CASE OF SHANNON v. THE UNITED KINGDOM
Violation of Art. 6-1;Pecuniary and non-pecuniary damage -  financial award;Costs and expenses partial award - Convention proceedings
Josep Casadevall;Nicolas Bratza
7. The applicant was born in 1948 and lives in Belfast. 8. The applicant was the chair of the Irish Republican Felons Club, a registered social club operating on the Falls Road, Belfast. In May 1997, the Royal Ulster Constabulary (“RUC”) carried out a search of the premises and removed many documents. 9. The applicant was subsequently required to attend for interview with a financial investigator appointed under the Proceeds of Crime (Northern Ireland) Order 1996. He did so on 27 January 1998 and answered all questions put to him. 10. On 16 April 1998, the applicant was charged by the police with false accounting and conspiracy to defraud. 11. On 2 June 1998, a further notice was served on the applicant under the 1996 Order, requiring his attendance before financial investigators at a police station on 11 June 1998. The maximum penalty for failure to attend an interview was six months' imprisonment or a fine not exceeding GBP 5,000. The notice, which was dated 1 June, stated that the investigation was into whether any person had benefited from theft or false accounting, contributing to the resources of a proscribed organisation or from contraventions of betting regulations. The applicant was required to attend at Woodbourne Police Station on 26 June 1998. 12. On 9 June 1998, the applicant's solicitors sent a letter seeking a written guarantee that no information or statements obtained during the interview would be used in criminal proceedings. 13. On 16 June 1998, a further notice, dated 16 June, was served on the applicant, again requiring him to attend the interview on 26 June 1998. The notice was served with a letter in which the investigators confirmed that they were aware of the criminal proceedings pending against the applicant. They set out the safeguards in paragraph 6 of Schedule 2 to the Order, and stated that the applicant therefore had the guarantees he sought. They added that paragraph 7 of Schedule 2 restricted the disclosure of information obtained by a financial investigator, and added that “this does not prevent the answers or information being used to further the investigation”. 14. On 22 June 1998, the applicant's solicitor sent a letter to the financial investigators indicating that the applicant's replies could become admissible evidence at a trial and suggesting that the purpose of the interview was to compel him to disclose his defence. He added that the applicant had been advised not to attend an interview unless a satisfactory response to the letter was received. 15. On 23 June 1998, the applicant's solicitor was informed by letter that the reason for the interview was not to force the applicant to disclose his defence but that a number of matters from the earlier interview required clarification and additional matters had also arisen. 16. On a request by the investigators, on 25 June the applicant's representatives informed the investigators that the applicant would not attend the interview. The interview did not take place. 17. On 14 September 1998, a summons charged the applicant with the offence of failing without reasonable excuse to comply with the financial investigator's requirement to answer questions or otherwise furnish information, contrary to paragraph 5(1) of Schedule 2 to the 1996 Order. On 25 February 1999, the applicant was convicted of this offence in the Magistrates' Court and fined the sum of GBP 200. 18. On 5 July 2002, the Belfast County Court allowed the applicant's appeal against conviction, finding that the prosecution had not proved the absence of a reasonable excuse. The judge noted that the Northern Ireland Court of Appeal had dealt with a similar case (Clinton v. Bradley [2000] NI 196) which related to the same legislation and the same investigation. The Northern Ireland Court of Appeal had held that as Parliament had put in place certain express limitations on the use of information obtained by investigators, it could not have intended that the person concerned could put forward the risk of self-incrimination as a “reasonable excuse”. In Clinton v. Bradley, however, the accused had refused to answer questions at an interview, and he had not been interviewed by the police, or charged with any offence. 19. The judge further noted that one of the grounds on which the information obtained by investigators could be used in criminal proceedings was where evidence inconsistent with the information was relied on by the defence. That ground had been amended in the light of the Court's judgment in the case of Saunders v. the United Kingdom, and the amendment would have afforded the applicant the protection he sought had it been in place at the time. The judge took the view that once he had been questioned by the police and charged, the applicant had a right not to answer questions that would have tended to incriminate him. The only outstanding matter was whether the applicant should have attended the interview and then refused to answer questions, or, as he did, refuse to attend the interview once he failed to receive the assurances he had asked for. The judge regarded the distinction as technical, and found that the prosecution had failed to establish the absence of a “reasonable excuse” for not answering questions about the proceeds of a crime, with which he had been formally charged. 20. On 17 July 2002, the prosecutor requested the County Court to state a case for the purpose of an appeal to the Court of Appeal in Northern Ireland. 21. On 11 December 2002, the Court of Appeal in Northern Ireland heard the appeal. On 20 December 2002, Lord Justice Carswell, giving judgment, considered, in the light of R. v. Hertfordshire County Council, ex parte Green Environmental Industries Ltd ([2000] AC 326), that Article 6 § 1 of the Convention is directed towards the fairness of the trial itself and is not concerned with extra-judicial inquiries “with the consequence that a person to whom those inquiries are directed does not have a reasonable excuse for failing or refusing to comply with a financial investigator's requirements merely because the information sought may be potentially incriminating”. The appeal was upheld, and the applicant's conviction confirmed. 22. The criminal proceedings for false accounting and conspiracy to defraud (see § 10 above) were struck out on grounds of delay by the Belfast Magistrates' Court in June 2002. The magistrate was asked by the office of the Director of Public Prosecutions to state a case for the Court of Appeal, but he died before having prepared the stated case. 23. The Proceeds of Crime (Northern Ireland) Order 1996 inter alia provides for investigatory measures and powers in respect of the tracing and confiscation of proceeds of criminal conduct. 24. Pursuant to paragraph 5(1) of Schedule 2, it was an offence for a person to fail, without reasonable excuse, to attend to answer questions by a Financial Investigator appointed under the Order. Paragraph 6 restricted the use that could be made of the statements made to three situations: (a) on a prosecution for an offence under the Perjury (Northern Ireland) Order 1979; (b) on a prosecution for some other offence where evidence inconsistent with any such answers or information is relied on by the defence, or (c) on a prosecution for failing to comply with a requirement of the 1996 Order, such as attending to answer questions On 14 April 2000, paragraph 6(b) was limited by the Youth Justice and Criminal Evidence Act 1999 to permit use of the statements only if they are adduced, or if they are the subject of questions at trial, by the defence. 25. According to paragraph 7 of Schedule 2, information obtained by a person in his capacity as a financial investigator may not be disclosed by him except to (a) a constable; (b) any Northern Ireland department or government department discharging its functions on behalf of the Crown; (c) to any competent body as defined, or (d) any foreign equivalent of (a) –(c).