Case - Self-incriminating evidence may not be withheld 2

United Kingdom

In R v Hertfordshire County Council, ex parte Green Environmental Industries Ltd and Another, the House of Lords dismissed the appeals of Green Environmental Industries Ltd and its director against a decision of the Court of Appeal that a request for information under s71(2) of the Environmental Protection Act (EPA) 1990 did not offend against the right to silence and the privilege against self-incrimination.

An inspector for the council found over 100 tonnes of clinical waste stored at unlicensed sites near Hertford. The sites were found to be leased to Green Environmental Industries Ltd (Green) to whom the council wrote saying there had been a breach of s33 of the EPA 1990. The council also served a request for information under s71(2) of EPA 1990, asking Green for particulars, including details of all those who had supplied clinical waste to Green. Green's solicitor asked for confirmation that the answers would not be used against the company in a subsequent criminal prosecution, but the council refused. Green applied for judicial review which was refused, they then went to the Court of Appeal, arguing that they accepted that the terms of s71(20 impliedly excluded self-incrimination as an excuse for refusing to provide information, they should be entitled to rely on Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1953.

Lord Hoffman held that Article 6(1) was firmly anchored in the fairness of trial and was not concerned with extra-judicial inquiries. The trial judge should be left to exercise his discretion to exclude potentially self-incriminating answers as evidence at trial under s78 of the Police and Criminal Evidence Act 1984.

For further information please contact Verity Kidd on 020 7367 3182 or e-mail vqk@cms-cmck.com.