2. Reputational damage Three Rivers No.6 (2004) UKHL The general right to fair treatment Re Officer L (2007) UKHL 36.

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1 THE REQUIREMENTS OF FAIRNESS Generally In Public Inquiries 1. Privilege against self-incrimination. a. the basic liberty Blunt v Park Lane Hotel Ltd [1942] 2 KB 253; Rank Film Distributors v Video Information Centre [1982] AC 380; b. the statutory framework s.14 Civil Evidence Act 1968; s.22 Inquiries Act 2005; c. the scope of the privilege Den Norske Bank ASA v Antonatos [1999] QB 271; Saunders v United Kingdom (1996) EHRR Reputational damage Three Rivers No.6 (2004) UKHL The general right to fair treatment Re Officer L (2007) UKHL The provision of safeguards: a. Attorney General s undertakings; b. legal representation; c. notice of adverse materials and findings; d. hearing procedures. The Leveson Inquiries 5. Who may be under the spotlight, and what may be the relevant requirements of fairness: a. the first stage press ethics; b. the second stage instances of wrongdoing. 6. What indications are there that they will be met: a. seminars; b. gathering evidence; c. core participants. 1

2 Blunt v Park Lane Hotel Ltd Goddard LJ enunciated the rule in civil proceedings as follows at page 257: The rule is that no one is bound to answer any question if the answer thereto would, in the opinion of the judge, have a tendency to expose the deponent to any criminal charge, penalty or forfeiture which the judge regards as reasonably likely to be preferred or sued for. 2

3 Rank Film Distributors Ltd v Video Information Centre Lord Wilberforce said at page whatever direct use may or may not be made of information given or material disclosed, under the compulsory process of the court, it must not be overlooked that, quite apart from that, its provision or disclosure may set in train a process which may lead to incrimination or may lead to the discovery of real evidence of an incriminating character..the party from whom disclosure is asked is entitled, on established law, to be protected from these consequences. 3

4 The Civil Evidence Act Privilege against incrimination of self or spouse or civil partner. (1)The right of a person in any legal proceedings other than criminal proceedings to refuse to answer any question or produce any document or thing if to do so would tend to expose that person to proceedings for an offence or for the recovery of a penalty (a)shall apply only as regards criminal offences under the law of any part of the United Kingdom and penalties provided for by such law; and (b)shall include a like right to refuse to answer any question or produce any document or thing if to do so would tend to expose the spouse or civil partner of that person to proceedings for any such criminal offence or for the recovery of any such penalty. 4

5 The inquiries Act Privileged information etc (1)A person may not under section 21 be required to give, produce or provide any evidence or document if (a)he could not be required to do so if the proceedings of the inquiry were civil proceedings in a court in the relevant part of the United Kingdom, or (b)the requirement would be incompatible with a Community obligation. 5

6 Den Norske Bank v Antonatos Waller LJ held (at p. 289A): A witness is entitled to claim the privilege in relation to any piece of information of evidence on which the prosecution might wish to rely in establishing guilt. And, as it seems to me, it also applies to any piece of information or evidence on which the prosecution would wish to rely in making its decision whether to prosecute or not. 6

7 Saunders v United Kingdom 70. It has not been disputed by the Government that the applicant was subject to legal compulsion to give evidence to the Inspectors. He was obliged under sections 434 and 436 of the Companies Act 1985 (see paragraphs above) to answer the questions put to him by the Inspectors in the course of nine lengthy interviews of which seven were admissible as evidence at his trial. A refusal by the applicant to answer the questions put to him could have led to a finding of contempt of court and the imposition of a fine or committal to prison for up to two years (see paragraph 50 above) and it was no defence to such refusal that the questions were of an incriminating nature (see paragraph 28 above). However, the Government have emphasised, before the Court, that nothing said by the applicant in the course of the interviews was selfincriminating and that he had merely given exculpatory answers or answers which, if true, would serve to confirm his defence. In their submission only statements which are self-incriminating could fall within the privilege against self-incrimination. 71. The Court does not accept the Government's premise on this point since some of the applicant's answers were in fact of an incriminating nature in the sense that they contained admissions to knowledge of information which tended to incriminate him (see paragraph31 above). In any event, bearing in mind the concept of fairness in Article6, the right not to incriminate oneself cannot reasonably be confined to statements of admission of wrongdoing or to remarks which are directly incriminating. Testimony obtained under compulsion which appears on its face to be of a non-incriminating nature - such as exculpatory remarks or mere information on questions of fact- may later be deployed in criminal proceedings in support of the prosecution case, for example to contradict or cast doubt upon other statements of the accused or evidence given by him during the trial or to otherwise undermine his credibility. Where the credibility of an accused must be assessed by a jury the use of such testimony may be especially harmful. It follows that what is of the 7

8 essence in this context is the use to which evidence obtained under compulsion is made in the course of the criminal trial. Three Rivers No.6 Lord Scott said The preparation of the evidence to be submitted and the submissions to be made to the Inquiry on behalf of the Bank were for the purpose of enhancing the Bank's prospects of persuading the Inquiry that its discharge of its public law obligations under the Banking Acts in relation to BCCI was not deserving of criticism and had been reasonable in the circumstances. The presentational advice given by Freshfields and counsel for that purpose was advice "as to what should prudently and sensibly be done in the relevant legal context" (Balabel v Air India supra at p.330). The "relevant legal context" was the Bingham Inquiry and the question whether the Bank had properly discharged its public law duties under the Banking Acts. The presentational advice falls, in my opinion, squarely within the policy reasons underlying legal advice privilege. 44. I would be of the same opinion in relation to presentational advice sought from lawyers by any individual or company who believed himself, herself or itself to be at risk of criticism by an inquiry, whether a coroner's inquest, a statutory inquiry under the 1921 Act or an ad hoc inquiry such as the Bingham Inquiry. The defence of personal reputation and integrity is at least as important to many individuals and companies as the pursuit or defence of legal rights whether under private law or public law. The skills of professional lawyers when advising a client what evidence to place before an inquiry and how to present the client and his story to the inquiry in the most favourable light are, in my opinion, unquestionably legal skills being applied in a relevant legal context. 8

9 Re Officer L Lord Kerr said, at paragraph 22 The principles which apply to a tribunal's common law duty of fairness towards the persons whom it proposes to call to give evidence before it are distinct and in some respects different from those which govern a decision made in respect of an article 2 risk. They entail consideration of concerns other than the risk to life, although as the Court of Appeal said in paragraph 8 of its judgment in the Widgery Soldiers case, an allegation of unfairness which involves a risk to the lives of witnesses is preeminently one that the court must consider with the most anxious scrutiny. Subjective fears, even if not well founded, can be taken into account, as the Court of Appeal said in the earlier case of R v Lord Saville of Newdigate, ex p A [2000] 1 WLR It is unfair and wrong that witnesses should be avoidably subjected to fears arising from giving evidence, the more so if that has an adverse impact on their health. It is possible to envisage a range of other matters which could make for unfairness in relation of witnesses. Whether it is necessary to require witnesses to give evidence without anonymity is to be determined, as the tribunal correctly apprehended, by balancing a number of factors which need to be weighed in order to reach a determination. 9

10 The Salmon Principles 1. Before any person becomes involved in an inquiry, the Tribunal must be satisfied that there are circumstances which affect him and which the Tribunal proposes to investigate. 2. Before any person who is involved in an inquiry is called as a witness, he should be informed of any allegations which are made against him and the substance of the evidence in support of them. 3. (a) He should be given an adequate opportunity of preparing his case and of being assisted by his legal advisers. (b) His legal expenses should normally be met out of public funds. 4. He should have the opportunity of being examined by his own solicitor or counsel and of stating his case in public at the inquiry. 5. Any material witness he wishes called at the inquiry should, if reasonably practicable, be heard. 6. He should have the opportunity of testing by cross-examination conducted by his own solicitor or counsel any evidence which may affect him. 10

11 The Inquiry Rules (1) The chairman may send a warning letter to any person (a)he considers may be, or who has been, subject to criticism in the inquiry proceedings; or (b)about whom criticism may be inferred from evidence that has been given during the inquiry proceedings; or (c)who may be subject to criticism in the report, or any interim report. (2) The recipient of a warning letter may disclose it to his recognised legal representative. (3) The inquiry panel must not include any explicit or significant criticism of a person in the report, or in any interim report, unless (a)the chairman has sent that person a warning letter; and (b)the person has been given a reasonable opportunity to respond to the warning letter. 14. (1) Subject to paragraphs (2), (3), and (4) the contents of a warning letter are to be treated as subject to an obligation of confidence owed (a)separately by each member of the inquiry team to the recipient of the warning letter; (b)by the recipient to the chairman; and (c)by the recipient s recognised legal representative to the chairman (where the recipient has disclosed the letter under rule 13(2)). (2) The obligation of confidence may be waived in writing at any time by the chairman or, as the case may be, by the recipient of the warning letter. (3) The inquiry panel s obligation of confidence arising under this rule ends when the inquiry report is signed in accordance with section 24(4) of the Act. (4) All other obligations of confidence arising under this rule end when the inquiry report is published. 11

12 (5) A breach of the obligation referred to in paragraph (1) is actionable at the suit of the person to whom the obligation is owed, subject to the defences applying to actions for breach of confidence. 15. (1) Subject to paragraphs (3) and (4), the warning letter must (a)state what the criticism or proposed criticism is; (b)contain a statement of the facts that the chairman considers substantiate the criticism or proposed criticism; and (c)refer to any evidence which supports those facts. (2) The chairman may provide copies of the evidence referred to with the warning letter, if he considers it appropriate to do so. (3) Where the warning letter is sent to a person under rule 13(1)(b) (a)the requirements of paragraph (1) do not apply, but (b)subject to paragraph (4), the letter must refer to the evidence from which criticism could be inferred. (4) Paragraphs (1) to (3) are subject to any restrictions on the disclosure of evidence, documents or information pursuant to sections 19 and 23 of the Act, or resulting from a determination of public interest immunity. Ashley Underwood QC Landmark Chambers This seminar paper is made available for educational purposes only. The views expressed in it are those of the author. The contents of this paper do not constitute legal advice and should not be relied on as such advice. The author and Landmark Chambers accept no responsibility for the continuing accuracy of the contents. 12

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