Letter: Hiding behind right to silence

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The Independent Online
From Mr Ray Clarke

Sir: The judgment by the Court of Appeal in the Guinness fraud trial (Law Report; "Guinness defendants' appeals dismissed", 28 November) will no doubt bring a sigh of relief from the newly created Environment Agency and the green lobby. The relief may be temporary given that it will be considered by the European Court and a decision is expected early next year.

The appeal considered the powers of DTI inspectors under the Companies Act and the obligation to answer questions on pain of sanctions contrary to the principle of the right to silence.

Under similar provisions in environmental legislation, regulators such as the NRA (and from next April the Environment Agency) have the power to demand answers to questions about polluting incidents. The Environment Act has recently increased the penalties for failing to provide such information.

I can testify to the value of these provisions in a recent water pollution case I was prosecuting, affecting some 20km of river and which resulted in a major fish kill. The power to demand information led to an industrial chemical manufacturer admitting responsibility and being successfully prosecuted.

If the European Court comes to a contrary decision to that of the Court of Appeal, the implications could be far wider than the fight against commercial fraud. The Environmental Agency and any right-minded citizen would hardly be likely to agree that polluters should be able to hide life-threatening mistakes or catastrophic pollution behind the right to silence.

Yours faithfully,

Ray Clarke

Solicitor

Nabarro Nathanson

Doncaster

28 November

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