PROCEDURE

The case originated in an application (no. 21413/02) against the United Kingdom of Great Britain and Northern Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a United Kingdom national, Mr Yash Pal Kansal (“the applicant”), on 21 May 2002.

The applicant, who had been granted legal aid, was represented by Mr A. Barone, a solicitor practising in Bovington. The United Kingdom Government (“the Government”) were represented by their Agent, Ms E. Willmott of the Foreign and Commonwealth Office, London.

Insofar as the case was declared admissible, the applicant alleged that the statements obtained under compulsion in bankruptcy proceedings should not have been admitted in criminal proceedings against him. He invoked Article 6 § 1 of the Convention.

The application was allocated to the Fourth Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1.

On 28 January 2003, the Court communicated the applicant's complaint about self-incrimination to the respondent Government and declared inadmissible the remainder of the application. By a decision of 23 September 2003, the Court declared the remainder of the application admissible.

The applicant but not the Government filed observations on the merits (Rule 59 § 1). The Chamber decided, after consulting the parties, that no hearing on the merits was required (Rule 59 § 3 in fine).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicant was born in 1947 and lives in Oldham.

From 1977, the applicant ran a company which operated 20 chemist shops. Following financial problems, the company went into liquidation in February 1987. On 20 May 1987, a bankruptcy petition was presented against the applicant and on 11 March 1988, a bankruptcy order was made.

On 29 July 1988, the applicant was publicly examined by the official receiver. Under section 291 of the Insolvency Act 1986, the applicant was obliged to answer the questions put to him by the official receiver and if he failed to comply without reasonable excuse, he would have been guilty of contempt of court and liable to punishment by a fine or imprisonment.

On 16 March and 23 March 1988, a building society advanced 150,000 pounds sterling (GBP) and GBP 116,250 respectively to the applicant. On 23 March 1988, the applicant's wife collected part of the advance, GBP 104,000, and took it to India in a bin liner.

The applicant was subsequently charged with two offences of obtaining property by deception contrary to section 15(1) of the Theft Act 1968 on the grounds that he had misled the building society into advancing money by false representations regarding his income, his debts and the bankruptcy proceedings against him. He was also charged with two offences of removing property required to be delivered to the official receiver and failing to account for the loss of property while bankrupt contrary to section 354(2) and (3) of the Insolvency Act 1986.

At the applicant's trial in February 1992, the prosecution introduced as evidence the transcript of the examination of the applicant by the official receiver in the bankruptcy proceedings. The applicant submitted that the transcript was inadmissible under section 31 of the Theft Act 1968 which provides that a statement or admission made by a person answering questions in proceedings for the administration of any property or for an account of any property or dealings with property is not admissible in evidence against that person. However, the trial judge ruled the evidence admissible under section 433 of the Insolvency Act 1986 which provided that statements made in pursuance of a requirement imposed by the Act could be used in evidence against the maker of the statement. The full transcript was placed before the jury and in his summing up, the judge stated that the transcript “could be very important”.

On 18 February 1992, the applicant was convicted of the four offences charged and was sentenced to 15 months' imprisonment. The applicant appealed against conviction and on 12 May 1992, the Court of Appeal dismissed his appeal deciding, inter alia, that the transcript of the bankruptcy examination was admissible under section 433 of the Insolvency Act 1986 which abrogated the privilege against self-incrimination. Leave to appeal was refused by the Court of Appeal and by the House of Lords.

On 27 June 1995, the Royal Pharmaceutical Society of Great Britain decided to remove the applicant's licence to practise as a pharmacist on the grounds of unfitness due to his involvement in the deception connected with his bankruptcy proceedings and a previous reprimand relating to the cleanliness of his premises.

On 27 April 1998, the Criminal Cases Review Commission (“CCRC”) referred the applicant's case back to the Court of Appeal due to changes in the domestic law on obtaining mortgage advances by false statements. On 20 June 2000, the Commission added the ground that, following the decision of the European Court of Human Rights in Saunders v. the United Kingdom (judgment of 17 December 1996, Reports of Judgments and Decisions 1996-VI) and the introduction of the Human Rights Act 1998, the admission of answers given under compulsion during the bankruptcy examination may have been in breach of Article 6 of the Convention and rendered the applicant's conviction unsafe.

On 24 May 2001, the Court of Appeal overturned the applicant's conviction on the grounds that the answers given by the applicant in his examination by the official receiver had been wrongly admitted at trial and in breach of Article 6 of the Convention. The court found that the Human Rights Act 1998 could apply retrospectively. It certified a point of law to the House of Lords as to whether the Human Rights Act 1998 could apply retrospectively in appeals arising from a reference by the CCRC.

The Crown appealed to the House of Lords against the decision of the Court of Appeal. On 29 November 2001, the House of Lords allowed the appeal, holding that they were bound to follow the earlier decision of the House in R v. Lambert [2001] 3 WLR 206, which had decided that the Human Rights Act 1998 could not apply retrospectively to allow a defendant whose trial took place before the Act came into force to rely on a breach of the Convention in a later appeal.