R v Hertfordshire County Council, Ex p Green Environmental Industries Ltd (Green Environmental Industries Ltd, Ex parte)

A statutory power requiring information may impliedly exclude the privilege against self-incrimination where allowing the privilege would frustrate an important investigatory and protective purpose. A person served under section 71(2) of the Environmental Protection Act 1990 must provide requested factual information, even where it may assist a prosecution.

Article 6 of the Convention principally protects the fairness of criminal proceedings. It does not ordinarily confer a right to obstruct a non-adjudicative investigation. Any unfairness arising from compelled answers is addressed when their admission is proposed at trial. Community law distinguishes requests for factual information from questions requiring an admission of an infringement; only the latter imperil the rights of the defence.

A waste regulation authority discovered more than 100 tonnes of clinical waste stored without a licence on sites apparently occupied by the appellant company. It served a notice under section 71(2) of the Environmental Protection Act 1990, seeking information about the waste's producers, carriers, handlers, vehicles and locations.

The appellants refused to answer without an assurance that the information would not be used in a prosecution. The Divisional Court dismissed their application for judicial review. The Court of Appeal unanimously dismissed their appeal.

The central issue before the House was whether the privilege against self-incrimination, as protected by domestic law, Community law and article 6 of the Convention, supplied a reasonable excuse for refusing to provide the information.

1. Appeal dismissed unanimously. Lord Hoffmann delivered the leading speech. Lord Slynn, Lord Steyn and Lord Hobhouse agreed with his reasons; Lord Cooke agreed with the result and added observations.

2. Per Lord Hoffmann, the availability of a privilege against self-incrimination under a statutory information-gathering scheme is a question of statutory construction. The privilege may be excluded by necessary implication where its exercise would stultify the scheme. Section 71(2) of the Environmental Protection Act 1990 served the broad and urgent public purposes of protecting health and the environment and tracing waste through successive transfers. Parliament therefore intended recipients to provide the information despite its potentially incriminating character.

3. The nature of the affected immunity reinforced that construction. The notice did not interrogate an accused at trial, require an immediate oral response or invite a confession. Its recipient could answer in writing with legal advice. Any prejudice at a later trial could be addressed through the trial judge's discretion under section 78 of the Police and Criminal Evidence Act 1984.

4. Per Lord Hoffmann, article 6 of the Convention did not entitle the appellants to refuse to answer. The reasoning in Saunders v United Kingdom (1996) 23 EHRR 313 was directed to the use at trial of answers obtained under compulsion. It did not condemn compulsory, non-adjudicative investigations themselves. The Council's ability to prosecute did not convert its section 71 inquiry into an adjudication.

5. The requests also complied with the distinction drawn in Orkem v Commission [1989] ECR 3283. An investigator may compel factual information, even if it may provide evidence of an infringement, but may not compel answers amounting to an admission of an infringement which the investigator must prove. The Council requested names, addresses and locations; it sought no admission of wrongdoing.

6. Lord Cooke observed that compelled answers could successfully be excluded if tendered against their maker in a subsequent prosecution. Whether article 6 also excludes derivative evidence remained unclear and did not require determination. Lord Cooke, Lord Steyn and Lord Hobhouse further considered that the judicial review proceedings were appropriate when initiated; R v Director of Public Prosecutions, Ex p Kebilene [1999] 3 WLR 972 concerned satellite proceedings during an existing criminal prosecution and did not determine this different situation.

1. House of Lords: The appellants' appeal was dismissed unanimously.
2. Court of Appeal: Beldam, Peter Gibson and Waller LJJ unanimously dismissed the appeal from the Divisional Court.
3. Divisional Court of the High Court: Russell LJ and Scott Baker J dismissed the application for judicial review of the section 71(2) notice.