Defence lawyers specialising in City fraud expect to see a change in the way prosecuting authorities handle evidence gained under powers of compulsion, following the report by the European Commission on Human Rights on the case of former Guinness chairman Ernest Saunders.
But uncertainty is the keynote for the next 18 months or so until the European Court of Human Rights rules on the Saunders case.
Leading lawyer Monty Raphael, joint senior partner of Peters & Peters in London, says the commission's conclusion will have no binding effect. However, he adds: “The effect one could hope for would be the UK Government and agencies reflecting on the effect of the use of their powers.”
The Saunders case specifically involves the powers of the Department of Trade and Industry (DTI).
The EC's report upheld Saunder's complaint over use of evidence in court that arose from interviews with DTI inspectors.
The interviews were carried out under section 434 of the Companies Act 1985, which suspends the right to silence and requires questions to be answered on pain of up to two years' imprisonment.
Saunders was denied a fair trial because the use of such evidence meant he been compelled to incriminate himself, thereby going against the grain of European law.
Brian Spiro, Simons Muirhead & Burton partner, says: “As things presently stand, in any present or pending proceedings any prosecutor will be wary of introducing evidence arising from DTI or SFO section II interviews, as will any judge.
“They are now on notice of the high risk that, in the event of a conviction, an EC ruling will render the trial null and void, ” he says.
David Kirk, who joined Simons Muirhead & Burton as a partner from Stephenson Harwood this year, says: “It will prompt re-appraisal of cases where such evidence is being used, and it will add ammunition to defence lawyers who want this sort of thing excluded.”
Kirk, who has previously worked in the DPP's office and the law officers' department, says the SFO will also have to be cautious about using evidence gained by compulsory powers under other statutes such as the insolvency, banking and insurance companies acts.
One question needing answer is whether the SFO's powers to demand information, under section II of the Criminal Justice Act 1987, will be caught by the commission's report or by a European Court ruling following the referral of Saunders' case.
An SFO spokesman says: “With regard to this office, it doesn't effect us at all. Our section II powers are markedly different from those of the DTI.”
The SFO argues that unlike DTI powers, evidence arising from section II powers cannot be used in evidence against a defendant – except if a defendant contradicts himself.
“It can be used to further the investigation, but not directly as evidence,” according to the spokesman.
Lawyers agree that in law this is correct.
But Spiro says the SFO powers could be caught. He says the fact remains that section II evidence can become admissible. “Also, the SFO position refuses to acknowledge that a suspect who is subject to a section II interview will throw up information which can be used to pursue another avenue of the enquiry that might not have been open if he had been able to exercise his right to silence.”
Spiro adds: “To that extent the right to silence has gone. The issue is not just about admissibility of evidence, but about being obliged to incriminate yourself.”
Welcoming the commission report as a “positive step”, Spiro says: “I, along with most criminal defence lawyers, have always criticised the gradual encroachment into the right to silence. It would appear that the European Commission is supporting that view – that right
to silence is sacrosanct to all individuals.”
Raphael says: “It's nice to know this international human rights body has taken this stand, as it seem that white collar crime suspects have been sacrificed on the altar of jurisdictional expediency.”
The commission report is a victory not only for Saunders, but also for his Mackenzies' friend George Devlin, counsel Jonathan Caplan QC and solicitors, Vernor Miles & Noble.
Paul Williams, of Vernor Miles, says: “The UK authorities will have to take note of any court decision. It may force a change on the Government.”