AS TO THE ADMISSIBILITY OF

Application No. 29522/95                     Application No. 30056/96

by I.J.L.                              by G.M.R.

against the United Kingdom             against the United Kingdom

                      Application No. 30574/96

                      by A.K.P.

                      against the United Kingdom

     The European Commission of Human Rights (First Chamber) sitting

in private on 9 April 1997, the following members being present:

           Mrs.  J. LIDDY, President

           MM.   M.P. PELLONPÄÄ

                 E. BUSUTTIL

                 A. WEITZEL

                 C.L. ROZAKIS

                 L. LOUCAIDES

                 B. MARXER

                 B. CONFORTI

                 I. BÉKÉS

                 G. RESS

                 A. PERENIC

                 C. BÎRSAN

                 K. HERNDL

                 M. VILA AMIGÓ

           Mrs.  M. HION

           Mr.   R. NICOLINI

           Mrs.  M.F. BUQUICCHIO, Secretary to the Chamber

     Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

     Having regard to Application No. 29522/95, introduced on

30 November 1995 by I.J.L. against the United Kingdom and registered

on 12 December 1995; Application No. 30056/96 introduced on 18 December

1995 by G.M.R. against the United Kingdom and registered on 5 February

1996 and Application No. 30574/96 introduced on 8 December 1995 by

A.K.P. against the United Kingdom and registered on 25 March 1996;

     Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

     Having deliberated;

     Decides as follows:

THE FACTS

     The three applicants are British citizens born in 1916, 1939 and

1945, respectively.

     The first applicant is a former company director and financier

and resides in Switzerland. He is represented by Stephenson Harwood,

London, and by Mr. J.P. Gardner, a solicitor practising in London.

     The second applicant is a company director and resides in London.

He is represented by Mishcon de Reya, London, and by Mr. J.P. Gardner.

     The third applicant is a former stockbroker and resides in

London. He is represented by Peters & Peters, London, and by

Mr. J.P. Gardner.

     The facts, as submitted by the applicants, are closely related

to the facts of the Saunders case (Eur. Court HR, Saunders v. the

United Kingdom judgment of 17 December 1996, to be published in Reports

1996) and may be summarised as follows.

A.   Particular circumstances of the case

a.   Factual background leading to the appointment of Inspectors

     In early 1986 Guinness was competing with another public company,

Argyll Group PLC ("Argyll"), to take over a third public company, the

Distillers Company PLC ("Distillers"). The take-over battle resulted

in victory for Guinness. Guinness' offer to the Distillers'

shareholders, like Argyll's, included a substantial share exchange

element, and accordingly the respective prices at which Guinness and

Argyll shares were quoted on the stock exchange was a critical factor

for both sides. During the course of the bid the Guinness share price

rose dramatically, but once the bid had been declared unconditional it

fell significantly.

     The substantial increase in the quoted Guinness share price

during the bid was achieved as a result of an unlawful share support

operation. This involved certain persons ("supporters") purchasing

Guinness shares in order to maintain, or inflate, its quoted share

price. Supporters were offered secret indemnities against any losses

they might incur, and, in some cases, also large success fees, if the

Guinness bid was successful. Such inducements were unlawful (1) because

they were not disclosed to the market under the City Code on Take-overs

and Mergers and (2) because they were paid out of Guinness' own monies

in breach of section 151 of the Companies Act 1985 ("the 1985 Act"),

which prohibits a company from giving financial assistance for the

purpose of the acquisition of its own shares.

     Supporters who had purchased shares under the unlawful share

support operation were indemnified and rewarded. In addition, some of

those who had helped find supporters were rewarded by the payment of

large fees. These too came from Guinness' funds. In most cases payments

were made using false invoices which concealed the fact that payment

was being made in respect of the supporters or other recipients'

participation in the unlawful share support operation.

     Allegations and rumours of misconduct during the course of the

bid led the Secretary of State for Trade and Industry to appoint

Inspectors some months after the events pursuant to sections 432

and 442 of the 1985 Act (see infra, Relevant domestic law under a.).

The Inspectors were empowered to investigate the affairs of Guinness.

b.   The Inspectors' investigation

     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.

     On 12 January 1987, the Inspectors informed the Department of

Trade and Industry ("DTI") that there was concrete evidence of criminal

offences having been committed. On the same date the DTI contacted

Mr. John Wood of the Director of Public Prosecutions' office ("DPP").

It was decided that the proper thing to do was to permit the Inspectors

to 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.

     On 14 January 1987, the Chairman of Guinness, Mr. Saunders, was

dismissed from the company.

     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 1985

Act. Thereafter the Inspectors passed on to the Secretary of State

transcripts of their hearings and other documentary material which came

into their possession.

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

Inspectors, the Solicitor to and other officials of the DTI,

Mr. John Wood and a representative from the CPS. Amongst other matters,

potential accused were identified, possible charges were discussed and

it was stated that a decision had to be made as to when to start a

criminal investigation. All concerned agreed on the need to work

closely together in preparing the way for bringing charges as soon as

possible. The Inspectors indicated their readiness to cooperate

although they reserved the right to conduct their investigations as

they thought right.

     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.

     The first applicant was interviewed by the Inspectors on five

occasions: on 29 January, 12 February, 11 March, 16 March and 10 April

1987.     The second applicant was interviewed by the Inspectors on two

occasions: on 14 January and 2 September 1987.

     The third applicant was interviewed by the Inspectors on 22 and

27 January 1987. He was accompanied by his solicitor throughout these

interviews. He was further interviewed by the Inspectors on 26 May

1987.     After having informed the Inspectors of the particulars of his

travel plans and having confirmed his availability through his

solicitors or in person should it be required, the third applicant left

for the United States of America, where he arrived on 30 September

1987. He was immediately arrested and detained on grounds of an

extradition request by the United Kingdom to the United States. He

returned voluntarily to the United Kingdom on 23 March 1988.

c.   The criminal proceedings

     During the first week of May 1987 the police were formally asked

by the DPP's office to carry out a criminal investigation. The

transcripts and documents obtained as a result of the Inspectors'

interviews were then passed on to the police.

     In the beginning of May 1987, Mr. Saunders was charged with

numerous offences relating to the illegal share support operation.

     About one month later, the DPP instructed the police to carry out

an investigation into the wider aspects of the Guinness takeover.

     On 8 October 1987, the first applicant was charged with nine

offences relating to invoices he had caused to be submitted for advice

he had given during the bid. These invoices had been submitted after

the successful outcome of the Guinness bid.

     On 13 October 1987, the second applicant was charged with eight

offences relating to invoices which two companies, being wholly owned

subsidiaries of the company of which the second applicant was director,

had submitted for the loss on the sale of Guinness shares and for the

success fee paid after the successful outcome of the Guinness bid.

     After his return from the United States of America, the third

applicant was charged with six offences relating to two invoices and

the success fees which had been charged to Guinness following this

company's takeover of Distillers.

     In total, seven persons were charged with offences in connection

with the Guinness takeover. All seven defendants together were

arraigned before the Crown Court on 27 April 1989.

     In view of the large number of counsel and the number of

defendants two separate trials were subsequently ordered by the trial

judge in the Crown Court on 21 September 1989. The applicants and

Mr. Saunders were to be tried together in a first set of proceedings

and the remaining three co-defendants in a separate set of proceedings.

     From 6-16 November 1989 the court held a voir dire (submissions

on a point of law in the absence of the jury) following the application

of the third applicant to rule the DTI transcripts inadmissible. He

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.

     In a ruling given on 21 November 1989, the trial judge

(Mr. Justice Henry) held that the transcripts were admissible. He

stated that it was common ground that the interviews were capable of

being "confessions" as defined in section 82 (1) of PACE. He found that

as a matter of construction of the 1985 Act 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 the third applicant's 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.

     From 22 to 24 January 1990 the court held a further voir dire

following the application of Mr. Saunders to rule inadmissible the DTI

transcripts concerning the eighth and ninth interviews with him 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 Mr. Saunders' alleged ill-health at

the time and on the fact that the two interviews in question had taken

place after he had been charged.

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

defence argument as to Mr. Saunders' medical condition. He did,

however, exercise his discretion pursuant to section 78 to exclude the

evidence from the two above-mentioned interviews which had taken place

after Mr. Saunders had been charged on the grounds that the latter's

attendance could not be said to be voluntary. In his view, moreover,

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

interrogation after the commencement of the accusatorial process.

d.   The applicants' trial

     The applicants were tried together with Mr. Saunders. The trial

opened on 16 February 1990 and involved seventy-five days of evidence,

ten days of speeches by counsel and a five-day summing up to the jury

by the trial judge.

     In the course of the trial, Mr. Saunders was the only accused to

give evidence. A large part of the evidence against the applicants

consisted of evidence gathered by the DTI Inspectors. In the course of

the proceedings evidence was further taken from the former finance

director of Guinness, Mr. Roux, who had been granted immunity from

prosecution. The prosecution also referred to the statements made by

the applicants in the course of their interviews by the DTI Inspectors.

     The transcripts of the interviews were read to the jury by the

prosecution over a three-day period during the trial (days 45-47). They

were used in order to establish the state of the applicants' knowledge.

     In his summing-up to the jury, the judge referred, inter alia,

to the answers which the applicants had given to the DTI Inspectors.

     On 22 August 1990, the first applicant was convicted of two

counts of conspiracy, three counts of false accounting and one count

of theft. He was fined £3,000,000 with a total of five years'

imprisonment in default. He was also ordered to contribute £440,000

towards the prosecution's costs.

     The second applicant was convicted of one count of conspiracy,

two counts of false accounting and one count of theft. He received an

overall prison sentence of 12 months and was fined £5,000,000 with a

4 years' consecutive prison sentence in default. He was also ordered

to contribute £440,000 towards the prosecution's costs.

     The third applicant was convicted of four counts of false

accounting and two counts of theft. He received an overall prison

sentence of 21/2 years. He was also ordered to contribute £440,000

towards the prosecution's costs.

     Mr. Saunders was convicted of 12 counts in respect of conspiracy,

false accounting and theft. He received an overall prison sentence of

5 years.

e.   Ruling on 'abuse of process' claims

     In the second set of proceedings concerning the other co-

defendants, further challenge was made to the admissibility of the

transcripts of the interviews 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. In

particular, 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 a ruling given on 10 December 1990, Mr. Justice Henry found

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 Mr. Seelig's depositions to the Inspectors 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 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.

     On appeal the Court of Appeal in a judgment dated 2 May 1991 (R.

v. Seelig) upheld the trial judge's ruling as to the admissibility of

the interviews before the Inspectors. On 24 July 1991 leave to appeal

was refused by the House of Lords.

f.   The applicants' appeal

     All applicants applied for leave to appeal against conviction and

sentence.  However, on 18 December 1990, the first applicant withdrew

his appeal on grounds of his precarious state of health. On 20 March

1991, the first applicant's knighthood was annulled.

     The second and third applicants, like Mr. Saunders, were granted

leave to appeal against conviction. Following a hearing, the Court of

Appeal gave its judgment on 16 May 1991. It held, inter alia, that

while there were some blemishes and infelicities in the judge's

summing-up, it was in the main a masterly exposition. As regards the

admissibility of the transcripts, it was held 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.

     Mr. Saunders' appeal was rejected on all but one count. The Court

of Appeal found that the judge had erred in his direction on one count

and quashed that conviction. It reduced his sentence to 21/2 years'

imprisonment.

     The second applicant's appeal resulted in a moderation of his

sentence in that the period to be served in default of payment of his

fine was reduced and the time within which he was to pay the fine was

extended.

     The third applicant's appeal resulted in a reduction of his

sentence to 21 months' imprisonment.

     The orders for costs made against the second and third applicants

were reduced to £300,000 each. A similar order was made by the Court

of Appeal in favour of the first applicant.

g.   Subsequent reference to the Court of Appeal by the Home Secretary

     On 22 December 1994 the Home Secretary referred the whole case

of the applicants and Mr. Saunders to the Court of Appeal pursuant to

section 17(1) of the Criminal Appeal Act 1968. He did so on the basis

of requests by the applicants, who submitted that the prosecution had

failed to disclose certain materials at their trial. That material

showed that share support operations had been undertaken in relation

to a number of other takeovers and had been considered to be acceptable

practice by the professional advisers involved in them. The material

also included the outcome of an investigation undertaken on the

initiative of the DTI and concluded on 8 December 1988 by the Licensed

Dealers' Tribunal (a former disciplinary body) which related to share

support operations.

     By judgment of 27 November 1995, the Court of Appeal rejected the

first applicant's appeal on all but one count. It quashed the

applicant's conviction of one of the conspiracy counts. The appeals by

the second and third applicants and Mr. Saunders were dismissed.

     The Court of Appeal subsequently refused to certify that the case

involved a point of public importance and denied leave to appeal to the

House of Lords. Following this decision no further avenue of appeal was

open to the applicants.

     In its judgment of 27 November 1995, the Court of Appeal rejected

the argument that the use at trial of answers given to the DTI

Inspectors automatically rendered the criminal proceedings unfair. It

pointed out that Parliament had expressly and unambiguously provided

in the 1985 Act that answers given to DTI Inspectors may be admitted

in evidence in criminal proceedings even though such admittance might

override the privilege against self-incrimination.

     In its judgment the Court noted that the interviews with each of

the accused "formed a significant part of the prosecution case".

     With reference to the allegation that it was unfair that those

interviewed by DTI Inspectors should be treated less favourably than

those interviewed by the police under PACE, the Court noted as follows:

     "... the unravelling of complex and devious transactions in those

     fields is particularly difficult and those who enjoy the

     immunities and privileges afforded by the Bankruptcy Laws and the

     Companies Acts must accept the need for a regime of stringent

     scrutiny especially where fraud is suspected..."

     In relation to the argument that the difference between the

Companies Act and the Criminal Justice Act regimes (see infra, Relevant

domestic law under b. and c.) was anomalous the prosecution contended

that:

     "... the explanation lies in the very different regime of

     interviews by DTI Inspectors compared with that of interviews

     either by police or the SFO [Serious Fraud Office]. DTI

     Inspectors are investigators; unlike the police or SFO they are

     not prosecutors or potential prosecutors. Here, typically, the

     two Inspectors were a Queen's Counsel and a senior accountant.

     They are bound to act fairly, and to give anyone they propose to

     condemn or criticize a fair opportunity to answer what is alleged

     against them... Usually, the interviewee will be represented by

     lawyers and he may be informed in advance of the points to be

     raised."

     The Court of Appeal held on this point:

     "Whether or not these matters constitute a sufficient explanation

     and whether or not the distinction is "an anomaly", the fact

     remains that the distinction exists because Parliament has

     created it. When enacting section 2(8) of the 1987 Act, it would

     have been open to Parliament to have amended section 434(5) of

     the Companies Act and other similar provisions so as to bring

     them into line with section 2(8). Their decision not to do so was

     no oversight. This is clear from the speech of Lord Caithness

     during the passage of the 1987 Bill... He said the Government had

     deliberately not followed in that Bill the precedent in the

     Companies legislation on this very issue... Parliament has made

     its intentions quite clear in section 434(5). It cannot be right

     for a judge to exercise his discretion to exclude evidence of

     interviews simply on the ground that Parliament ought not to have

     countenanced the possibility of self-incrimination...

     However,..., a judge can, in our view, as part of the background

     setting, have in mind that under that [statutory] régime there

     is an obligation to answer the Inspectors' questions on pain of

     sanctions."

     The court also rejected an allegation that there had been an

abuse of process in that the DTI Inspectors were used wrongly as

"evidence gatherers" for the prosecution or that there had been

improper or unfair "collusion", as follows:

     "We have carefully considered the effect of the events of

     November 1986 to October 1987 in the light of all the documents.

     We conclude that to allow the Inspectors to continue their

     inquiry and to bring in the police only in May 1987 was a proper

     course subject to two essentials:

     (1)   That the Inspectors were left to conduct their inquiries

     and interviews independently without instruction, briefing or

     prompting by the prosecuting authority. We are quite satisfied

     that the Inspectors themselves made that clear and abided by it.

     Counsel also laid down those ground rules correctly and they were

     observed...

     (2)   That the interviews were conducted fairly and

     unobjectionably. It was not suggested to the trial judge or

     before us that the Inspectors could be criticised on this score.

     These were carefully structured sessions of proper length in

     suitable conditions. The appellants, experienced business men of

     high intelligence, were each represented either by counsel

     (usually Queen's Counsel) or a senior solicitor. The questions

     were put scrupulously fairly and the Code laid down in the

     Pergamon case ... was observed."

     The Court also rejected the allegation that non-disclosure prior

to the trial of the material alleged to indicate abuse caused any

unfairness to the applicants. It further rejected the second

applicant's complaint that there had been an improper delay in charging

him.

     The Court of Appeal rejected the applicants' complaint on the

non-disclosure of certain material by the prosecution. It concluded on

this point:

     "In the case of all four appellants, whilst we have held that the

     undisclosed material should have been disclosed, we are satisfied

     that the procedural irregularity which occurred as a result of

     non-disclosure in fact occasioned no prejudice to them. The

     verdicts of the jury would inevitably have been the same had

     disclosure been made."

B.   Relevant domestic law and practice

a.   Appointment of inspectors

     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))

     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))

b.   Function and powers of inspectors

     The function of inspectors is an inquisitorial and not a judicial

function. It has been summarised in re Pergamon Press Ltd [1971]

Chancery Reports 388, per Sachs LJ at p. 401, 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."

     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."

     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."

     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.

c.   Provisions of the Police and Criminal Evidence Act 1984 and the

     Criminal Justice Act 1987

     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..."

     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."

     Under section 82 (1) of PACE a "'confession' includes any

statement wholly or partly adverse to the person who made it, whether

made to a person in authority or not and whether made in words or

otherwise."

     The Criminal Justice Act 1987 confers on the Director of the

Serious Fraud Office special powers to assist him in the investigation

and prosecution of serious fraud. Section 2(2) requires a person whose

affairs are being investigated to answer questions even if by so doing

he might incriminate himself. Failure to answer may give rise to

criminal sanctions (section 2(13)). Answers in this context cannot be

used in evidence against a suspect unless he is prosecuted for failure,

without reasonable excuse, to answer questions or unless he makes a

statement in evidence which is inconsistent with a previous answer

(section 2(8)).

COMPLAINTS

     The applicants complain under Article 6 paras. 1 and 3 (d) of the

Convention that they did not receive a fair trial. They submit that the

decision taken by the prosecution involved an impermissible degree of

co-operation between the DPP and the DTI which postponed the opening

of a police investigation and thus postponed the procedural protection

to which the applicants were entitled under the Convention, that self-

incriminating evidence was used which had been obtained under

exceptional powers and without their having been given notice of the

prosecution's involvement and that the prosecution withheld evidence

relevant for the defence. Given the non-disclosure of evidence, they

could not obtain the attendance of potential witnesses on the same

terms as the prosecution as the defence was unaware of the existence

of such witnesses, who were known to the prosecution but not relied on

by it as their evidence would not be helpful to the prosecution itself.

The applicant considers that in these circumstances there has been a

violation of the principle of equality of arms.

     The applicants further complain under Article 6 para. 1 of the

Convention that the criminal proceedings against them have exceeded a

reasonable time.

     The applicants complain that the use of evidence obtained by the

DTI Inspectors was contrary to the presumption of innocence within the

meaning of Article 6 para. 2 of the Convention. They submit that this

principle reflects the requirement in English law that the prosecution

must prove a criminal case beyond reasonable doubt and that the

principle of presumption of innocence operates to allow a person not

to answer questions and an accused to remain silent without adverse

inference being drawn from that fact.

     The applicants complain that the Inspectors' investigation, the

criminal proceedings, their convictions, the resulting publicity and

the effects of the consequential blight on their reputation, including

the annulment of the first applicant's knighthood, constitute an unjust

interference with their rights under Article 8 para. 1 of the

Convention.

     The applicants complain that, given the unfairness and thus

unlawfulness of the criminal proceedings against them, the judgment and

their convictions affirmed by the Court of Appeal on 27 November 1995

constituted an impermissible interference with their right to respect

for their possessions protected by Article 1 of Protocol No. 1.

     The applicants finally complain under Article 13 of the

Convention that they have no remedy as regards their complaints under

Article 6, Article 8 and Article 1 of Protocol No. 1.

THE LAW

1.   The applicants complain under Article 6 paras. 1 and 3 (d)

(Art. 6-1, 6-3-d) of the Convention that they did not receive a fair

trial in that, given the non-disclosure of evidence, they could not

obtain the attendance of potential witnesses on the same terms as the

prosecution as the defence was unaware of the existence of such

witnesses, who were known to the prosecution but not relied on by it

as their evidence would not be helpful to the prosecution itself. The

applicants consider that in these circumstances there has been a

violation of the principle of equality of arms.

     The applicants further complain under Article 6 para. 1

(Art. 6-1) of the Convention that the criminal proceedings against them

exceeded a reasonable time.

     The applicants finally complain under Article 6 paras. 1 and 2

(Art. 6-1, 6-2)) of the Convention that they did not receive a fair

hearing in that self-incriminating evidence was used which had been

obtained under exceptional powers and without their having been given

notice of the prosecution's involvement. They further contend that the

authorities, in operating this way, acted contrary to the presumption

of innocence.

     The applicants also complain under Article 13 (Art. 13) of the

Convention that they have no remedy as regards their complaints under

Article 6 (Art. 6).

     Article 6 (Art. 6) of the Convention, insofar as relevant, reads:

     "1.   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...

     2.    Everyone charged with a criminal offence shall be

     presumed innocent until proved guilty according to law.

     3.    Everyone charged with a criminal offence has the

     following minimum rights:

           ...

           d.    to examine or have examined witnesses against

     him and to obtain the attendance and examination of

     witnesses on his behalf under the same conditions as

     witnesses against him;"

     Article 13 (Art. 13) of the Convention provides as follows:

     "Everyone whose rights and freedoms as set forth in this

     Convention are violated shall have an effective remedy

     before a national authority notwithstanding that the

     violation has been committed by persons acting in an

     official capacity."

a)   As regards the applicants' complaint under Article 6 paras. 1 and

3 (d) (Art. 6-1, 6-3-d) of the Convention that they did not receive a

fair trial in that, given the non-disclosure of evidence, they could

not obtain the attendance of potential witnesses on the same terms as

the prosecution as the defence was unaware of the existence of such

witnesses, who were known to the prosecution but not relied on by it

as their evidence would not be helpful to the prosecution itself, the

Commission notes that this evidence was disclosed to the defence when

the Home Secretary referred the applicants' whole case to the Court of

Appeal on 22 December 1994.

     Following this referral, the Court of Appeal examined the

applicants' cases in their entirety including the material which had

not been previously disclosed by the prosecution.

     It does not appear that the applicants, on the basis of this

newly disclosed material, sought the attendance and examination of any

witnesses before the Court of Appeal. It further has not been alleged

that the applicants were unable to do so at this stage of the

proceedings, or that the principle of equality of arms was violated in

any other way in the proceedings at issue.

     In these circumstances, the Commission considers that this defect

of the original trial was remedied by the subsequent procedure before

the Court of Appeal (cf. Eur. Court HR, Edwards v. the United Kingdom

judgment of 16 December 1992, Series A no. 247-B, p. 35, paras. 36-39).

     Insofar as the applicants rely on Article 13 (Art. 13) of the

Convention in conjunction with the above complaint under Article 6

paras. 1 and 3 (d) (Art. 6-1, 6-3-d) of the Convention, the Commission

recalls that Article 13 (Art. 13) does not require a remedy under

domestic law in respect of any alleged violation of the Convention. It

only applies if the individual can be said to have an "arguable claim"

of a violation of the Convention (cf. Eur. Court HR, Boyle and Rice v.

the United Kingdom judgment of 27 April 1988, Series A no. 131, p. 23,

para. 52).

     The Commission finds that the applicants cannot be said, in light

of its findings above, to have an "arguable claim" of a violation of

Article 6 paras. 1 and 3 (d) (Art. 6-1, 6-3-d) of the Convention

insofar as this last provision concerns the principle of equality of

arms.

     It follows that this part of the application must be rejected as

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

b)    In the light of, inter alia, the judgment of the European Court

of Human Rights in the case of Saunders against the United Kingdom

(judgment of 17 December 1996, to be published in Reports 1996), the

Commission considers that the remaining complaints under Article 6

paras. 1 and 2 (Art. 6-1, 6-2) of the Convention and the related

complaint under Article 13 (Art. 13) of the Convention must be brought

to the notice of the respondent Government in accordance with Rule 48

para. 2 (b) of its Rules of Procedure and the Government be invited to

submit their written observations on the admissibility and merits of

these complaints.

2.   The applicants complain that the Inspectors' investigation, the

criminal proceedings, their convictions, the resulting publicity and

the effects of the consequential blight on their reputation, including

the annulment of the first applicant's knighthood, constitute an unjust

interference with their rights under Article 8 para. 1 (Art. 8-1) of

the Convention.

     The Commission considers that, insofar as the Inspectors'

investigation, the criminal proceedings against the applicants and

their subsequent convictions could be regarded as an interference with

the applicants' rights under Article 8 para. 1 (Art. 8-1) of the

Convention, that this interference would in any event be justified

under Article 8 para. 2 (Art. 8-2) of the Convention on the following

grounds.

     The Commission recalls that the words "in accordance with the

law" refers essentially to domestic law. In determining whether an

interference was "in accordance with the law", it is primarily for the

national authorities to apply and interpret domestic law, but the

Convention institutions have a limited jurisdiction to control the

manner in which this is done (cf. No. 17441/90, Dec. 4.9.92, D.R. 73,

p. 201 and No. 21207/93, Dec. 30.11.94, D.R. 79, p. 31). For an

interference to be "in accordance with the law", the law must be

sufficiently accessible and precise. It must define the scope and

manner of exercise of the authority's functions with sufficient clarity

to protect the individual against arbitrariness (cf. No. 12327/86,

Dec. 9.5.89, D.R. 67, p. 123).

     The Commission finds no indication that the rules concerning the

investigation and proceedings at issue fell short of these requirements

and cannot find that the decisions to investigate, prosecute and

convict the applicants, as such, can be qualified as arbitrary. The

Commission further finds that the decisions to investigate, prosecute

and convict the applicants cannot be regarded as disproportionate to

the legitimate aim pursued, i.e. the prevention of crime. Consequently,

the Commission is of the opinion that these decisions can reasonably

be regarded as necessary in a democratic society for the prevention of

crime within the meaning of Article 8 para. 2 (Art. 8-2) of the

Convention.

     Insofar as the applicants complain under Article 8 (Art. 8) of

the Convention of the publicity surrounding the criminal proceedings

against them, the Commission recalls that, even though Article 8

(Art. 8) of the Convention imposes on the High Contracting Parties

principally negative obligations, it may also impose certain positive

obligations. However, States enjoy a margin of appreciation in this

matter. In establishing the positive obligations which may be imposed

on a State by Article 8 (Art. 8) of the Convention, Article 10

(Art. 10) of the Convention must be taken into account when an

applicant complains about the failure of the State to restrict a third

party's freedom of expression (cf. No. 10871/84, Dec. 10.7.86, D.R. 48,

p. 254).

     The Commission notes that the press coverage of the applicants'

case concerned a matter of public interest. Recalling the necessity in

a democratic society of supervisory controls over large commercial

activities in order to ensure good management practices and the

transparency of honest dealings (Eur. Court HR, Fayed v. the United

Kingdom judgment of 21 September 1994, Series A no. 294-B, p. 51,

para. 69), the Commission cannot find that the respondent Government,

in this respect, fell short of its obligations under Article 8

(Art. 8) of the Convention.

     Insofar as the applicants complain under Article 8 (Art. 8) of

the Convention of any consequential effects of their convictions, such

as the annulment of the first applicant's knighthood, the Commission

is of the opinion that, insofar as such effects could be regarded as

an interference with their rights under Article 8 para. 1

(Art. 8-1) of the Convention, these effects can be regarded as

justified under paragraph 2 of this provision.

     It follows that this part of the application must be rejected as

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

3.   The applicants complain that, given the unfairness and thus

unlawfulness of the criminal proceedings against them, the judgment and

their convictions affirmed by the Court of Appeal on 27 November 1995

constituted an impermissible interference with their right to respect

for their possessions protected by Article 1 of Protocol No. 1 (P1-1).

     Article 1 of Protocol No. 1 (P1-1) reads as follows:

     "Every natural or legal person is entitled to the peaceful

     enjoyment of his possessions. No one shall be deprived of

     his possessions except in the public interest and subject

     to the conditions provided for by law and by the general

     principles of international law.

     The preceding provisions shall not, however, in any way

     impair the right of a State to enforce such laws as it

     deems necessary to control the use of property in

     accordance with the general interest or to secure the

     payment of taxes or other contributions or penalties."

     The Commission notes that, following criminal proceedings, the

applicants were convicted and sentenced to the payment of substantial

fines and contributions towards the prosecution's costs.

     The Commission notes that Article 1 of Protocol No. 1 (P1-1)

explicitly contains the possibility for High Contracting States to

impose penalties. The Commission recalls that this includes the

possibility to impose fines for criminal offences (cf. No. 6753/74,

Dec. 19.12.74, D.R. 2, p. 118)

     The Commission recalls that it does not act as a court of appeal

from domestic courts. It is not competent to examine alleged errors of

fact or law committed by national courts, except where it considers

that such errors might have involved a possible violation of the rights

and freedoms set forth in the Convention (cf. No. 25062/94,

Dec. 18.10.95, D.R. 83, p. 77).

     It is true that under Article 6 (Art. 6) of the Convention, which

guarantees primarily procedural rights, the Convention organs are

competent to examine the question whether or not criminal proceedings

are in conformity with the requirements of this provision. Neither

Article 6 (Art. 6) nor any other provision of the Convention, however,

contains a right to have the correctness of convictions and sentences

imposed reviewed by the Convention organs.

     It follows that this complaint must be rejected as manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

4.   The applicants finally complain under Article 13 (Art. 13) of the

Convention that they have no remedy as regards their complaints under

Article 8 (Art. 8) and Article 1 of Protocol No. 1 (P1-1).

     The Commission finds that the applicants cannot be said, in light

of its above findings under these provisions, to have an "arguable

claim" of a violation of Article 8 (Art. 8) of the Convention or of

Article 1 of Protocol No. 1 (P1-1).

     It follows that this part of this complaint must also be rejected

as manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

     For these reasons, the Commission,

     DECIDES TO JOIN APPLICATIONS Nos. 29522/95, 30056/96 and

     30574/96;

     DECIDES TO ADJOURN the examination of the applicants' complaints

     under Article 6 paras. 1 and 2 of the Convention on the length

     of the proceedings and on the use in evidence of material

     obtained by the DTI Inspectors, both in itself and in conjunction

     with Article 13 of the Convention; and,

     unanimously,

     DECLARES INADMISSIBLE the remainder of the application.

     M.F. BUQUICCHIO                              J. LIDDY

        Secretary                                 President

   to the First Chamber                      of the First Chamber