AS TO THE ADMISSIBILITY OF

Application No. 24841/94

by A.A.

against the United Kingdom

The European Commission of Human Rights sitting in private on 30 November 1994, the following members being present:

MM. A. WEITZEL, President

C.L. ROZAKIS

F. ERMACORA

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

Mrs. J. LIDDY

MM. M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

G. RESS

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 the application introduced on 9 February 1994 by A.A. against the United Kingdom and registered on 8 August 1994 under file No. 24841/94;

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 applicant is British citizen born in 1945 and resident in London. He is represented before the Commission by Mr. J.P. Gardner, a solicitor practising in London. The facts as submitted by the applicant may be summarised as follows.

The applicant was a stockbroker.

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 PLC 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.

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.

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

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.

On 12 January 1987, the DTI contacted 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.

On 22 and 27 January 1987, the applicant was interviewed by the Inspectors. They required him to answer questions which he was reluctant to answer.

The applicant was interviewed again by the Inspectors on 26 May 1987.

On 30 September 1987, the applicant was arrested. He was charged with four counts of false accounting contrary to section 17(1)a Theft Act 1968 and two counts of theft contrary to section 1 (1) of the Theft Act 1968. The charges concerned two invoices and the success fees which were charged to Guinness following the company’s takeover of Distillers.

The applicant was one of seven defendants. In September 1989, the proceedings began with the determination of procedural issues. On 21 September 1989, the trial judge ordered that the applicant be tried with 3 other defendants.

The prosecution case against the applicant derived substantially from the transcripts of evidence from the interviews with the Inspectors. He sought to challenge the admissibility of this evidence relying on his state of health at the time and the risk of incrimination. After a voir dire, the trial judge in a ruling given on 21 November 1989, 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.

The applicant’s trial commenced on 16 February 1990. He did not give evidence. His defence was that share support transactions were City practice in takeovers and that he had not been dishonest.  The applicant was convicted of the charges and sentenced to a total of two years’ and six months imprisonment.

The applicant’s appeal to the Court of Appeal was heard on 16 May 1991. His appeal was dismissed. His sentence was reduced by nine months.

On 13  December 1991, following a hearing before the disciplinary committee of the Council of the Stock Exchange, the applicant was expelled from the Stock Exchange.

On 3 August 1992, the applicant’s legal representatives became aware of the existence of material obtained by and available to the prosecution prior to his trial which had not been disclosed to the defence .

In February 1994, the applicant requested the Secretary of State to refer his case back to the Court of Appeal under section 17(1)a of the Criminal Appeal Act 1968.

COMPLAINTS

The applicant complains of his trial. He complains of the use of incriminating material obtained under oppressive compulsory powers and that he was not informed of the communications between the Inspectors and prosecutors. He invokes Article 6 paras . 1 and 2 in this respect. He alleges that information relevant to his defence was suppressed by the prosecution and did not come to the knowledge of his legal representatives until 3 August 1992. He complains under Article 6 para 3 (d) of the inequality of arms resulting from the powers of investigation of the Inspectors from which the prosecution drew benefit. He complains under Article 7 that the acts in respect of which he was prosecuted did not constitute criminal offences at the time at which they were committed.

The applicant complains also that the investigation, the trial, conviction, blight on his reputation, expulsion from the Stock Exchange which were combined with intensive media interest constitute a continuing interference with his rights under Article 8  of the convention. He refers to the drastic effect on his private and family life and reputation.

Finally, the applicant complains under Article 13 of the Convention that he has no effective remedy for his complaints.

THE LAW

        However, the Commission recalls that Article 26 of the Convention provides that the Commission "may only deal with the matter ... within a period of six months from the date on which the final decision was taken". It is established case-law that "the final decision" refers only to domestic remedies which can be considered "effective and sufficient" for the purpose of rectifying the complaint ( eg . No. 9599/81, Dec. 11.3.85, D.R. 42 p. 33). Where there is no remedy available, the six month period runs from the date of the act or decision complained of ( eg . No. 9360/81, Dec. 28.2.83, D.R. 32 p. 211).

        In the present case, the final decision regarding the applicant’s conviction was given by the Court of Appeal on 16 May 1991 which is almost three years before the introduction of this case on 9 February 1994.  The applicant alleges that there is new evidence regarding the suppression of evidence at the applicant’s trial which only came to light subsequent to the proceedings. The Commission accepts that where an applicant subsequently discovers that exculpatory evidence was suppressed by the prosecution, this might raise issues of fairness as to the earlier proceedings which might otherwise fall outside the six month time-limit. However, the new evidence relied on by the applicant in this case is said to have come to the knowledge of the applicant’s legal advisers on 3 August 1992. The applicant’s complaints in these respects were submitted to the Commission on 9 February 1994, that is, more than six months after the date of this occurrence.

The applicant also submits that his request to the Secretary of State for the case to be referred back to the Court of Appeal in light of the new evidence is still pending and appears to rely on this as indicating that the matter has not been finally disposed of. However the possibility of the Secretary of State exercising his discretion to direct a fresh appeal cannot be considered as an effective remedy for the purposes of Article 26 of the Convention and cannot be taken into for the purposes of calculating the six month period (see mutatis mutandis No. 10530/83, Dec. 16.5.85, D.R.42 p. 171).

Furthermore,  the applicant submits that his state of health viz. his psychiatric condition prevented him from being able to lodge an application to the Commission earlier. The Commission notes that a letter dated 16 May 1994 from a consultant psychiatrist refers to the applicant having suffered depression and distress due to the events surrounding his trial, conviction and aftermath. It describes how  formal consultations ceased in June 1993 with a trend towards improvement.  It does not appear however from this letter that the applicant’s mental state was such as to preclude him from conducting his own affairs during this period as a whole. It would also appear that the applicant was represented by legal advisers during this time.

The Commission accordingly finds that an examination of the case does not disclose the existence of any special circumstances which might have interrupted or suspended the running of the six-month period.

        It follows that this part of the application has been introduced out of time and must be rejected under Article 27 para . 3 of the Convention.

2. The applicant has also invoked Article 8 of the Convention with regard to the drastic effect on his private, family and professional life of the events and publicity surrounding his trial, conviction and expulsion from the Stock Exchange.

The Commission again notes that the latest of the events referred to in the applicant’s complaints was more than six months before the introduction of his application before the Commission, namely, the expulsion from the Stock Exchange on 13 December 1991.

The applicant submits that he is victim of a continuing situation to which the six month time-limit is not applicable.

The Commission does not doubt that the applicant’s conviction and expulsion from the Stock Exchange continue to have serious repercussions in the applicant’s life. This however can be said of any individual who has endured a traumatic experience or received a penalty in criminal or disciplinary proceedings. The fact that an event has significant consequences over time for a person does not in itself constitute a continuing situation for the purposes of Article 26 of the Convention. The concept of a "continuing situation" refers to a state of affairs which operates by continuous activities by or on the part of the State to render the applicant a victim. (see eg . Nos. 11192/84, Dec. 14.5.87, D.R. 52 p. 227 and 12015/86, D.R. 57 p. 108). Since the applicant’s complaints have as their source specific events which occurred on identifiable dates, they cannot be construed as a continuing situation.

This aspect of the application must also be rejected as out of time pursuant to Article 27 para . 3 of the Convention.

3. Finally, as regards the applicant’s complaint that he has no effective remedy for the matters outlined above, the Commission notes that those complaints were introduced out of time. In light of those findings, this complaint under Article 13 of the Convention must also be rejected as out of time pursuant to Article 27 para . 3 of the Convention.

For these reasons, the Commission unanimously

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber        President of the First Chamber

     (M.F. BUQUICCHIO)        (A. WEITZEL)