appellant had a reasonable excuse for failing to comply with the investigators' requirements.

20. We accordingly consider that the decision of the resident magistrate was correct. We answer the question posed in the affirmative and dismiss the appeal.