1. Where an individual doctor has provided information pursuant to his employer/provider’s duty under the Regulated Activities Regulations 2014, would the subsequent deployment of that information in criminal proceedings offend any individual doctor’s claim to the right against self-incrimination and/or violate Article 6? This short paper seeks to set out the European perspective.

Article 6 states:

In the determination of… any criminal charge against him, everyone is entitled to a fair….hearing by an independent and impartial tribunal.

2. It can be difficult to discern a rigorous pattern to the European cases. Whereas UK courts build on a strict approach as to precedent and a legal analysis of what may or may not be legitimate or proportionate, the ECHR takes a more holistic view in determining what a fair trial may or not may be.

3. The ECHR guarantees the right to a fair trial under Article 6 of the Convention. It does not necessarily review the domestic court’s approach to evidence.

“It does not lay down rules on the admissibility of evidence as such, which is therefore primarily a matter for regulation under national law. The court therefore cannot exclude as a matter of principle and in the abstract that unlawfully obtained evidence of the present kind may be admissible. It can only to ascertain whether Mr. Schenk’s trial as a whole was fair.” -Schenk v Switzerland [1988] 13 EHRR 242 (see Saunders v UK 23 EHRR 313 at 328).

4. It is important therefore to note that UK decisions in this field (particularly criminal) will be based on a more forensic approach as to the admissibility of particular pieces of evidence .

Right to silence

5. Where the registered person is notifying a service user of a notifiable safety incident under Regulation 20 of the 2014 Regulations, it will be almost inevitable that no individual doctor connected with that care would then have been charged with any criminal offence arising out of the incident.

In the infamous Guinness fraud case, when Mr Saunders was questioned by the DTI prior to the police becoming involved, there was no charge. Accordingly, compulsory questioning under s. 434-436 of the Companies Act 1985 did not engage Article 6 (see Saunders v UK [1996] 23 EHRR 313 at 337). The fairness within Article 6 is anchored to the trial and as such extra-judicial questions would not provide an argument to Mr Saunders to refuse to answer (See R v Hertfordshire CC exparte Green Environmental Industries Ltd [2000] 2 AC 412 at 423).

Privilege against self-discrimination

6. At the time of the decision, the general proposition taken from the Saunders v UK [1996] UK 23 EHRR 313 case was that answers obtained by a compulsory process are not admissible at trial as offending against the right against self incrimination. Such an argument could be deployed here. Is it sustainable?

As has already been stated however (in a previous paper), the 2014 Regulations do not compel the individual doctor to do anything. He/she is under the very practical but nevertheless compelling constraints to comply with his/her ethical duty under Good Medical Practise to provide the patient with a full account. Refusal to provide information for the provider to comply with Regulation 20 will expose the individual to real risks of being referred to the GMC, disciplinary proceedings and/or facing dismissal. There is therefore a practical compulsion on the doctor to provide the information to the provider.

In Saunders v UK, Mr Saunders, the Chief Executive of Guinness in 1981 was suspected of an unlawful share support operation to facilitate a takeover of Distillers. Mr Saunders was questioned under ss 434-436 of the Companies Act 1985 by DTI inspectors and his answers were used at trial.

The Court recalls that, although specifically not mentioned in Article 6 of the Convention, the right to silence and right not to incriminate oneself are generally recognized international standards which lie at the heart of the notion of a fair procedure under Article 6. The rationale lies, inter alia, in the protection of the accused against improper compulsion by the authorities thereby contributing to the avoidance of miscarriage of justice and to the fulfillment of the aims of Article 6. The right not to incriminate oneself, in particular, presupposes that the prosecution in a criminal case seek to prove their case against the accused without resort to evidence obtained through methods of coercion or oppression in defiance of the will of the accused. In this sense, the right is closely linked to the presumption of innocence contained in Article 6 (2) of the Convention.

7. The ECHR went on to find that contrary to his right against self incrimination, Mr Saunders had been subjected to oppressive questioning and coercion. He was questioned on nine occasions between 10th February 1987 and 12th June 1987 (although he had his own lawyer with him at all times). The police then became involved thereafter. As a matter of principle, the ECHR went on to say:

[74] Nor does the Court find it necessary to, having regard to the above assessment as to the use of the interviews during the trial, to decide whether the right not incriminate oneself is absolute or whether infringement may be justified in certain circumstances.

It does not accept the Governments’ argument that the complexity of corporate fraud and the punishment of those responsible could justify such a marked departure as that which occurred in the present case from one of the basic principles of fair procedure. Like the Commission it considers that the general requirements of fairness contained in Article 6 including the right not to incriminate himself apply to criminal proceedings in respect of all types of criminal offences without distinction from the most simple to the most complex. The public interest cannot be invoked to justify the use of answers compulsorily obtained in a non-judicial investigation to incriminate.

8. Saunders v UK contains a number of serious flaws and was significantly criticized in Brown v Stott [2003] 1 AC 681:

(1) It omits to give due weight to Murray v UK where the rights under question were found to be qualified. Indeed, the Court in Saunders dubiously left open whether the rights were absolute [74].

(2) By labeling the rights as ones that “lie at the heart of the notion of a fair trial”, the ECHR had committed itself to the answer before reviewing legitimacy or proportionality (see Lord Hope in Brown v Stott at p 721B-C).

(3) It provides a blank refusal of the UK’s argument that (i) fraud is complex stating all crime should be equal and (ii) the public interest required the legislation without real argument.

(4) In effect, the ECHR adjudged the answers to be lawfully obtained but failed to fully examine the procedure for their admission at trial (see Lord Hope in Brown at 721 D-E).

(5) The test anchored in UK law (R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532 invites a more forensic approach:

(a) Does the derogation from the general rule serve a legitimate aim?

(b) Is the derogation proportionate in that it only interferes at a level necessary to achieve that aim?

Accordingly, the weight to be attached to Saunders v UK (including the interpretation given to it Archbold [2015]) is to be approached with caution. The decision appears to concentrate on the centre outwards (the “rights lie at the heart of a notion of a fair procedure”) rather than examining context, interference, legitimacy and proportionality.

9. In Brown v Stott, Lord Bingham was at pains to point out that the boundaries of any shared treaty required careful scrutiny.

…the Convention contains no express guarantee of a privilege against self-incrimination. Thus the right we have to consider is an implied right. While it cannot be doubted such a right must be implied, there is no treaty provision which expressly governs the effect or extent of what Is to be implied [704C-D]

Brown v Stott has now been endorsed by the EHRR in O’Halloran and Francis v UK [2008] EHRR 21. Applying the principles above, one would expect the Courts to apply the test of legitimacy and proportionality.

Residual Convention Test

The conduct has “destroyed the essence of the privilege”

10. It is to be noted that this suggests a quasi-factual/legal test compared to the test in Daly of proportionate interference. Two examples may be of interest :

(1) In Allan v UK [2003], a suspect in a robbery, who had previously exercised his right to silence, was placed in a cell with an informant. The informant asked questions and obtained from him an admission to murder. The test as to whether “the essence of the privilege” had been destroyed was impliedly raised but the case was perhaps decided on the simple grounds that any confession was obtained by subterfuge (i.e. “improper compulsion”). Unsurprisingly, this was in breach of Article 6.

(2) In Heaney v McGuiness v Ireland [2001] 33 EHRR 12, the applicants were arrested in October 1990 relatively close to an explosion at a British Army/UDA checkpoint in which 5 soldiers and one civilian died. They were issued with requests under s. 52 of the Offences against the State 1939 to disclose their whereabouts over specific periods [some 24 hrs after the events in question]. They declined and were accordingly imprisoned.

11. In that case, McGuinness and Heaney were deemed charged at the time of the request as being “substantially affected” at that time. As for any infringement against the right against self-incrimination, the Court found:

….[the] protections could only be relevant to the present complaints if they could effectively and sufficiently reduce the degree of compulsion imposed by s. 52 of the 1939 Act to the extent that the essence of that provision [the privilege against self-incrimination] at issue would not be impaired by the domestic provision

In effect, the breach of the right in question went to its essence so as to “destroy the privilege”

12. Interestingly, in all the Dublin courts all the way up to the Supreme Court, the interference with the right against self incrimination was considered legitimate and proportionate.

Implications for the duty of candour

13. (1) Regulation 20 (duty of candour) does compel the registered person (the “provider”) to provide all the information at his disposal. As discussed, this will exert an indirect compulsion on the individual doctor to cooperate in providing that information.

(2) If there is incriminating material it is likely that disclosure by the individual doctor will include material at the heart of the matter. He/she is being exposed to provide a comprehensive statement as to his/her involvement. It would therefore be arguable that the “essence of the privilege” would be lost, i.e. that his/her right to the privilege has been completely removed from him.

(3) The right is a fundamental [albeit qualified] right. Disclosure would emasculate the right not to incriminate oneself (for example) later during the ordinary course of a criminal investigation or at inquests (See Rule 22 of the Coroners Rules 2013).

14. However, one only needs to read Montgomery to see how far medical law has travelled in the last decade. The impetus in all areas of medical law now is to accommodate as much as possible patients’ rights to know, patients’ access to information and above all patient autonomy. It is for this underlying principle that it would be my prediction that the European Courts will find the interference with the right against self incrimination to be legitimate and proportionate.

15. Further, the test [of “destroying the essence of the privilege”] was further discussed in O’Halloran and Francis v UK [2008] 46 EHRR 397 at [412]:

“In examining whether a procedure has extinguished the very essence of the privilege against self incrimination, the court will have regard, in particular to the following elements :

(i) The nature and degree of compulsion

(ii) The existence of any safeguards in the procedures

(iii) The use to which any material so obtained is put”

[52] citing Jalloh [101].

16. The ECHR recognized that the regulatory regime in which questions about car ownership and driving was relevant (see O’Halloran [57]). In this case, the regime set up by the Regulated Activities Regulations 2014 has emanated from a long history of public debate and concern. That debate has included a significant moral element that patients should not be kept in the dark about treatment provided to them. The patient is at the centre of the debate whereas the individual doctor is but one cog in that regime. The regime itself is based on honesty, transparency and candour. The privilege runs wholly contrary to those aims.

17. O’Halloran has endorsed Brown v Stott, which is important. Further, the public mood is with the patient. If the test at Brown v Stott is applied, it would seem likely that claiming the right not to incriminate oneself would not succeed.

18. If the test of “destroying the essence of the privilege” is applied, it can be seen that there is scope for a more broad brush approach and the potential for unpredictability.