AS TO THE ADMISSIBILITY OF

Application No. 24860/94

by E.E.

against the United Kingdom

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

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 2 March 1994 by E.E. against the United Kingdom and registered on 9 August 1994 under file No. 24860/94;

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 1939 and resident in London. He is represented before the Commission by Mishcon de Reya , solicitors practising in London. The facts as submitted by the applicant may be summarised as follows.

The applicant is a company director of a privately owned company, Z. Co.

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 18 December 1986, the Inspectors requested documents and other details from Z. Co. in relation to Z. Co.’s dealings in the shares of Guinness during the takeover. All the material requested was provided.

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 14 January 1987, the applicant was interviewed by the Inspectors concerning the way in which he was drawn in to the support operation for the Guinness bid and the arrangements for the success fees paid to two of Z. Co.’s wholly owned subsidiaries.

The applicant was interviewed again on 2 September 1987.

On 13 October 1987, the applicant was arrested. He was charged with eight offences, including conspiracy, theft and false accounting. The charges concerned two invoices which the subsidiary companies had presented for the costs of the purchase and indemnity for loss on the sale of shares in Guinness and for the success fee paid after the successful outcome of the Guinness bid for 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. After a voir dire held on the application of one of the applicant’s co-defendants, 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 based on his prompt and frank co-operation with the Inspectors as indicating his involvement had been in good faith and that there had been nothing improper in what he did.  The applicant was convicted of four charges and sentenced to a total of twelve months’ imprisonment and fined a total of £ 5 million.

Throughout the investigation and trial the applicant and his family were subjected to frenzied media campaign. This attention continued after conviction and in 1990 photographs were taken of him in imprisonment and circulated in the press.

The applicant’s appeal to the Court of Appeal was heard on 16 May 1991. His appeal was dismissed.

In 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 . This material related to share support transactions undertaken in six other takeovers which were considered to be acceptable practice by the professional advisers involved in them.

The applicant’s request to the Secretary of State for his case to be referred back to the Court of Appeal under section 17(1)a of the Criminal Appeal Act 1968 is still pending.

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.

The applicant complains also that the investigation, the trial, conviction, blight on his reputation, 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

1. The applicant complains of his trial, submitting, inter alia , that incriminating evidence was unfairly admitted, that evidence relevant to his defence was not disclosed by the prosecution, of inequality of arms and violation of the presumption of innocence. He invokes Articles 6 paras 1, 2 and 3 (d) in this context. He has also invoked Article 8 of the Convention with regard to the drastic effect on his private and family life and reputation of the events and publicity surrounding his trial and conviction.

        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 was almost three years before the introduction of the application on 2 March 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 in August 1992. The applicant’s complaints in these respects were submitted to the Commission on 2 March 1994, that is, more than six months after the date of this occurrence.

Furthermore,  the applicant submits that his request for 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 relies 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).

The applicant has also sought to argue that his complaints disclose a continuing situation to which the six month time-limit is not applicable. He submits that it is the state of law which allowed the admissibility of the evidence that is in issue and that the proceedings continue to have an effect on his life.

The Commission does not doubt that the applicant’s conviction continues to have serious repercussions in his 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 disclosing a continuing situation.

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. 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 that finding, 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)