Funke V. France and the right against self-incrimination: A critical analysis

Criminal Law Forum

Volumn 11, Issue 4, 2000, Pages 461-505

  Butler, Andrew S ^a,b  

^a VICTORIA UNIVERSITY OF WELLINGTON   (New Zealand)

^b NONE

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EID: 52849096041     PISSN: 10468374     EISSN: 15729850     Source Type: Journal    
DOI: 10.1023/A:1016665220265     Document Type: Review

References (222)

1. R v. Hertfordshire County Council, ex parte Green, [2000] 1 All E.R. 773 (H.L.), p. 782, referring to Funke v. France, Series A, No. 256A, (1993) 18 E.H.R.R. 297, p. 326, para. 44.
2. (1955) 213 U.N.T.S. 221, [1955] E.T.S. 5. Article 6(1) declares: "In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice."
3. The case also involved a claim by the applicant that the search of his house had been conducted in breach of art 8 of the Convention (right to respect for home and private life).
4. Funke v. France [Commission], supra note 1, at p. 313, para. 61.
5. Ibid., at p. 313, para. 63.
6. Ibid., at p. 314, para. 63.
7. Ibid., at p. 314, paras 64-65.
8. Series A, No. 73, (1984) 6 E.H.R.R. 409.
9. Supra note 1, at p. 320, para. 1 of dissenting opinion.
10. Ibid., at p. 321, para. 5.
11. Ibid., at p. 326, para. 44.
12. The Court dedicated significantly more space to the issues raised under article 8 of the Convention. In particular the Court set out the arguments as to the special needs of tax enforcement agencies in more detail, though ultimately held against the respondent Government on the ground that the statute did not provide sufficient safeguards against the customs authorities broad powers of search and seizure. The article 8 discussion is referred to infra note 78.
13. S.H. Naismifh, Self-incrimination -Fairness or Freedom?, [1997] EUR. HUM. RTS L.R. 229, criticises the "incidental manner" in which the right against self-incrimination was accepted in Funke and the "absence of any comprehensible reasoning as to the relevance of the principle to the facts of the case". Judge Martens, in Saunders v. United Kingdom, (1996) 23 E.H.R.R. 313 (ECtHR), p. 351 (para. 5), referred to paragraph 44 in Funke as "widely criticised as being unmotivated and unclear". And note also the critical observations of Lord Hoffmann in R. v. Hertfordshire County Council, ex parte Green, supra note 1.
14. A number of other issues are a little less clear and will need to be resolved in later judgments. Most importantly, the Court refers in para. 44 to a person's right "to remain silent and not to contribute to incriminating itself". Does this mean that the right guaranteed by article 6 is both a right against self-incrimination and a right to silence or is silence allowed only where the answer would tend to incriminate? There is of course a difference between the two, the right to silence being broader (though contra see the - on this point clearly incorrect - judgment of Judge Martens in Saunders, supra note 13, at p. 351 (para. 4 of the dissent)) and operable even absent questioning which requires a person to incriminate themselves. The distinction is important in that many statutes which require a person to answer investigation authorities' questions simultaneously disallow the use of such testimony in any subsequent proceedings. If the right contained in article 6 protects self-incrimination alone then such provisions are compatible with the Convention; but if the right to silence is the true purpose of article 6 such statutes will clearly not pass muster. Moreover, case law in Canada, South Africa and the United States shows that where self-incrimination is established as the right to be protected there can be significant litigation over the adequacy of immunity provisions. This aspect of the decision in Funke is well beyond the scope of this note. It can be noted that the European Commission was prepared to rely on article 10 of the Convention (free expression) as the true source of a right to silence (an aspect of the right to express oneself being the right to refuse to express oneself): see K. v. Austria (App. No 17380/90), Series A, No. 255-B, decision of June 29, 1992, commented upon in Naismith, supra note 11. See also the decision of the Supreme Court of Ireland in Heaney v. Ireland, [1997] 1 I.L.R.M. 117 (S.C.) where (without reference to the European Convention) the right to free expression (art 40.6.1°.i of the Irish Constitution) was held to be the source of the right to silence. This case has since been accepted as admissible by the Fourth Chamber of the European Court of Human Rights under articles 6, 8 and 10.
15. See S.N. Fromell, The European Court of Human Rights and the Right of the Accused to Remain Silent: Can it be Invoked by Taxpayers?, [1994] BRIT. TAX REV. 598, 632.
16. This view is shared by I. Dennis, Instrumental Protection, Human Right or Functional Necessity? Reassessing the Privilege against Self-incrimination, (1995) 54 C.L.J. 342, 371-372.
17. This view is shared by Frommel, supra note 15, at pp. 620 and 631 and Naismifh, supra note 13 at p. 231. Naismith argues that the application of article 6 at such an early stage of the investigation totally cuts against the concept of criminal charge, and points out that in previous cases article 6 only applied when there were later substantive criminal charges arising out of the earlier pre-trial incident. Naismith criticises Funke on this ground and argues that a more stable basis for the actual holding in Funke is a right to silence derived as a corollary from the right of free expression. See also Heaney; supra note 14.
18. This much was accepted by the Commission and European Court of Human Rights in the later Saunders case, supra note 13.
19. See the quotation from Dennis, text infra note 22.
20. See Verbatim Record of the hearing held in the cases of Funke, Crémieux, Miailhe v. France on September 21, 1992 (Doc. 38721) at p. 6.
21. Supra note 1 at p. 325, para. 43.
22. Dennis, supra note 16, at pp. 372-373.
23. Engel v. The Netherlands (No. 1), Series A, No. 22, (1976) 1 E.H.R.R. 647, 678-679 para. 82 (ECtHR).
24. Société Sténuit v. France, Series A, No. 232-A, (1992) 14 E.H.R.R. 509 (ECommHR) (potential liability under French competition law was a maximum fine of FFr 5,000,000 or 5% of annual turnover).
25. Özturk, supra note 8, Umlauft v. Austria, (1995) 22 E.H.R.R. 76, Pfarrmeier v. Austria, (1995) 22 E.H.R.R. 175, Malige v. France, (1998) 28 E.H.R.R. 578 (ECtHR) (administrative docking of driver licence points upon commission of speeding offence).
26. See e.g., Bendenoun v. France, Series A, No. 284, (1994) 18 E.H.R.R. 54 (tax proceedings involving the levying of supplementary tax and penalties for tax evasion), S.M. v. Austria (App. no. 11919/86) (May 8, 1987) (ECommHR) (penalty for failure to file tax return a criminal matter).
27. See App. No 10949/94 v. Germany, (1988) 10 E.H.R.R. 129 (ECommHR).
28. X v. Austria, (1983) 32 D.R. 150.
29. Campbell and Fell v. United Kingdom, Series A, No. 80, (1984) 7 E.H.R.R. 165.
30. Benham v. United Kingdom, (1996) 22 E.H.R.R. 293 (ECtHR).
31. In Duhs v. Sweden, (1990) 67 D.R. 204, the question of whether the imposition of penalties for illegal parking pursuant to a decriminalising statute was "criminal" was left open. A useful survey and critique is to be found in S. STAVROS, THE RIGHTS OF ACCUSED PERSONS UNDER ARTICLE 6 OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS (1993). Stavros concludes, at p. 26, that "the generality of the pronouncement in Öztürk renders the task of identifying a viable criterion, on the basis of which to distinguish administrative from criminal wrong, almost impossible."
32. The Convention organs have been keen to attribute an autonomous meaning to the concept of "charge" in article 6, to ensure that the rights guaranteed by the Convention are meaningful and not illusory.
33. X. v. United Kingdom (App. no. 8233/78), (1979) 17 D.R. 122.
34. X. v. Ireland (App. no 9429/81), (1983) 32 D.R. 225; Ewing v. U.K. (App. no 11224/84), (1986) 10 E.H.R.R. 141.
35. Neumeister v. Austria, Series A, No. 8, (1968) 1 E.H.R.R. 91.
36. Wemhoff v. Germany, Series A, No. 7, (1968) 1 E.H.R.R. 55.
37. Eckle v. Germany, Series A, No. 51, (1983) 5 E.H.R.R. 556.
38. Deweer v. Belgium, Series A, No. 35, (1980) 2 E.H.R.R. 439.
39. Imbroscia v. Switzerland, Series A, No. 275, (1993) 17 E.H.R.R. 441, p. 455, para. 36.
40. British Columbia Securities Commission v. Branch, (1995) 123 D.L.R. (4th) 462, 498 (S.C.C.).
41. See e.g., Société Stenuit v. France, supra note 24 (company's challenge to competition law penalty under article 6(1)) and Air Canada v. United Kingdom, Series A, No. 316-A, (1995) 20 E.H.R.R. 150 (plaintiff airline company challenging confiscation order under article 6(1)). This conclusion is shared by Frommel, supra note 15, at p. 611.
42. See e.g., C. Tollefson, Ideologies Clashing: Corporations, Criminal Law and the Regulatory Offence, 30 OSGOODE HALL L.J. 705 (1991), p. 737.
43. See e.g., van Overbeek, infra note 128 (in relation to the enforcement of European Union competition law).
44. Case 374/87, [1989] E.C.R. 3283.
45. See also Branch, supra note 40 where a challenge was made to the powers of the British Columbia Securities Commission to compel the production of documents and oral testimony in relation to violations of the Securities Act. In cautioning against an interpretation of the right to silence which would render the task of the authorities too difficult to compel documentation and testimony, L'Heureux-Dubé J stated in her concurring opinion (at p. 495): "Given the profound asymmetries of information between market players and market regulators in the securities industry, such a reasonable alternative might very well require conferring upon securities regulators broad, intrusive and sweeping search and seizure powers. I raise this point to demonstrate why it is important not to contemplate Charter rights and principles in the abstract, without regard for the potential repercussions of certain conclusions on the enjoyment of other equally important Charter rights."
46. Ibid., at p. 3342, para. 155.
47. Supra note 20, at p. 7.
48. (1990) 67 D.L.R. (4th) 161 (S.C.C.), 230.
49. See also R. v. McKinlay Transport Ltd., (1990) 68 D.L.R. (4th) 568 (S.C.C.), 584.
50. For example, the European Union's competition rules do not provide for forcible entry, merely penalising non-compliance by a daily running fine: see J.M. Joshua, The Powers of the Commission: Efficiency and Swiftness in investigative procedures, in DROITS DE LA DÉFENSE ET DROITS DE LA COMMISSION DANS LE DROIT COMMUNAUTAIRE DE LA CONCURRENCE 12-13 (1994). This is a collection of papers delivered at a Symposium organised by the European Association of Lawyers (AEA) (hereinafter "AEA papers").
51. See also the Quebec employment standards legislation, reviewed in Comité Paritaire v. Potash, (1994) 115 D.L.R. (4fh) 702 (S.C.C.), which contained no powers of forcible entry in the case of refusal to allow admission to inspectors.
52. For example, in the proposals contained in the study conducted by Professor Mireille Delmas-Marty, CORPUS JURIS (1997), at p. 128, on the introduction of penal provisions for securing the financial interests of the European Union it is noted that Funke would prevent the introduction of a power to compel production of incriminating documents for use in criminal prosecutions, and recommends that appropriate search and seizure powers (noted not to be in conflict with Funke) should instead be conferred on Union officials.
53. For example, under Council Regulation 2057/82 1982 L220/1 (as amended) Member States of the European Union are required to take measures to supervise Union fishing rules, and to take administrative action and prosecution where violations of the rules are detected. The Regulation (and see also Commission Regulation 2807/83, OJ 1983 L270/1) requires for this purpose the keeping of logbooks which record catch amount, date, location, and gear. The log records will be used by national authorities for the purposes of supervising compliance with and facilitating prosecution for violation of Union fishing quotas. See, in general, R. R. CHURCHILL, EEC FISHERIES LAW 139 et seq. (1987).
54. Adopted by the Committee of Ministers on June 25, 1981 at the 335th meeting of the Ministers' Deputies.
55. See Recommendation No R. (87) 18 "Concerning the Simplification of Criminal Justice" adopted on September 17, 1987; and in respect of national reforms see e.g., Ordnungswidrigkeitsgesetz (Germany); Legge 689 of November 24, 1981 (Italy); Leg Dec No 433/82 of October 27, 1982 (Portugal); Act XIX of 1981 (Malta); Traffic Regulations (Administrative Environment) Act (WAHV) Bulletin of Acts, Orders and Decrees 300, 1989 (the Netherlands).
56. See also A. De Nauw, L'Évolution Législative vers un Système Punitif Administrative, [1989] REV. DROIT PÉNAL 337 (discussing decriminalisation of offences in Belgium), and the Danish report in Council of Europe, Implementation of the Right to a Fair Trial.... (Strasbourg: Council of Europe, 1993) H/SG (93)1 at p. 46.
57. Of course, simplified and speedier handling of cases is not the only reason for decriminalisation - in some jurisdictions the motivation will be a philosophical one: that the criminal law should only concern itself with acts which deserve the epithet "criminal". Such a view is left unaffected by considerations mentioned in the text.
58. See e.g., Heaney; supra note 14 (Ireland); §§136 and 55 Strafprozeßordnung (at the first formal questioning of an investigatee, the police must advise of right not say anything and trial witnesses cannot be forced to give incriminating evidence respectively) while the Bundesgerichtshof 'has held that it is a principle of German criminal procedure law that no one is obliged to incriminate him or herself (BGHSt 14, 358(364) (Germany); §41 Bundesgesetz über Bundesstrafrechtspfiege ("BGBSRP") provides the right to remain silent during the judicial investigation of a charge, while §79 provides the right not to incriminate oneself or relations at trial (Switzerland); Article 24 of the Constitution (Spain);
59. R. v. Director of Serious Fraud Office (ex p. Smith), [1993] A.C. 1, at p. 30.
60. See generally the opinion of Advocate-General Darmon in Orkem v. Commission, supra note 42 at pp. 3327-3330.
61. Ironically, just at the time when the Continental legal systems are attuning themselves more and more to the right to silence, a right more commonly associated with the common law tradition, there have been increasing calls by judges and enforcement officers in common law countries to abandon the right or severely modify it: see e.g., A.A.S. Zuckermann, The Right against Self-incrimination: An Obstacle to the Supervision of Interrogation, (1986) 102 L.Q.R. 43;
62. E.W. Thomas, The So-Called Right to Silence, (1991) 14 N.Z.U.L.R. 299, especially pp. 319 et seq.;
63. B. Robertson, The Right to Silence Ill-Considered, (1991) 21 VU.W.L.R. 139;
64. P. McLaughlin, Legal Restraints in Criminal Investigation, (1981) 17 IRISH JURIST (n.s.) 217;
65. J. Marrinan, Opinion: Right to Silence must Be Removed, IRISH TIMES, July 16,1997.
66. See e.g., Police and Criminal Evidence Act 1984 (United Kingdom), s. 61 (there are a variety of circumstances attaching to the taking of fingerprints, dependent either on the rank of officer involved and the existence of reasonable suspicion of offending; or the making of a charge against the person); Criminal Justice Act 1976, s. 6 (Ireland) (permitting the taking of fingerprints from persons detained for questioning under terrorist, emergency powers or serious criminal offending legislation). In both jurisdictions samples can be taken without consent. The Swedish Code of Judicial Procedure of 1942 (as revised) (as reproduced in American Series of Foreign Penal Codes, Sweden 117 (Vol. 24, 1979), chap. 28, s. 14, allows for the photographing and fingerprinting of detainees and arrested persons.
67. In Denmark, it would appear that an accused must submit to an examination of the body to verify whether traces are found of a fight in connection with rape: see V Greve, Denmark, in CRIMINAL PROCEDURE SYSTEMS IN THE EUROPEAN COMMUNITY 66 (C. van den Wyngaert et al., eds, 1993).
68. In Germany, blood tests and medical examinations are permissible if no detriment to health can be expected, while, irrespective of his consent, a suspect can be submitted to an examination of his or her body to verify relevant facts: see H.-H. Kühne, Germany, in C. van den Wyngaert, ibid..
69. See also chaps 28, ss. 12 and 13 of the Swedish Code of Judicial Procedure, supra note 55, at p. 117, for similar provisions. Section 63 of the United Kingdom Police and Criminal Evidence Act 1984 ("PACE") allows non-intimate items (defined in s. 65 and including samples of hair, nail, footprints, swabs from the body apart from intimate places though allowed from the mouth) to be taken by the police without consent. Intimate bodily samples (semen, blood, urine, saliva, pubic hair, dental impressions, bodily orifice swabs except swabs from the mouth) may only be taken with consent, but failure to provide them can be used to draw adverse inferences and as corroboration of other evidence of guilt: PACE, s. 62(10). See also the extensions to these powers contained in ss. 54-59 of the Criminal Justice and Public Order Act 1994. In relation to compulsory powers to examine the person and take blood and urine samples in Switzerland see §73 of the BGBSRP Section 487.05 of the Canadian Criminal Code allows a judge to issue a warrant to authorise the seizure of any bodily substance for DNA testing purposes. The constitutionality of the scheme was recently upheld by the Ontario Court of Appeal: R. v. F(S), (2000) 141 C.C.C. (3d) 225 (C.A.O.). New Zealand's Criminal Investigations (Blood Samples) Act 1995 provides a procedure for the taking of blood samples for DNA databanking in specified circumstances.
70. See e.g., article 40.1 of the Code of Criminal Procedure (Iceland) and the Criminal Evidence (Northern Ireland) Order 1988.
71. Under ss. 34-37 of the Criminal Justice and Public Order Act 1994 (United Kingdom) an array of provisions allow for the drawing of adverse inferences from an accused's failure to account for his movements, for objects, substances and marks, to mention facs when questioned or charged, or decision not to give evidence at his trial. J. Jowell et al., Public Law, (1995) 48 C.L.P 187, at pp. 210-211 speculated that this indirect form of compulsion would violate Funke and the Commission opinion in Saunders discussed below.
72. As we shall see shortly, however, the Court's judgment in John Murray, infra note 58 does not support such assertions.
73. (1996) 22 E.H.R.R. 29.
74. See e.g., Road Traffic Act 1961 (Ireland), s. 49; Road Traffic Act 1988 (United Kingdom), s. 6; §316 and 315c of the Strafgesetzbuch and §81a Strafprozeßordnung (Germany); s. 55 of the Road Traffic Act (Denmark). 60 Supra note 25.
75. X v. The Netherlands (App. no. 8239/78), decision of December 4, 1978.
76. The applicant in the X case argued that the drunk-driving law was incompatible with the right to be presumed innocent until proven guilty (article 6.2) and the right not to be subject to an interference with one's private life (article 8). The Commission rejected the first on the grounds that (a) it was reasonable for the authorities to take certain measures which affect a suspect where they involve only a minor interference such as a blood test; (b) Dutch law provided protections against arbitrary use of blood tests; (c) the use of blood tests throughout the member states of the Council of Europe in connection with traffic legislation. As to the second, the Commission held that any interference with the right to private life was justifiable in terms of article 8(2) (necessary for the protection of the rights of others).
77. Interestingly, Dennis, supra note 16, at p. 373 takes a similar view. However, he expresses the opinion that "such an extension would be a regrettable and dangerous development, taking the privilege into areas of the law of evidence where it has no business to be."
78. In D.P.P. v. Elliot, [1997] 2 I.L.R.M. 156 (H.C.), 159. McCracken J. held that section 15 of the Road Traffic Act 1994 (which permits a police officer to "require" a person admitted to hospital after a traffic accident and whom he suspects of having consumed an intoxicant to give a blood sample for alcohol content testing) was "a clear violation" of the right against self-incrimination. However, his Honour found it to be a reasonable interference with that right.
79. True, Funke involved documents not blood samples. But this distinction must be worthless because invasion of a person's body to obtain blood samples involves interference with a more intimate and important aspect of a person's privacy than an order to produce mostly commercial documents. Hence, if documents are protected, so too must be bodily samples. See also Elliot, supra note 63.
80. F.J. CHALOUPKA ET AL., ALCOHOL CONTROL POLICIES AND MOTOR VEHICLES FATALITIES 13-14 (1991).
81. See R.C. DENNEY, THE TRUTH ABOUT BREATH TESTS 3 (1970), referring to a 1927 British Medical Association Report, Tests for Drunkenness, and deploring the old system of observational tests as unreliable.
82. See also H.J. WALLS & A.R. BROWNLIE, DRINK, DRUGS AND DRIVING 147 (2nd ed., 1985), referring to a 1960 British Medical Association report calling for introduction of an objective test.
83. Supra note 26.
84. Taxpayers' Rights and Obligations: A Survey of the Legal Situation in OECD Countries 16 (1990), particularly Table 9(A), "Control and Search Powers of Tax Authorities".
85. Taxpayers' Rights and Obligations: A Survey of the Legal Situation in OECD Countries Ibid., Table 9(B), column 3 mentions in this regard Austria, the Netherlands, and the United States.
86. Frommel, supra note 15, at p. 623
87. (referring inter alia to the reports on the second subject of the 45th Congress of the International Fiscal Association, Barcelona, PROTECTION OF CONFIDENTIAL INFORMATION IN TAX MATTERS REPRODUCED IN CAHIERS DE DROIT FISCAL INTERNATIONAL VOL LXXVIB (1991)).
88. McKinlay Transport, supra note 47, at p. 583 (per Wilson J. for the Court). In this case a challenge was launched to compulsory production powers on the basis of section 8 of the Canadian Charter of Rights and Freedoms which protects against unreasonable search and seizure.
89. Ibid.
90. Vigneron et al., European Regulatory Lessons of the BCCI Collapse - the Case for Strengthening Financial Supervision, (1993) 13 Y.E.L. 263, at p. 266.
91. W. Howarth, Self-Monitoring, Self-Policing, Self-incrimination and Pollution Law, 60 M.L.R. 200 (1997), at pp. 227-228.
92. See e.g., Dennis, supra note 16 passim,
93. S. EASTON, THE CASE FOR THE RIGHT TO SILENCE (2nd ed., 1998), chapter 6,
94. and S. Sharpe, The Privilege against Self-incrimination: Do We Need a Preservation Order?, 27 ANGLO-AMER. L. REV. 494 (1998).
95. Murphy v. Waterfront Commission of New York Harbor, 378 U.S. 52, 55 (1964).
96. See Verbatim Record, supra note 20, at pp. 6-7 where Professor Trechsel shows how Commissioner Soyer's proposition is refuted by such mundane self-incriminatory requirements as a driver's obligation to report traffic accidents to the police and his or her part in them (if any) even if such could lead to conviction; breathalyser and blood tests for drunk drivers; and submission of tax returns and maintenance of tax-related records for a number of years.
97. Supra note 1 at pp. 328-329, para. 56.
98. See e.g., Salabiaku v. France, Series A, No. 141-A, (1988) 13 E.H.R.R. 379.
99. See e.g., Perez de Rada Cavanilles v. Spain, (1998) 29 E.H.R.R. 109, 120 (the right to court "is not absolute; it is subject to limitations permitted by implication ..." (emphasis added)).
100. 116 U.S. 616 (1886).
101. Ibid., at pp. 631-632 and p. 630 respectively.
102. 201 U.S. 43 (1906). See more recently Bellis v. United States, 471 U.S. 85 (1974).
103. The legislation gave personal immunity from prosecution to a witness forced to testify to criminal acts.
104. Supra note 83, at 69. In United States v. White, 322 U.S. 694 (1944) the Court extended Hale v. Henkel, holding that where a production order was made in relation to documents held by an unincorporated trade union, the Fifth Amendment had no application.
105. Including that the privilege was intended to be a personal one, was therefore not intended to protect third parties, such as the corporation of which the person testifying happened to be an agent/representative, etc.
106. Supra note 83, at p. 70.
107. Ibid., at p. 74.
108. 322 U.S. 694, 700 (1944).
109. 335 U.S. 1 (1948), at p. 32. In later cases, the Court emphasised that it would not countenance abuse of the required records doctrine, and that only those schemes which were "essentially regulatory" would fall within the doctrine. Thus, in Marchetti v. United States, 390 U.S. 38 (1968) and Grosso v. United States, 390 U.S. 62 (1968), the Court held that wagering tax laws breached the Fifth Amendment to the extent that they required gamblers to register as such with federal authorities. The Court noted that due to the existence of comprehensive anti-gambling statutes at both the federal and state level, requiring disclosure of their status presented a real and appreciable hazard of self-incrimination to gamblers.
110. Schmerber v. California, 384 U.S. 757 (1966).
111. Following through on this logic, the Court in South Dakota v. Neville, 459 U.S. 553 (1983) held that the admission into evidence of a suspect's refusal to submit to a blood-alcohol test did not offend the right against self-incrimination: if it was permissible for the state to compel the taking of a sample, it could be no less legitimate for it to permit refusal of the test, yet making refusal an offence itself.
112. Supra note 91, at pp. 762-763.
113. Interestingly, while the Court did not consider any argument from the effectiveness of the alcohol monitoring regime in relation to the argument based on the Fifth Amendment, the Court did state (p. 771) when considering such an argument based on the Fourth Amendment (right against unreasonable searches), "[extraction of blood samples for testing is a highly effective means of determining the degree to which a person is under the influence of alcohol." For criticism of the United States case law see Easton, supra note 75, chap. 8.
114. Ibid., at p. 771.
115. See e.g., United States v. Wade, 388 U.S. 318 (1967) (line-up); Gilbert v. California, 388 U.S. 263 (1967), United States v. Mara, 410 U.S. 19 (1973), United States v. Euge, 444 U.S. 707 (1980) (handwriting exemplars), United States v. Dionisio, 410 U.S. 1 (1973) (voice exemplar).
116. 427 U.S. 463 (1976).
117. 426 U.S. 391 (1976).
118. 487 U.S. 201 (1988).
119. 487 U.S. 99 (1988).
120. 448 U.S. 242 (1980).
121. W. LAFAVE & J.H. ISRAEL, CRIMINAL PROCEDURE 427 (2nd ed., 1992).
122. Interestingly, Judge Martens in his dissent in Saunders, supra note 13, observed (at p. 354, para. 11 of the dissent) that "under the Fifth Amendment to the United States Constitution .... there is a right to remain silent, but in principle not a right to refuse to hand over documents, let alone an absolute right to do so".
123. For a discussion of the United States and Canadian law with a good overview of the theories used to justify the distinction see C. Tollefson, Corporate Constitutional Rights and the Supreme Court of Canada, 19 QUEEN'S L.J. 309 (1993).
124. See e.g., Branch, supra note 40, at p. 479 (per Sopinka, Iacobucci JJ).
125. R. v. Amway Corporation Inc., (1989) 56 D.L.R. (4th) 309 (S.C.C.).
126. Supra note 40, at pp. 481-482 (per Sopinka, Iacobucci JJ, other judges concurring). In the earlier case of Thomson Newspapers v. Canada, (1990) 67 D.L.R. (4th) 161 (S.C.C.), 299, Sopinka J had stated: "No right to remain silent or privilege against self-incrimination will avail to protect against seizure of documents."
127. Ibid., at p. 482 (para. 45) (per Sopinka, Iacobucci JJ). Interestingly, in supporting the distinction, the Court noted that the need for such a distinction was impelled by the law related to the execution of search warrants: and the court concluded that "the common law right to silence which protected communications by a suspect to the police [could not be] extended to documents of a suspect".
128. Ibid., at p. 482 (paras 47-8) (per Sopinka, Iacobucci JJ) (obiter).
129. (1997) 144 D.L.R. (4th) 193 (S.C.C.).
130. See e.g., R. v. Fitzpatrick, (1995) 129 D.L.R. (4th) 129 (S.C.C.); R. v. Manna, (1994) 382 A.P.R. 182 (PE.I.S.C, T.D.); R. v. Kent, (1991) 279 A.P.R. 181 (N.S.C.C); R. v. Hackett, (1988) 206 A.P.R. 353 (P.E.I. Prov. Ct.).
131. Baron v. Canada, (1993) 99 D.L.R. (4th) 350 (S.C.C.); McKinlay Transport, supra note 47; R. v. Norway Insulation Inc., (1995) 29 C.R.R. (2d) 163 (Ont. Ct. (Gen. Div.)) (ITA generally regulatory, though some powers criminal).
132. Québec v. 143471 Canada Inc., (1994) 167 N.R. 321 (S.C.C.) and 143471 Canada Inc. v. Québec (Attorney-General), (1994) 115 D.L.R. (4th) 188 (Que. C.A.) (Meals and Hotel Tax Act (Qué.) read with the Ministère du Revenu Act (Qué.)).
133. See e.g., R. v. Wholesale Travel Group, (1991) 67 C.C.C. (3d) 193 (S.C.C.) (federal Competition Act provisions on misleading and false representations made to the public); Ontario Chrysler (1977) Ltd. v. Ontario, (1990) 67 D.L.R. (4th) 148 (Ontario's Business Practices Act).
134. Re Belgoma Transportation Ltd and Director of Employment Standards, (1985) 51 O.R. (2d) 509 (Ont. C.A.) (Ontario's Employment Standards Act).
135. R. v. Bichel, (1986) 33 D.L.R. (4th) 254 (B.C.C.A.).
136. Branch, supra note 40; Robinson v. Ontario (Securities Commission), (1993) 110 D.L.R. (4th) 166 (Ont. Ct. (Gen. Div.)).
137. Re Leard, (1994) 114 D.L.R. (4th) 135 (Ont. C.A.).
138. Bertram S. Miller v. The Queen, (1986) 31 D.L.R. (4th) 210 (F.C.A.) (though here reference is made to administrative rather than regulatory statutes).
139. Arnold v. Harris, (1993) 107 D.L.R. (4th) 88 ((Ont. Ct. (Gen. Div.)).
140. See e.g., Thomson Newspapers v. Canada, supra note 106, where Wilson J was of the view that competition legislation was criminal in nature, not regulatory, while La Forest and L'Heureux-Dubé JJ were of the view that it was essentially regulatory in nature.
141. In the later case of Wholesale Travel, supra note 113 at p. 241, Cory J. emphatically concluded that competition legislation "in all its aspects is regulatory in character". This conclusion was agreed with by Chief Justice Lamer.
142. The Court has justified this distinction on a number of grounds: the different manifestation of regulatory and criminal offending - much regulatory offending is victimless, while others can only be established after in-depth investigation, while in the case of true crimes there is usually a corpus delicti; the information which leads to proof of commission of a regulatory offence very often lies exclusively in the control and knowledge of the person being regulated, while in criminal cases there are usually other independent sources of evidence; the deterrence rationale functions differently in regulatory and criminal contexts; the realities of economics which affect regulatory law enforcement; many regulatory offences occur in the context of a licence system - as such a quid pro quo for the licence is agreement, either tacit or explicit, that governmental authorities have full powers of investigation; the stigma attaching to regulatory offences is significantly less than that attaching to true crimes; regulatory legislation is generally aimed at ensuring compliance with rules established for the general welfare, while criminal offences are designed to condemn and punish inherently wrongful conduct. The relevant cases and critiques of the distinction are discussed in A.S. Butler, Regulatory Offences and the Bill of Rights, in RIGHTS AND FREEDOMS: THE NEW ZEALAND BILL OF RIGHTS ACT 1990 AND THE HUMAN RIGHTS ACT 1993 (G. Huscroft & P. Rishworth, eds., 1995), chap. 9.
143. Supra note 110, at pp. 141-142 (paras 29-30).
144. See also the judgment of L'Heureux-Dubé J. in Branch, supra note 40, at pp. 492-500 (paras 75-94).
145. Her ladyship was prepared to adopt a restrictive approach to the right to silence in the context of an enquiry into securities irregularities on the basis that securities legislation is regulatory in nature. And see too Thomson Newspapers, supra note 106.
146. Ibid., at p. 143 (para. 35).
147. Ibid., at pp. 143-144 (para. 36).
148. Ibid., at p. 146 (para. 42).
149. Ibid., at p. 145 (para. 39).
150. Ibid., at p. 150 (para. 51).
151. There is quite an amount of literature on the application of the right against self-incrimination to European Union competition law, both prior to and after the Funke decision: see e.g., G. Contaldi, Diritti della Difesa nella Fuse Precontenziosa dei Procedimenti Comunitari Antitrust, 11 RIV. DIR. INT'L 992 (1994);
152. G. Cumming, Otto v. Post Bank and the Privilege against Self-incrimination in Enforcement Proceedings of EC Articles 85 and 86 before the English Courts, [1995] E.C.L.R. 400;
153. X.A. de Mello, Droit de la concurrence et droits de l'homme, [1993] REV. TRIM. DROIT EUR. 601;
154. L. Goffin, Jurisprudence: Otto v. Postbank, 30 CAH. DR. EUR. 459 (1994);
155. M.S.E. Helali, La Convention europeenne des droits de l'homme et les droits fraņcais et communautaire de la concurrence, [1991] REV. TRIM. DROIT EUR. 335;
156. C.S. KERSE, Caselaw: OTTO V. POSTBANK, 31 C.M.L. REV. 1375 (1994);
157. K.P.E. Lasok, The Privilege against Self-incrimination in Competition Cases, 11 E.C.L.R. 90 (1990);
158. E. Raffaelli, I Poteri di Indagine in materia di Concorrenza della Commissione CEE e dell'Autorità Garante, [1992] RIV. DIR. CIV. 585;
159. D. Rinoldi, Diritto comunitario, società commerciali e diritti della difesa, 3 RIV. INT'L DEI DIR DELL'UOMO 529 (1990);
160. D. Rinoldi, Poteri di inchiesta della Commissione comunitaria nel campo della concurrenza, [1990] DIR. COMM. INT'L 769;
161. W.B.J, van Overbeek, The Right to Remain Silent in Competition Investigations: The Funke decision of the European Court of Human Rights makes revision of the ECJ's case law necessary, 15 E.C.L.R. 127 (1994).
162. The starting point was Stauder (Case 29/69), [1969] E.C.R. 419, para. 7, followed in Internationale Handelsgesellschaft (Case 11/70), [1970] E.C.R. 1125, para. 4 and many subsequent cases.
163. See Internationale Handelsgesellschaft, ibid., para. 4 and Nold (Case 4/73), [1974] E.C.R. 491, para. 4 respectively.
164. See e.g., Rutili (Case 36/75), [1975] E.C.R. 1219, Heylens (Case 222/86), [1987] E.C.R. 4097, Dow Benelux (Case 85/87), [1989] E.C.R. 3137, Hoechst (Case 227/88), [1989] E.C.R. 2859.
165. See e.g., Johnston v. Chief Constable of the RUC (Case 222/84), [1986] E.C.R. 1651, para. 18, Hoechst, ibid., para. 13.
166. See e.g., Comm Dec 92/163 (Tetra Pak II) OJ 1992 L72/1, where a fine of ECU 75m was imposed by the Commission.
167. To this effect, see the historical material traversed in the opinion of Advocate-General Warner in AM&S v. Commission (Case 155/79), [1982] E.C.R. 1575 and agreed with by Advocate-General Darmon in Orkem, supra note 42, at p. 3326, para. 93.
168. Some reason for doubt has been expressed by Professor Kerse, supra note 130, and Cumming, supra note 130 at p. 404, but most commentators are of the view that article 6 applies.
169. See e.g., Orkem, supra note 44, at p. 3350, para. 30.
170. Ibid.
171. Ibid.
172. C-60/92 [1993] E.C.R. 5683.
173. Kerse, supra note 128, at p. 1378.
174. See e.g., Joshua, supra note 48, at p. 34.
175. Contra O. Lieberknecht, The Request for Information and the Rights of Defence, in AEA Papers, supra note 48, at p. 48 who argues that Germany's Bundeskartellamt has managed to adequately enforce competition law even though the right against self-incrimination is enjoyed by investigatees.
176. Supra note 134, at p. 1621.
177. Joshua, supra note 48, at p. 34.
178. Of course, the Court of Justice is free, as Advocate-General Darmon in Orkem pointed out, supra note 44, p. 3338, para. 140, to adopt an interpretation of article 6 of the Convention "which does not coincide exactly with that given by the Strasbourg authorities, in particular the European Court of Human Rights". If the Court is persuaded that the Convention organs have erred in not adopting a more graduated approach to the right against self-incrimination, perhaps it might pursue this option: see S. Baldi, Giurisprudenza comunitaria e diritti della difesa, 9 RIV. INT'L DEI DIRITTO DELL'UOMO 354 (1996), p. 362.
179. Certainly, the Court felt free to not follow the lead of the United Nations Human Rights Committee's views in Toonen v. Australia, [1994] 1-3 INT'L HUMAN RIGHTS R. 97,
180. in Grant v. South-West Trains, (1998) 3 BHRC 578 (E.C.J.), 595, paras 43-47, on the issue of sexual orientation discrimination.
181. See e.g., T. Jestaedt, The Right to Remain Silent in EC Competition Procedure, in AEA Papers, supra note 48, beginning at p. 118;
182. S. Nash & M. Furse, Self-incrimination, Corporate Misconduct, and the Convention on Human Rights, [1995] CRIM. L.R. 854, at p. 861;
183. and van Overbeek, supra note 128, at 127.
184. Joined cases T-305/94 et al., April 20, 1999 (CFI, 3rd Chamber, extended composition).
185. Ibid., at para. 429.
186. Ibid., at para. 448.
187. Supra note 58.
188. Ibid., at pp. 60-61, para. 47.
189. Ibid., at p. 63, para. 54.
190. I note in passing that decisions in the United States (Griffin v. California, 380 U.S. 609 (1965)) and in Canada (R. v. Noble, (1997) 146 D.L.R. (4th) 385 (S.C.C.)) take a wholly different line from the European Court of Human Rights holding that adverse inferences from silence are a violation of the right to silence.
191. 153 Supra note 58 at p. 61, para. 49. A similar principle was applied by the Court in Serves v. France, (1997) 28 E.H.R.R. 265 where it was held that the requirement that a witness take an oath to tell the truth or suffer the imposition of a fine was not a violation of the right against self-incrimination, because taking the oath did not preclude the witness from pleading the self-incrimination immunity in relation to potentially incriminating questions. Thus, since there was no legal compulsion to incriminate, the right was not breached.
192. (1994) is E.H.R.R. 393.
193. Ibid., at pp. 427-428, para. 61.
194. Ibid., para. 62.
195. Supra note 13. The Commission Opinion was reported at (1994) 18 E.H.R.R. CD 23.
196. The Court referred to its earlier judgment in Fayed v. United Kingdom, supra note 154 The Court reasoned that the purpose of the Companies Act powers was investigative only. The powers were intended to ascertain facts; appearing before the inspectors therefore did not involve the determination of any criminal charge within the meaning of article 6.1. Interestingly, one of the reasons proffered by the Court (at para. 67) was that to hold article 6 applicable would "in practice unduly hamper the effective regulation in the public interest of complex financial and commercial activities".
197. Memorial of the United Kingdom Government in Saunders v. United Kingdom, submitted on December 27, 1995 (Doc no 50983), at p. 39 and at App. 9, pp. 4-5, 6.
198. Ibid., at p. 26.
199. Ibid., at p. 27.
200. Ibid.
201. Ibid., at p. 28.
202. Supra note 13 at pp. 337-338, paras 68-69. In the John Murray case, supra note 58, the majority referred (at p. 60, para. 46) to the right to silence as being aimed at "avoiding miscarriages of justice".
203. Ibid., at p. 338 (paras 70 et seq.). The Court noted the English Court of Appeal's statement that the interviews formed a significant part of the prosecution case.
204. In a passage which resonates with that of Commissioner Soyer's dissent to the Commission's opinion in Funke, the Commission observed, supra note 1, at pp. 329-330, para. 71: "It cannot be compatible with the spirit of the Convention that varying degrees of fairness apply to different categories of accused in criminal trials. The right to silence ... must apply as equally to alleged company fraudsters as to those accused of other types of fraud, rape, murder, or terrorist offences."
205. Ibid., at p. 330 (para. 74).
206. Indeed, the Court's rejection of a variable scale of application of the right confirms the view taken above that the Court in Funke had also implicitly rejected a flexible application of the right. This is certainly also the view of Judge Martens in his dissent in Saunders: see supra note 13, at p. 354 (para. 11 bis).
207. Ibid., at p. 338 (para. 69).
208. See text above at between notes 54 and 56.
209. Supra note 13, at pp. 354-355 (para. 12 of the dissent).
210. A contrary view is expressed by Michael O' Boyle, Freedom from self-incrimination and the right to silence: a Pandora's box?, in MELANGES FUER ROLV RYSSDAL (forthcoming). O'Boyle argues that there are special features of Funke which allow it to still stand. He argues that the nature of the documents in issue there were such as to be "arguably ... as incriminating as an admission statement". But surely, a blood or urine sample used to convict a person of over-the-limit driving offences is equally if not more incriminating being substantially the most important single item in such a prosecution. Moreover, if compulsory powers cannot be deployed to obtain information which incriminates, what is the point of the powers? Second, O'Boyle argues that the sanction imposed on Funke was coercive and this allows it to be distinguished from other cases. Granted in John Murray there was no obligation to assist the authorities by answering questions put, and consequently there were no penalties in the case of refusal to answer. But in fact in most situations refusals to provide information to investigating authorities are sanctioned by hefty penalties; if this were not the case then cooperation would often not be forthcoming. Thus, the range of cases in which the element of coercion present in Funke would be missing is minimal. In sum, the features advanced by O'Boyle as distinguishing Funke from other cases are not convincing.
211. Ibid., at p. 337 (para. 67). Judge de Meyer (at pp. 346-347) objected to this departure from Funke noting that the Act which empowered the DTI inspectors' questioning specifically provided that evidence obtained by such questioning could be used against an interviewee in subsequent proceedings. See also the concurring opinion of Judges Morenilla, Repik and Pettiti (at pp. 347-349).
212. Ibid., at pp. 349-350.
213. Ibid., at pp. 354-355 (para. 12 of the dissent).
214. Indeed, it is interesting to note that Judge Martens approved of the Commission approach in Funke: see ibid., at p. 354 (para. 11 of the dissent).
215. Ibid., at pp. 361-362 (para. 25 of the dissent) (emphasis in original).
216. All quotes found ibid., at p. 350.
217. Ibid., at p. 340 (para. 74).
218. Ibid., at pp. 337-338 (para. 69, first paragraph).
219. See the Memorial of the United Kingdom Government, supra note 159 passim
220. and the Comments of the interveners, Liberty, received July 31, 1993 (Doc. no. 53,848) at pp. 9-17.
221. Judge Martens also appears to see this possibility: see, supra note 13 at pp. 354-355 (para. 12 of the dissent).
222. In that regard, the speech of Lord Hoffmann in ex parte Green, supra note 1, at p. 782 provides a good start. In that case, Lord Hoffmann effectively declined to apply Funke, observing that the Court's reasoning was obscure and preferring to regard Saunders as the better authority to follow in terms of the true meaning of the right against self-incrimination under article 6. In ex parte Green, the House of Lords considered whether permitting environmental waste officers to require a person to provide factual information (even if potentially incriminating) was contrary to article 6. The House concluded that, absent the threat of use of such information at trial, there was no violation (even if failure to comply was an offence).