THE RIGHT AGAINST SELF-INCRIMINATION, UNEXPLAINED WEALTH ORDERS: THE CONSTITUTION OF TRINIDAD AND TOBAGO, ENGLISH LAW AND THE EUROPEAN CONVENTION ON HUMAN RIGHTS - A COMPARATIVE ANALYSIS

By Dr Andre Alexander

ABSTRACT

This article explores constitutional issues arising from the Civil Asset Recovery and Management and Unexplained Wealth Act 2019 (CARMUW) in Trinidad and Tobago, and the European Convention on Human Rights implications of the interesting English case of National Crime Agency v Mrs. A [2018] EWHC 2534 (Admin).

The potential conflict between Unexplained Wealth Orders (UWOs) and the right against self-incrimination is examined. In particular, the article assesses whether the relevant Trinidad and Tobago legislation can be challenged under the constitutional protections. The article also assesses the English legal framework for similar protection against self-incrimination in the context of the protection provided under Article 6 of the European Convention on Human Rights (ECHR) in the context of civil proceedings.

OVERVIEW OF CIVIL ASSET RECOVERY AND MANAGEMENT AND UNEXPLAINED WEALTH ORDERS

The Trinidad & Tobago Civil Asset Recovery and Management and Unexplained Wealth Act 2019 (CARMUW) introduces a significant legal tool in the country for dealing with wealth achieved unlawfully. One of the Act’s main provisions is the Unexplained Wealth Order (UWO), which is defined in Part 1, Section 3(1)(d) of the Act as:

 "An order of the High Court made under section 65 of the Act requiring the respondent to pay to the State the assessed difference between the total value of the respondent's wealth and the respondent's lawfully acquired wealth".

Section 65 further provides that if the High Court finds that the respondent's wealth goes beyond what can be accounted for by lawful means, the respondent is liable to pay the "unexplained wealth amount" into the Confiscated Assets Fund. The salient feature of this provision is that it shifts the burden of proof to the respondent to prove that his or her wealth was acquired lawfully.

CONSTITUTIONAL RIGHT AGAINST SELF-INCRIMINATION

The imposition of a UWO, it is suggested, raises important constitutional concerns, particularly in relation to the right against self-incrimination.

Under CARMUW, a UWO is enforceable if the respondent cannot provide evidence that his or her assets are lawfully acquired. However, what happens if providing such evidence incriminates the respondent? In this context, the Constitution of Trinidad and Tobago, specifically Article 5(2)(d), appears to provide robust protection as follows:

 "Parliament shall not authorise any court, tribunal, commission, board or other authority to compel a person to give evidence unless the person is afforded protection against self-incrimination and, where necessary, the right to legal representation."

As such, by this provision, respondents in UWO proceedings would be protected from being compelled to give evidence that could expose them to criminal liability.

THE ENGLISH EXAMPLE OF NATIONAL CRIME AGENCY v MRS A

By contrast, it is useful to examine how this issue might be addressed in England. In context, the case of National Crime Agency v Mrs A [2018] EWHC 2534 (Admin) is illustrative.

The English Criminal Finances Act 2017, which amended the Proceeds of Crime Act 2002 (POCA), introduced UWOs for targeting and recovering assets suspected of having been acquired unlawfully, particularly by politically exposed persons (PEPs) and those participating in serious crimes.

Section 1 of the Criminal Finances Act 201 inserts Sections 362A to 362T into Part 8 of the Proceeds of Crime Act 2002 (POCA), creating the legal framework for UWOs.

Section 362A of POCA, defines a UWO as an order made by the High Court requiring a person to declare the nature and extent of their interest in specified property.

UWOs can be applied for by enforcement agencies such as: the National Crime Agency (NCA);  Her Majesty's Revenue and Customs (HMRC); the Financial Conduct Authority (FCA);  the Serious Fraud Office (SFO) and the Crown Prosecution Service (CPS).

The enforcement thresholds for a UWO under section 362B of POCA are that the High Court needs to be satisfied that: The defendant is a politically exposed person (PEP), a person associated with serious crime, or a person associated with a person involved in such activities; the value of the property in question exceeds £50,000 and there are reasonable grounds for suspecting that the respondent's lawful income would not be enough to buy the property.

If a respondent fails to comply with a UWO (by failing to provide a satisfactory explanation of the source of the assets, for example), this may result in the property being confiscated under civil recovery proceedings.

NATIONAL CRIME AGENCY V MRS A [2018] EWHC 2534 (ADMIN)

In the interesting case of National Crime Agency v Mrs A [2018] EWHC 2534 (Admin), the English National Crime Agency (NCA) proceeded with UWOs against Zamira Hajiyeva ("Mrs A") concerning a property and other assets in the UK.

Mrs A had argued that complying with the UWO could breach her privilege against self-incrimination as both she and her husband were at risk of prosecution. But, the court rejected this argument based on section 14(1) of the UK Civil Evidence Act 1968, which only applies the privilege in criminal proceedings.

The court also held that the UWO procedure in the UK, especially in regard to property matters, overrides such privileges as under Section 13(1) of the UK Fraud Act 2006, a person is protected from incriminating himself or his spouse or civil partner for the purposes of offences under the Act and related offences, but must co-operate with certain civil proceedings relating to property.

While the case suggests that English law does not extend the right against self-incrimination to civil proceedings, it seems though that this position could still be challenged under Article 6 of the European Convention on Human Rights (ECHR) as Article 6 establishes the right to a fair trial, which includes the right against self-incrimination in both civil and criminal settings.

ECtHR PROTECTIONS IN CIVIL PROCEEDING IN ENGLAND

For example, in J.B. v. Switzerland (2001), the ECtHR ruled that compelling a person to give evidence in civil proceedings that could lead to criminal liability violates his right to a fair trial under Article 6. Also, in Funke v France (1993): The Court found that forcing a person to give incriminating evidence in customs-related civil proceedings violated the ECHR.

What this means is that even in civil cases such as UWOs, defendants in England could argue that Article 6 protects them against self-incrimination, particularly where the proceedings involve heavy financial penalties or could lead to prosecution.

UWOs IN TRINIDAD & TOBAGO AND THE TRINIDAD & TOBAGO CONSTITUTION

Trinidad and Tobago does not any equivalent to section 13 of the UK Fraud Act 2006, which removes the right against self-incrimination in civil proceedings.  As such, the right under Article 5.2 (d) of the Constitution suggests that defendants in UWO cases in the country could challenge the constitutionality of CARMUW, particularly if complying with a UWO would force them to provide incriminating evidence.

ENGLISH UWOs AND THE EUROPEAN CONVENTION ON HUMAN RIGHTS

In the English context, Article 6 of the ECHR suggests an avenue that is similar to Trinidad & Tobago’s Constitution’s Article 5.2 (d) in that respondents can argue that UWOs violate their right to a fair trial, especially if the proceedings have criminal consequences or exposure. Therefore, while national law may not protect against self-incrimination in civil proceedings, the protections of the ECHR may still apply.

REFERENCES

Legislation:

Civil Asset Recovery and Management and Unexplained Wealth Act, Act No. 8 of 2019 (Trinidad and Tobago). Part 1, Section 3(1)(d) and Section 65. Available at: https://news.gov.tt/sites/default/files/E-Gazette/Gazette%202019/Acts/Act%20No.%208%20of%202019.pdf.

Constitution of Trinidad & Tobago. Available at: https://www.oas.org/juridico/english/mesicic3_tto_constitution.pdf.

Fraud Act 2006 (UK), c. 35, Section 13(1) -  Available at: https://www.legislation.gov.uk/ukpga/2006/35/section/13).

UK Criminal Finances Act 2017 (UK), c. 22, Section 1 (inserting Sections 362A–362T into the Proceeds of Crime Act 2002).  Available at: https://www.legislation.gov.uk/ukpga/2017/22/contents/enacted.

European Convention on Human Rights (ECHR), Article 6 (right to a fair trial). Available at: https://www.echr.coe.int/documents/convention_eng.pdf.

Cases:

National Crime Agency v Mrs A [2018] EWHC 2534 (Admin), [2018] All ER (D) 145 (Oct).  Available at: https://www.bailii.org/ew/cases/EWHC/Admin/2018/2534.html.

J.B. v. Switzerland, No. 31827/96, European Court of Human Rights, 3 May 2001.   Available at: https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-59449%22]}.

Funke v France (1993) No. 10828/84, European Court of Human Rights, 25 February 1993.  Available at: https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-57809%22]}.

Additional Resources:

Proceeds of Crime Act 2002 (UK), c. 29, Sections 362A–362T (as amended by the Criminal Finances Act 2017).  Available at: https://www.legislation.gov.uk/ukpga/2002/29/contents).