Hertfordshire County Council, Ex Parte Green Environmental Industries Ltd and Another, R v.

The House of Lords held that section 71(2) of the Environmental Protection Act 1990, read in its statutory context, impliedly excludes a right to refuse to provide information on the ground of self-incrimination. A person served with a notice under section 71(2) must furnish the factual information specified, subject to the protection available at any subsequent criminal trial where the judge has discretion under section 78 of the Police and Criminal Evidence Act 1984 to exclude evidence obtained in consequence of compelled answers.

The court relied on the statutory purpose of the investigatory power (protection of public health and the environment and the duty of care in section 34) and precedent on implied exclusion of privilege in specialised investigatory regimes. It rejected the submission that Community law or the Convention rights (Article 6) required that the privilege apply to such pre-trial administrative enquiries, distinguishing authorities (notably Saunders v United Kingdom) as directed to the use of compelled material at trial rather than to the lawfulness of administrative compulsion to answer.

This is an appeal from the dismissal of a judicial review challenge to a requisition for information issued under section 71(2) of the Environmental Protection Act 1990 by Hertfordshire County Council, acting as waste regulation authority. An inspector discovered substantial deposits of clinical (controlled) waste at sites associated with Green Environmental Industries Ltd and its principal, Mr John Moynihan. The Council required removal and then served a written notice under section 71(2) asking for detailed factual information about suppliers, carriers, staff and other sites. Green and Mr Moynihan refused to answer without assurance their answers would not be used in prosecution and sought judicial review; the Divisional Court and the Court of Appeal dismissed their challenge. They appealed to the House of Lords.

Nature of the claim: judicial review of the lawfulness of a requisition under section 71(2); the appellants sought to rely on the privilege against self-incrimination to refuse to comply.

Issues framed:

• Whether, as a matter of domestic statutory construction, section 71(2) permits refusal to answer on self-incrimination grounds.
• Whether Community law or the European Convention (Article 6) required a different construction or protection in respect of compulsory administrative enquiries that might lead to criminal proceedings.

Court’s reasoning: the House of Lords concluded that Parliament, having conferred urgent investigatory powers to protect health and the environment and to enforce the duty of care (section 34), must have intended that the statutory power be effective and not frustrated by a broad privilege to refuse factual information. The court distinguished the privilege against compelled testimony in judicial proceedings and the prophylactic rules governing suspect interviews; section 71(2) concerns an extra-judicial administrative inquiry and the answers sought were factual (names, addresses, locations) rather than forced admissions of guilt. Any unfairness arising from use at trial of answers given under compulsion would be addressed by the trial judge's discretion under section 78 of the Police and Criminal Evidence Act 1984. The court also considered Community jurisprudence (including Saunders, Orkem, Funke and Serves), agreeing that Article 6 concerns principally the fairness of criminal proceedings and the use at trial of compelled material, and that the Waste Management Licensing Regulations and the Directive-derived regime did not require treating the administrative requisition as subject to an absolute privilege against self-incrimination.

Disposition: the appeal was dismissed.

Appeal dismissed. The House of Lords concluded that section 71(2) of the Environmental Protection Act 1990, construed in its statutory context and purpose, does not permit refusal to answer on grounds of self-incrimination; any unfairness from use of compelled answers in subsequent criminal proceedings is a matter for the trial judge under section 78 of the Police and Criminal Evidence Act 1984. European/Community jurisprudence (including Article 6 ECHR) does not require a different outcome because its principal concern is the fairness of the trial and the admissibility of compelled material at trial rather than extra-judicial investigatory compulsion to give factual information.

Application for judicial review: leave granted; application dismissed by the Divisional Court (Russell LJ and Scott Baker J.). Appeal to the Court of Appeal (Beldam, Peter Gibson and Waller LJJ) dismissed unanimously. Final appeal to the House of Lords ([2000] UKHL 11; [2000] 2 AC 412) dismissed.