EUROPEAN COMMISSION OF HUMAN RIGHTS

                       Application No. 19187/91

                            Ernest Saunders

                                against

                          the United Kingdom

                       REPORT OF THE COMMISSION

                       (adopted on 10 May 1994)

                           TABLE OF CONTENTS

                                                                 page

I.    INTRODUCTION

      (paras. 1-19) . . . . . . . . . . . . . . . . . . . . . . . . 1

      A.  The application

          (paras. 2-4). . . . . . . . . . . . . . . . . . . . . . . 1

      B.  The proceedings

          (paras. 5-14) . . . . . . . . . . . . . . . . . . . . . . 1

      C.  The present Report

          (paras. 15-19). . . . . . . . . . . . . . . . . . . . . . 2

II.   ESTABLISHMENT OF THE FACTS

      (paras. 20-58). . . . . . . . . . . . . . . . . . . . . . . . 3

      A.  Particular circumstances of the case

          (paras. 20-50). . . . . . . . . . . . . . . . . . . . . . 3

      B.  Relevant domestic law

          (paras. 51-58). . . . . . . . . . . . . . . . . . . . . . 7

III.  OPINION OF THE COMMISSION

      (paras. 59-77). . . . . . . . . . . . . . . . . . . . . . . .10

      A.  Complaint declared admissible

          (para. 59). . . . . . . . . . . . . . . . . . . . . . . .10

      B.  Point at issue

          (para. 60). . . . . . . . . . . . . . . . . . . . . . . .10

      C.  Article 6 of the Convention

          (paras. 61-76) )  . . . . . . . . . . . . . . . . . . . .10

      CONCLUSION

      (para. 77). . . . . . . . . . . . . . . . . . . . . . . . . .14

      CONCURRING OPINION OF MR. LOUCAIDES . . . . . . . . . . . . .15

      DISSENTING OPINION OF MR. SCHERMERS . . . . . . . . . . . . .16

APPENDIX I       HISTORY OF THE PROCEEDINGS . . . . . . . . . . . .18

APPENDIX II      DECISION ON ADMISSIBILITY. . . . . . . . . . . . .19

I.    INTRODUCTION

1.    The following is an outline of the case as submitted to the

European Commission of Human Rights, and of the procedure before the

Commission.

A.    The application

2.    The applicant is Ernest Saunders, a British citizen born in 1935

and resident in London. He is represented by Mr. Paul Williams, a

solicitor practising in London.

3.    The application is directed against the United Kingdom.  The

respondent Government are represented by Mr. Iain Christie as Agent,

from the Foreign and Commonwealth Office.

4.    The case concerns the complaint of the applicant that the use at

his trial of statements made by him to the Department of Trade and

Industry (DTI) inspectors under their compulsory powers deprived him

of a fair hearing. It raises issues under Article 6 para. 1 of the

Convention.

B.    The proceedings

5.    The application was introduced on 20 July 1988 and registered on

11 December 1991.

6.    On 31 August 1992, the Commission decided to communicate the

application to the respondent Government for their written observations

on the admissibility and merits of the application.

7.    The Government submitted their written observations on

12 January 1993.  The applicant submitted his written observations in

reply on 25 February 1993.

8.    On 7 May 1993, the Commission decided to invite the parties to

an oral hearing on the admissibility and merits.

9.    The Government submitted further written observations on

29 September 1993 and the applicant submitted supplementary

observations on 19 November 1993.

10.   At the hearing which was held on 7 December 1993, the Government

were represented by  Mrs. Audrey Glover as Agent, Mr. Michael Baker

Q.C., Counsel, Mr. Richard Horwell, Counsel, and Mrs. Tessa Dunstan,

Mr. Robert Burns, Mr. Gordon Dickinson and Mr. John Gardner as

Advisers.  The applicant was represented by Mr. Jonathan Caplan Q.C.,

Counsel, Mr. Justin Cole, Counsel, Mr. Paul Williams, Solicitor,

Mr. George Devlin, the applicant's agent and Ms. Laura Devlin as

assistant and translator. The applicant was also present.

11.   On 7 December 1993, the Commission declared admissible the

applicant's complaints relating to the use of the DTI statements at his

trial. The remainder of the application was declared inadmissible.

12.   The parties were then invited to submit any additional

observations on the merits of the application.

13.   On 14 February 1994, the Government submitted further

observations.

14.   After declaring the case admissible, the Commission, acting in

accordance with Article 28 para. 1 (b) of the Convention, placed itself

at the disposal of the parties with a view to securing a friendly

settlement of the case.  In the light of the parties' reactions, the

Commission now finds that there is no basis on which a friendly

settlement can be effected.

C.    The present Report

15.   The present Report has been drawn up by the Commission  in

pursuance of Article 31 of the Convention and after deliberations and

votes, the following members being present:

      MM.  C.A. NØRGAARD, President

           S. TRECHSEL

           A. WEITZEL

           G. JÖRUNDSSON

           J.-C. SOYER

           H.G. SCHERMERS

           H. DANELIUS

      Mrs. J. LIDDY

      MM.  L. LOUCAIDES

           J.-C. GEUS

           G.B. REFFI

           N. BRATZA

           I. BÉKÉS

           J. MUCHA

           D. SVÁBY

16.   The text of the Report was adopted by the Commission on

10 May 1994 and is now transmitted to the Committee of Ministers in

accordance with Article 31 para. 2 of the Convention.

17.   The purpose of the Report, pursuant to Article 31 para. 1 of the

Convention, is

      1)  to establish the facts, and

      2)  to state an opinion as to whether the facts found disclose

          a breach by the State concerned of its obligations under

          the Convention.

18.   A schedule setting out the history of the proceedings before the

Commission is attached hereto as Appendix I and the Commission's

decision on the admissibility of the application as Appendix II.

19.   The full text of the parties' submissions, together with the

documents lodged as exhibits, are held in the archives of the

Commission.

II.   ESTABLISHMENT OF THE FACTS

A.    Particular circumstances of the case

20.   On 1 October 1981, the applicant was appointed Managing Director

of Guinness PLC (his title later being changed to Chief Executive

Officer).

21.   On 2 December 1985, Argyll PLC, a large Scottish company,

announced a bid to take over Distillers PLC, which manufactured and

distributed alcoholic drinks.  Distillers PLC sought help from Guinness

in resisting the bid.  In January 1986, Guinness announced a counter-

bid.  There was a series of further increased offers from Argyll and

Guinness.  On 18 April 1986, the shareholders of Distillers accepted

the bid made by Guinness.

22.   On 9 May 1986, the applicant was appointed Deputy Chairman of

Guinness.  On 11 September 1986, the applicant was appointed Chairman.

23.   On 28 November 1986, the Department of Trade and Industry (the

DTI) appointed Inspectors to enquire into the Guinness acquisition of

Distillers under sections 432 and 442 of the Companies Act 1985.  The

enquiry, which commenced on 1 December 1986, involved investigation

into the allegations that Guinness had offered secret indemnities and

success fees to certain purchasers of Guinness stock.  The alleged

effect of those purchases was artificially to inflate or maintain the

Guinness share price, with the intention of inducing Distillers

shareholders to assent to the Guinness bid.

24. On 10 December 1986, the Inspectors began taking oral evidence.

Mr. Seelig, a director of the merchant bank advisers to Guinness, was

the first witness.

25.   On 12 January 1987, the DTI Inspectors notified the Secretary of

State of matters which they thought should be brought to his attention.

A note dated 13 January 1987 from the DTI Solicitor recorded the

existence of certain evidence in the hands of the Inspectors indicating

the possibility that criminal offences had been committed.

26.   On 12 January 1987, the DTI contacted Mr. John Wood at the

Director of Public Prosecutions' office (DPP). It was decided that the

proper thing to do was to let the Inspectors carry on with their

enquiry and to pass the transcripts on to the Crown Prosecution Service

(CPS) which had come into being in September 1986.

27.   On 14 January 1987, the applicant was dismissed from Guinness.

28.   On 29 January 1987, the Secretary of State required the

Inspectors to inform him of any matters coming to their knowledge as

a result of their investigation pursuant to section 437(1A) of the

Companies Act 1985.  Thereafter the Inspectors passed on to the

Secretary of State transcripts of their hearings and other documentary

material which came into their possession.

29.   On 30 January 1987, a meeting was held attended by the

Inspectors, the Solicitor and other officials of the DTI, Mr. John Wood

and a representative from the CPS.

30.   On 5 February 1987, Mr. John Wood, who had been appointed head

of legal services at the CPS, appointed a team of counsel to advise on

the criminal aspects of the investigation. Transcripts and documents

from the Inspectors were passed on to the team after receipt and

consideration by the DTI.

31.   The applicant was interviewed by the Inspectors on nine

occasions: on 10, 11, 20 and 26 February, 4-5 March, 6 May, and

11-12 June 1987. At these interviews the applicant was accompanied by

his legal representatives.

32.   On or about a date between 1 and 5 May 1987, the police were

formally asked by the DPP's office to carry out an investigation. The

transcripts and documents obtained as a result of the Inspectors'

interviews were passed on to the police from about the start of May

1987.

33.   On 6 May 1987, the applicant was arrested by the police. In his

evidence at the applicant's trial, the police officer in charge of the

investigation explained that he had learned that the applicant had dual

nationality, had or was about to sell his house in England and was

resident in Switzerland where he was then living. He therefore was

concerned that the applicant might abscond on learning that a criminal

investigation had started.

34.   On 7 May 1987, the applicant was charged with three offences

concerning the destruction of documents.

35.   On 13 October 1987, the applicant was charged with 37 offences.

A further two charges were added on 11 July 1988.

36.   The applicant and his co-defendants were arraigned before the

Crown Court on 27 April 1989. Each defendant pleaded not guilty to the

counts on the indictment.

37.   On 21 September 1989, two separate trials were ordered by the

trial judge in the Crown Court, Mr. Justice Henry, in view of the large

number of counts and the number of defendants (7).

38.   From 6 to 16 November 1989, the court held a voir dire following

the application of one of the applicant's co-defendants, Mr. Parnes,

to rule the DTI transcripts inadmissible. Parnes argued, principally,

that the statements obtained during three interviews before the

Inspectors should be excluded:

i. pursuant to section 76 of the Police and Criminal Evidence Act 1984

(PACE) on the basis that they had been obtained by oppression or in

circumstances which were likely to render them unreliable;

ii. pursuant to section 78 of PACE because of the adverse effect the

admission of the evidence would have on the fairness of the proceedings

having regard to the circumstances in which it was obtained.

39.   In a ruling given on 21 November 1989, Mr. Justice Henry held

that the transcripts were admissible.  He found that as a matter of

construction of the relevant statute Inspectors could ask witnesses

questions that tended to incriminate them, the witnesses were under

a duty to  answer such questions and the answers were admissible in

criminal proceedings. He rejected Parnes' assertion that the Inspectors

should have given a warning against self-incrimination. He was

satisfied that there was no element of oppression involved in the

obtaining of the evidence and that the answers were not obtained in

consequence of anything said or done which was likely to render them

unreliable in all the circumstances existing at the time.

40.   From 22 to 24 January 1990, the court held a voir dire following

the application of the applicant to rule inadmissible the DTI

transcripts on the basis that they should be excluded either as

unreliable under section 76 of PACE  or pursuant to section 78 of PACE

because of the adverse effect the admission of the evidence would have

on the fairness of the proceedings having regard to the circumstances

in which it was obtained. Reliance was placed on the applicant's

alleged ill-health at the time and on the fact that two interviews had

taken place after the applicant had been charged.

41.   In his ruling of 29 January 1990, Mr. Justice Henry rejected the

defence argument as to the applicant's medical condition.  He did

however exercise his discretion pursuant to section 78 to exclude the

evidence from the two post-charge interviews on the grounds that the

applicant's attendance could not be said to be voluntary, and it could

not be said to be fair to use material obtained by compulsory

interrogation after the commencement of the accusatorial process.

42.   The jury for the applicant's trial was empanelled on

16 February 1990. These proceedings involved the applicant and three

co-defendants.  The applicant faced 15 counts including, inter alia,

8 counts of false accounting contrary to section 17(1)b of the Theft

Act 1968, 2 counts of theft and 2 counts of conspiracy to contravene

section 13(1)(a)i of the Prevention of Fraud (Investments) Act 1958.

43.   During the trial, the prosecution referred to the statements made

by the applicant in the course of interviews to the DTI Inspectors in

order to establish the state of the applicant's knowledge and to refute

evidence given by the applicant to the jury. In his summing-up to the

jury, the judge also compared and contrasted what the applicant had

said in court with the answers which he had given to the Inspectors.

44.   On 22 August 1990, the applicant was convicted of 12 counts. On

28 August 1990, he received an overall prison sentence of five years.

45.   In the second set of proceedings concerning the other co-

defendants, further challenge was made to the admissibility of the DTI

transcripts on the ground, inter alia, that there was an abuse of

process in that there was misconduct by the Inspectors and/or the

prosecuting authorities in the use of the Inspectors' statutory powers

for the purpose of constructing a criminal case. It was alleged by one

of the co-defendants, Mr. Seelig, that there was a deliberate delay in

charging the accused in order that the Inspectors could use their

powers to obtain confessions.  In support of this application,

Mr. Seelig also sought by way of witness summons discovery of documents

and correspondence between the DTI, the Inspectors, the CPS and the

police, including the minutes of the meeting of 30 January 1987.

46.   In a ruling given on 10 December 1990, Mr. Justice Henry refused

the application by way of witness summons to compel discovery of

documents alleged to reveal this abuse, finding that there was no prima

facie case of abuse by either the Inspectors or the prosecuting

authorities. He had heard evidence from both the Inspectors and the

police officer in charge of the criminal investigation. In a ruling

given on 14 December 1990, the judge rejected the application for a

stay, finding that there had been no abuse of the criminal process in

the questioning of the defendants or in the passing of the depositions

to the prosecuting authorities or in their conduct of the prosecution.

He saw nothing improper or sinister in the decision by Mr. Wood not to

involve the police until the beginning of May. He concluded rather that

proper use had been made of the statutory powers. The judge also

refused an application to exclude the evidence of the DTI interviews

under section 78 of PACE as constituting evidence which had such an

adverse effect on the fairness of the proceedings that the court ought

not to admit it.

47.   On appeal by Mr. Seelig, the Court of Appeal in a judgment dated

2 May 1991 upheld the trial judge's ruling as to the admissibility of

the DTI interviews.

48.   The applicant applied for leave to appeal against conviction and

sentence.  He argued, inter alia, that the trial judge had misdirected

the jury as to the meaning and effect of section 151 of the Companies

Act 1985, and that he had misdirected the jury as to the weight to be

given to the evidence given by R., the finance director of Guinness who

had been given immunity from prosecution.

49.   The applicant was granted leave to appeal against conviction.

Following a hearing at which the applicant was represented, the Court

of Appeal gave its judgment on 16 May 1991.  It held that while there

were some blemishes and infelicities in the judge's summing-up, it was

in the main a masterly exposition, which left the main issue of

dishonesty to the jury.  It commented that the applicant's counsel had

expressed the possibility that he might wish to address the court as

to the admissibility of the DTI transcripts.  It stated however that

the question had been decided, as far as it was concerned, by the

decision given by another division of the Court of Appeal in the case

of R. v. Seelig, which had held that such statements were admissible.

It went on to reject the applicant's appeal on all but one count: it

found that the judge had erred in his direction on count 14 and quashed

that conviction.  It reduced his sentence to two and a half years'

imprisonment.

50.   On 24 July 1991, the House of Lords refused leave to appeal from

the Court of Appeal ruling in the Seelig case concerning the

admissibility of the DTI transcripts.

B.    Relevant domestic law and practice

Appointment of inspectors

51.   By section 432 of the Companies Act 1985 (the 1985 Act) the

Secretary of State may appoint one or more competent inspectors to

investigate the affairs of a company and to report on them in such

manner as he may direct.  The Secretary of State may make such

appointment if it appears that there are circumstances suggesting:

      "(a) that the Company's affairs are being or have been conducted

           with intent to defraud its creditors or the creditors of

           any other person, or otherwise for a fraudulent or unlawful

           purpose, or in a manner which is unfairly prejudicial to

           some part of its members, or

      (b)  that any actual or proposed act or omission of the company

           (including an act or omission on its behalf) is or would be

           so prejudicial, or that the company was formed for any

           fraudulent or unlawful purpose, or

      (c)  that persons concerned with the company's formation or the

           management of its affairs have in connection therewith been

           guilty of fraud, misfeasance or other misconduct towards it

           or towards its members, or

      (d)  that the company's members have not been given all the

           information with respect to its affairs which they might

           reasonably expect." (Section 432(2))

52.   The Secretary of State is also empowered to appoint inspectors

to:

      "... investigate and report on the membership of any company, and

      otherwise with respect to the company, for the purpose of

      determining the true persons who are or have been financially

      interested in the success or failure (real or apparent) of the

      company or able to control or materially to influence its

      policy." (Section 442(1))

Function and powers of inspectors

53.   The function of inspectors is an inquisitorial and not a judicial

function.  It has been summarised, in a case which has been

incorporated as an appendix to the DTI Investigation Handbook, as

follows:

      "The Inspectors' function is in essence to conduct an

      investigation designed to discover whether there are facts which

      may result in others taking action; it is no part of their

      function to take a decision as to whether action be taken and a

      fortiori it is not for them finally to determine such issues as

      may emerge if some action eventuates." (In re Pergamom Press Ltd

      [1971] Ch 388 per Sachs LJ at p. 401).

54.   Section 434 of the 1985 Act provides:

      "(1) When inspectors are appointed under Section 431 or 432, it

           is the duty of all officers and agents of the company ...

           (a)   to produce to the inspectors all books and documents

                 of or relating to the company ... which are in their

                 custody or power,

           (b)   to attend before the inspectors when required to do so

                 and,

           (c)   otherwise to give the inspectors all assistance in

                 connection with the investigation which they are

                 reasonably able to give...

      (3)  An inspector may examine on oath the officers and agents of

           the company or other body corporate, and any such person as

           is mentioned in subsection (2), in relation to the affairs

           of the company or other body, and may administer an oath

           accordingly...

      (5)  An answer given by a person to a question put to him in

           exercise of powers conferred by this section (whether it

           has effect in relation to an investigation under any of

           sections 431 to 433, or as applied by any other section in

           this Part) may be used in evidence against him."

55.   Section 436 of the Act provides:

      "(1) When inspectors are appointed under section 431 or 432 to

           investigate the affairs of a company, the following applies

           in the case of -

           (a)   any officer or agent of the company,

           (b)   any officer or agent of another body corporate whose

                 affairs are investigated under section 433 and

           (c)   any such person as is mentioned in section 434(2).

           Section 434(4) applies with regard to references in this

           sub-section to an officer or agent.

      (2)  If that person -

           (a)   refuses to produce any book or document which it is

                 his duty under section 434 or 435 to produce, or

           (b)   refuses to attend before the inspectors when required

                 to do so, or

           (c)   refuses to answer any question put to him by the

                 inspectors with respect to the affairs of the company

                 or other body corporate (as the case may be) the

                 inspectors may certify the refusal in writing to the

                 court.

      (3)  The court may thereupon enquire into the case, and, after

           hearing any witnesses who may be produced against or on

           behalf of the alleged offender and after hearing any

           statement which may be offered in defence, the court may

           punish the offender in like manner as if he had been guilty

           of contempt of the court."

56.   Contempt of court in this context may be punished by the

imposition of a fine or by committal to prison for a period not

exceeding two years.

Provisions of the Police and Criminal Evidence Act 1984

57.   Section 76 of the Police and Criminal Evidence Act 1984 (PACE)

provides as relevant:

      "1. In any proceedings a confession made by an accused person may

      be given in evidence against him in so far as it is relevant to

      any matter in issue in the proceedings and is not excluded by the

      court in pursuance of this section.

      2. If, in any proceedings where the prosecution proposes to give

      in evidence a confession made by an accused person, it is

      represented to the court that the confession was or may have been

      obtained-

           (a) by oppression of the person who made it; or

           (b) in consequence of anything said or done which was

           likely, in the circumstances existing at the time, to

           render unreliable any confession which might be made by him

           in consequence thereof,

      the court shall not allow the confession to be given in evidence

      against him except in so far as the prosecution proves to the

      court beyond a reasonable doubt that the confession

      (notwithstanding that it might be true) was not obtained as

      aforesaid..."

58.   Section 78 provides as relevant:

      "1. In any proceedings the court may refuse to allow the evidence

      on which the prosecution proposes to rely to be given if it

      appears to the court that, having regard to all the

      circumstances, including the circumstances in which the evidence

      was obtained, the admission of the evidence would have such an

      adverse effect on the fairness of the proceedings that the court

      ought not to admit it."

III.  OPINION OF THE COMMISSION

A.    Complaint declared admissible

59.   The Commission has declared admissible the applicant's complaint

that he has been deprived of a fair hearing as a result of the use at

his trial of incriminating statements obtained from him by the DTI

Inspectors in exercise of their statutory powers of compulsion.

B.    Point at issue

60.   The issue to be determined is whether there has been a violation

of Article 6 para. 1 (Art. 6-1) of the Convention.

C.    Article 6 para. 1 (Art. 6-1) of the Convention

61.   Article 6 para. 1 (Art. 6-1) of the Convention provides as

relevant:

      "In the determination of ...any criminal charge against him,

      everyone is entitled to a fair and public hearing within a

      reasonable time by an independent and impartial tribunal

      established by law..."

62.   The applicant contends that the use of the DTI interviews, which

were obtained under compulsory powers, as evidence against him in his

trial deprived him of a fair hearing under this provision. He submits

in addition that the prosecuting authorities deliberately delayed the

commencement of the police investigation in order that statements

incriminating him could be gathered for use in the subsequent criminal

proceedings.

63.   The applicant argues that Article 6 (Art. 6) includes the

requirement that a defendant is entitled to exercise the right not to

incriminate himself. Since the statements which he made under

compulsion to the DTI Inspectors were used as a significant part of the

evidence against him at his trial, he was deprived of the privilege

against self-incrimination and the fairness of the proceedings was

seriously affected. Further, there is no justification in removing the

protection against self-incrimination from persons in the position of

the applicant, while it remains for all other categories of offenders,

including those interviewed by the Serious Fraud Office in the exercise

of its statutory powers.

64.   The Government submit that the DTI Inspectors' investigation was

separate from the criminal prosecution, their function being

inquisitorial and to establish the facts, which may result in others

taking action. The person being questioned is protected from oppression

and abuse, in particular, the applicant was accompanied by his legal

advisers during the questioning; the Inspectors gave a general

indication in advance of the matters in issue; after each session the

applicant was provided with a transcript and given the opportunity to

correct or augment his evidence (which he availed himself of

frequently); and account was taken of the applicant's health problems

in fixing dates. In addition the courts have power to exclude from use

at trial any statements obtained by oppression or in circumstances

which render them unreliable or which would have an adverse effect on

the fairness of the proceedings (eg. sections 76 and 78 of PACE - see

Relevant domestic law and practice paras. 57-58). In the Government's

submission, the applicant was not obliged to give evidence at his trial

and it is not correct for the applicant to allege that he was under

pressure to go into the witness box to explain what he had said to the

Inspectors. In his counsel's opening to the jury, it was stated that

the reason for the applicant giving evidence was to show that he could

"take the medicine which he saw (his counsel) hand out to some of the

prosecution witnesses."

65.   The Government submit in light of the above that the use of the

evidence taken by the Inspectors did not render the trial unfair. They

argue that the "right to silence" or the privilege against self-

incrimination is not absolute and that any  departure from it is

justified in the present case having regard, inter alia, to the special

status of persons conducting the affairs of public companies who enjoy

a fiduciary position towards the public to which they have a

responsibility of accounting for their stewardship.

66.   As regards the applicant's allegations of deliberate delay on the

part of the prosecuting authorities, the Government submit that there

is no appearance or trace of such impropriety. They refer to the

findings of Mr. Justice Henry with regard to the lack of any abuse of

process and state that the delay in launching the police investigation

pursued the legitimate purpose of allowing a clear picture to emerge

in an extremely complicated affair  in order that the prosecution might

obtain a better overall understanding of it before deciding what lines

of enquiry to pursue.

67.   The Commission recalls that as a general rule questions

concerning evidence are for the national courts to determine. Article 6

(Art. 6) does not lay down any rules on the admissibility of evidence

as such, which is therefore primarily a matter for regulation under

domestic law (see eg. Eur. Court H.R., Schenk judgment of 12 July 1988,

Series A no. 140 p. 29, para. 46). The Commission must however

determine whether the proceedings considered as a whole, including the

way in which the prosecution obtained and used evidence, were fair as

required by Article 6 para. 1 (Art. 6-1) of the Convention. In this

context, the Commission recalls that the Convention is intended to

guarantee rights which are not theoretical or illusory but rights that

are practical and effective; this is of particular relevance to the

rights of the defence given the prominent place held in a democratic

society by the right to a fair trial (see eg. Eur. Court H.R., Artico

judgment of 13 May 1980, Series A no. 37 p. 16, para. 33).

68.   In the case of Funke (Eur. Court H.R., Funke judgment of

25 February 1993, Series A no. 256A p. 22, para. 44), the Court found

a violation of Article 6 para. 1 (Art. 6-1) in that the applicant had

been prosecuted and convicted for refusing to disclose documents on the

application by the customs authorities:

      "The Court notes that the customs secured Mr. Funke's conviction

      in order to obtain certain documents which they believed must

      exist, although they were not certain of the fact. Being unable

      or unwilling to procure them by some other means, they attempted

      to compel the applicant himself to provide the evidence of

      offences which he had allegedly committed. The special features

      of customs law (see paragraphs 30-31) cannot justify such an

      infringement of the right of anyone `charged with a criminal

      offence', within the meaning of this expression in Article 6

      (Art. 6), to remain silent and not to contribute to incriminating

      himself."

69.   The Court appears in the above passage to find that the right to

silence and privilege against self-incrimination are an inherent part

of the protection given to an accused under Article 6 para. 1

(Art. 6-1). The Government argue that the Funke case is not strictly

relevant to the present case since Funke concerned punishment of an

applicant for refusing to incriminate himself whereas the present

applicant co-operated with the Inspectors without incurring any

penalty. However the Commission does not consider that the Court's

statement can be restricted as narrowly, since on its face it refers

to "anyone `charged with a criminal offence'". It also seems to the

Commission that  an applicant who incriminates himself under threat of

punishment (see paras. 55-56) and provides evidence for use against

himself at his trial may be as seriously prejudiced, perhaps more so,

as the applicant who incurs the punishment for refusing to incriminate

himself.

70.   The Commission observes that the right to silence is not

expressly guaranteed by Article 6 (Art. 6) of the Convention and

accepts that the right may not be unqualified. The Government seek to

confine the ambit of any "right to silence" under Article 6 para. 1

(Art. 6-1) by  analogy with the principles elaborated by the Court in

respect of the right of access to court which is implicit in Article 6

(Art. 6): namely, that any such right cannot be absolute but will be

subject to those implied limitations which  comply with the

requirements of not impairing the very essence of a fair hearing, serve

a legitimate aim and are proportionate to the aim sought to be achieved

(see mutatis mutandis Eur. Court H.R.,  Golder judgment of

17 May 1975, Series A no. 18 p. 19, para. 38 and Ashingdane judgment

of 28 May 1985, Series A no. 93, p. 24, para. 57). These requirements

are, they submit, satisfied on the facts of the present case in view

of the procedural safeguards against abuse (see para. 64 above) and the

special considerations applying to company directors in positions of

fiduciary responsibility towards the public.

71.   The Commission does not consider however that the above criteria

can be transferred automatically from case-law on the implied right of

access to court - which generally is concerned with problems arising

in the sphere of "civil rights and obligations" - to the general

concept of "fairness" which is expressly contained in Article 6 para. 1

(Art. 6-1). It cannot be compatible with the spirit of the Convention

that varying degrees of fairness apply to different categories of

accused in criminal trials. The right of silence, to the extent that

it may be contained in the guarantees of Article 6 (Art. 6), must apply

as equally to alleged company fraudsters as to those accused of other

types of fraud, rape, murder or terrorist offences. Further, there can

be no legitimate aim in depriving someone of the guarantees necessary

in securing a fair trial.

72.   In the Commission's opinion, the privilege against self-

incrimination is an important element in safeguarding an accused from

oppression and coercion during criminal proceedings. The very basis of

a fair trial presupposes that the accused is afforded the opportunity

of defending himself against the charges brought against him. The

position of the defence is undermined if the accused is under

compulsion, or has been compelled,  to incriminate himself. The

privilege against self-incrimination is also closely allied to the

principle of presumption of innocence protected in Article 6 para. 2

(Art. 6-2) of the Convention in that it reflects the expectation that

the State bear the general burden of establishing the guilt of an

accused, in which process the accused is entitled not to be required

to furnish any involuntary assistance by way of confession.

73.   Whether a particular applicant has been subject to compulsion to

incriminate himself and whether the use made of the incriminating

material has rendered criminal proceedings unfair will depend on an

assessment of the circumstances of each case as a whole.

74.   In the present case, the Commission notes that the applicant was

required by law to answer the questions put to him by the DTI

Inspectors in the course of their investigation, whether or not they

tended to incriminate him. A refusal to answer could have been

punished, on reference to the court, by a penalty of up to two years'

imprisonment or by a fine.  On application by the applicant to the

trial judge to exclude the statements as evidence at his trial, 2 of

the 9 transcripts of the interviews were ruled inadmissible on the

basis that they had been obtained after the applicant had been charged.

The judge found that these statements could not be said to be voluntary

and that it could not be fair to use material obtained by compulsory

interrogation after the commencement of the accusatorial process. The

remaining statements were admissible in evidence against the applicant

at his trial whether or not he chose to give evidence himself. It was

accepted by the Government that the applicant's evidence to the

Inspectors constituted a significant element of the prosecution case

against the applicant. During the trial, the prosecution used the

other transcripts of the DTI interviews to establish the state of the

applicant's knowledge and to point out the inconsistencies in the

applicant's oral evidence. The judge also made reference in summing-up

to the jury to the contradictions between the applicant's evidence to

the Inspectors and to the court.

75.   The Commission finds that the applicant was in effect compelled

to incriminate himself and that the incriminating material furnished

a not insignificant part of the evidence against him at his trial.

While the Government contest that the reason for the applicant deciding

to give evidence was the necessity for him to counter the evidence of

the DTI interviews, the Commission notes that on the Government's own

submissions it is not denied that, though the real value of the

transcripts was in cross-examination (pointing out inconsistencies in

the applicant's explanations), the evidence contained admissions in

itself. In these circumstances, the Commission considers this must have

exerted additional pressure on the applicant to take the witness stand

rather than exercise his right to remain silent at the trial and leave

it to the prosecution to prove its case.

76.   In light of the above, the Commission finds that the use at the

applicant's trial of incriminating evidence obtained from him under

compulsory powers was oppressive and substantially impaired his ability

to defend himself against the criminal charges facing him. He was

therefore deprived of a fair hearing within the meaning of Article 6

para. 1 (Art. 6-1) of the Convention. Given this conclusion the

Commission finds it unnecessary to decide whether in addition the

prosecuting authorities' delay in instituting the police investigation

was improperly motivated by the desire to gather incriminating evidence

from the DTI investigation for use at the applicant's trial.

CONCLUSION

77.   The Commission concludes, by 14 votes to 1, that there has been

a violation of Article 6 para. 1 (Art. 6-1) of the Convention.

Secretary to the Commission            President of the Commission

      (H.C. KRÜGER)                         (C.A. NØRGAARD)

                  CONCURRING OPINION OF MR. LOUCAIDES

      I agree with the conclusion of the majority that in this case

there has been a violation of Article 6 para. 1 of the Convention for

the reasons set out in para. 76 of the Report, but I would like to add

the following:

      In my view this case concerns more directly the right to remain

silent and not to be compelled to incriminate oneself (nemo tenetur

prodere or nemo tenetur scipsum accusare) which, I believe, is a

corollary of the principle of presumption of innocence protected in the

second paragraph of Article 6 of the Convention.  This principle has

developed though the centuries in order to protect individuals from

oppressive inquisitorial methods and unfounded prosecutions, and it was

rightly interpreted to mean that:

      "It is the business of the Crown (the prosecution) to prove [an

      accused person] guilty and he need not do anything but stand by

      and see what case has been made out against him ... He is

      entitled to rely on the defence that the evidence as it stands

      is inconclusive, and that the Crown is bound to make it

      conclusive without any help from him" (Ex parte Reynolds, 20 Ch.

      D. 294).

      The presumption of innocence would in fact be a meaningless

protection if an accused person was compelled to give evidence against

himself.  Therefore the privilege against self-incrimination must be

recognised as a sine qua non for the effectiveness of the protection

in question.  In my view the privilege in question and the presumption

of innocence are the two sides of the same coin.

      Although the historical reasons which led to the adoption of the

right against self-incrimination, namely inquisitorial practices, are

substantially nonexistent today, the need to exclude their reactivation

still survives.  As rightly observed by the U.S.A. Supreme Court in

relation to the corresponding right safeguarded by the U.S.

Constitution -

      "Having had much experience with a tendency in human nature to

      abuse power the Founders [of the Constitution] sought to close

      the doors against like future abuses by law-enforcing agencies"

      (U.S. v. Bryan 1950 339 U.S. 323).

      The same court has aptly explained the rationality of the

principle in question as being the "protection of the innocent, though

a shelter to the guilty, and a safeguard against heedless, unfounded,

or tyrannical prosecutions "(Twining v. New Jersey (1908) 211 U.S.,

78).

      The rule against self-incrimination being part and parcel of the

presumption of innocence which is protected in Article 6 para. 2 of the

Convention in absolute terms, there can be no justification for its

breach.

      Therefore, inasmuch as the applicant was compelled to give

incriminating evidence which was later on used against him in his

trial, I find that there has been in this case a direct violation of

Article 6 para,. 2 of the Convention.  Such violation is an autonomous

violation independent of the question of whether there has also been

a breach, in this case, of the principle of "fair hearing" under

para. 1 of Article 6.

             DISSENTING OPINION OF Mr. HENRY G. SCHERMERS

      There are three reasons why I do not agree with the majority of

the Commission that Article 6 para. 1 of the Convention has been

violated in the present case.

      First, a somewhat theoretical point concerning legal persons.

      Under our legal systems, separate legal personality has been

attributed to companies.  Their capital, their operations and their

management are distinguished from those of the shareholders.  As a

legal fiction, we create new persons, through the management of others.

When the applicant testified to the DTI he did so, not in his private

capacity, but as an officer or agent of Guinness PLC.  At first sight,

this argument may seem too theoretical to carry much weight.  One

should take into account, however, that the companies concerned were

separate legal persons with separate interests and that they could not

act nor testify in any other way than through their officers or agents.

      Second, the time when the incriminating remarks were made.

      The statements made by the applicant during the DTI inspectors'

investigation were made outside and prior to the criminal investigation

against him.  As Mr. Justice Henry ruled in the case, the accusatorial

system was born in reaction to the excesses of the Star Chamber, where

the defendants were first charged, and then had to submit to compulsory

interrogation on oath.  Evidence should be assembled before a person

is charged.  It would be contrary to a fair trial to try and find

evidence by submitting people to compulsory interrogation on oath in

cases where there may exist only a vague suspicion.  This does not

mean, however, that observations made by an accused in a different

context may never be used against him.  In this respect the present

case resembles tax and customs cases which may also be based on

documents which a person was obliged to deliver.

      I think that  would have agreed with the majority of the

Commission that Article 6 para. 1 of the Convention was violated, had

not Mr. Justice Henry excluded the evidence from the two post-charge

interviews (para. 41).

      Three, the purpose of the prohibitions of self incrimination.

      In my opinion, the main reason why a fair process should include

the right not to incriminate oneself is that one should not put a

person in the situation where he must choose between telling the truth

which incriminates himself and lying in order to protect himself.  The

human right of protecting oneself would be brought in conflict with the

human duty of telling the truth.  In the criminal proceedings of the

present case that situation did not arise.  All statements to the DTI

Inspectors had been made before the criminal proceedings started.  If

the applicant was put in a situation of conflict between truth and

self-protection, that conflict was in the proceedings before the DTI

Inspectors.  Only in those proceedings a conflict of conscience may

have arisen.  However, those proceedings are not included in the

present application; they were closed more than six months before the

case was submitted.

      The use of data provided for by someone who is subsequently

charged with a criminal offence is often inevitable.  Especially in

proceedings under tax law, persons are often obliged to hand over

financial accounts which may subsequently serve to incriminate them.

                              Appendix I

                      HISTORY OF THE PROCEEDINGS

Date                  Item

________________________________________________________________

20.07.88              Introduction of the application

11.12.91              Registration of the application

Examination of admissibility

31.08.92              Commission's decision to invite the parties to

                      submit observations on the admissibility and

                      merits

12.01.93              Government's observations

25.02.93              Applicant's reply

07.05.93              Commission's decision to invite the parties to

                      an oral hearing

29.09.93              Government's further written observations

19.11.93              Applicant's further written observations

07.12.93              Hearing on admissibility and merits

07.12.93              Commission's decision to declare the application

                      admissible

Examination of the merits

07.12.93              Commission's deliberations

14.02.94              Government's observations on the merits

09.04.94              Consideration of the state of proceedings

10.05.94              Commission's deliberations on the merits, final

                      votes and adoption of the Report