Permission to appeal – new point not taken below – fresh evidence – Human Rights – Article 6 ECHR – privilege against self-incrimination
In evidence given as a witness at a criminal trial B admitted having provided inside information to gamblers for reward over a long period when a jockey licensed by the respondent (JC). Disciplinary proceedings were brought by the JC resulting in B’s disqualification from involvement in racing for 5 years. An action claiming that this penalty was excessive was dismissed by <A
href=”https://www.5rb.com/5rb/casereports/detail.asp?case=285″ target=_parent>Richards J. B appealed. On this application he sought permission to add to his appeal a new ground, that use of the evidence at the criminal trial violated his privilege against self-incrimination, and the disciplinary process was thus unfair. He applied for a disclosure order in support of the new ground.
Whether B should be permitted to add a ground of appeal alleging unfairness and breach of Article 6 ECHR, and obtain disclosure in support.
Dismissing the application, (1) this was not a new ground in the sense that the word is used in the appellate jurisdiction, but a new claim, and inconsistent with the approach below; (2) in the absence of evidence as to why the point was not taken before, the court would not exercise its discretion to allow it; (3) the claim based on Article 6 was doomed to failure as there had been no compulsion, and in any event B had a fair opportunity to raise objection in the disciplinary process; (4) the application was far too late; (5) it would call for a trial in the Court of Appeal sitting as a court of first instance, in 14 days’ time. In addition, the requirements of Ladd v Marshall were not satisfied.
The finding that B’s evidence was not compelled is unsurprising; his case was easily distinguished from Saunders v United Kingdom (1997) 23 EHRR 313. The decision is perhaps most interesting for its heavy emphasis on the fact that Article 6 depends on the fairness of the process as a whole. The judge took the view that B had in any case been fairly tried as he had an opportunity to challenge the admission of the evidence in the disciplinary process.