THIRD SECTION

FINAL DECISION

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 Court of Human Rights ( Third Section) sitting on 6 July 1999 as a Chamber composed of

Mr J.-P. Costa, President ,

Sir Nicolas Bratza ,

Mr L. Loucaides ,

Mrs F. Tulkens ,

Mr W. Fuhrmann ,

Mr K. Jungwiert ,

Mr K. Traja , Judges ,

with Mrs S. Dollé, Section Registrar ;

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the applications against the United Kingdom introduced by I.J.L. on 30 November 1995 and registered on 12 December 1995 under file no. 29522/95, by G.M.R. on 18 December 1995 and registered on 5 February 1996 under file no. 30056/96, and by A.K.P. on 8 December 1995 and registered on 25 March 1996 under file no. 30574/96.

Having regard to the reports provided for in Rule 49 of the Rules of Court;

Having regard to the observations submitted by the respondent Government on 7 August 1997 and the observations in reply submitted by the applicants on 14, 16 and 28 October 1997; the supplementary observations submitted by the respondent Government on 27 February 1998 and the supplementary observations in reply submitted by the applicants on 10 July 1998; and the further observations submitted by the applicants on 12 and 25 February and 12 April 1999 and the observations in reply submitted by the respondent Government on 19 May 1999 to which the applicants submitted a reply on 14 June 1999;

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 , a firm of solicitors based in 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 , a firm of solicitors based in London, and by Mr J.P. Gardner.

The third applicant is a former stockbroker and resides in London. He is represented by Peters & Peters, a firm of solicitors based in London, and by Mr J.P. Gardner.

A. Particular circumstances of the case

The facts, as submitted by the applicants, are closely related to the facts of the Saunders case (Saunders v. the United Kingdom judgment of 17 December 1996, Reports of Judgments and Decisions 1996-VI) and may be summarised as follows.

1. 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 takeover 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. According to the third applicant the share price rose in line with the range of the company’s market sector and the fall was a consequence of normal market forces.

There were allegations and rumours of misconduct during the bid to the effect that the substantial increase in the quoted Guinness share price during the bid had been 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. It was alleged that 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, if true, would have been unlawful (1) because they were not disclosed to the market under the City Code on Takeovers 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.

It was further alleged that supporters who had purchased shares under the unlawful share support operation were indemnified and rewarded, and that some of those who had helped find supporters were rewarded by the payment of large fees which had also come from Guinness’ funds. It was rumoured that 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.

These allegations and rumours led the Secretary of State for Trade and Industry on 28 November 1986 to appoint Inspectors pursuant to sections 432 and 442 of the 1985 Act to enquire into the acquisition of Distillers by Guinness and to investigate the affairs of Guinness.

2. The Inspectors’ investigation

The investigation began on 1 December 1986. 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 18 December 1986 the Inspectors requested the second applicant to provide documents relating to his company’s dealings in the shares of Guinness during the takeover bid. The second applicant’s solicitor provided the materials on 24 December 1986 which indicated that his company had been approached by the third applicant about supporting the Guinness takeover bid.

On 12 January 1987 the Inspectors informed the Department of Trade and Industry (“DTI”) of certain matters and, on 13 January 1987, a note from the DTI solicitor recorded that there was concrete evidence of criminal offences having been committed. On the same day 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. All the applicants maintain that they were unaware of these arrangements when they were interviewed by the Inspectors.

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 37(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 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 co-operate although they reserved the right to conduct their investigations as they thought right. The applicants maintain that they were never notified of these arrangements during their respective interviews.

On 5 February 1987 Mr 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 interviews conducted by the Inspectors were surrounded by a constant wave of media publicity.

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 interviews related to his involvement in advising Guinness on the bid for Distillers and in identifying investors prepared to support the bid by purchasing Guinness shares.

The second applicant was interviewed by the Inspectors on two occasions: on 14 January and 2 September 1987. The interviews were focused on the way in which he was drawn in to the support operation for the Guinness bid and on the arrangements for the payment of the success fee to his company.

The third applicant was interviewed by the Inspectors on 22 and 27 January 1987. He was accompanied by his solicitor throughout these interviews during which he was pressed to answer a number of specific questions. He maintains that he sought either in person or through his solicitor to decline to answer them but was advised throughout of the consequences of his failure to respond. He was further interviewed by the Inspectors on 26 May 1987. On 17 July 1987 the third applicant’s solicitors confirmed the transcripts of the evidence which he had given, subject to a small amendment.

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.

3. 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.

On 7 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 its 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. The third applicant’s application to be tried with the latter category of defendants was refused.

From 6 to16 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, that 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 have been 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.

4. 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. According to the applicants, the testimony of Mr Saunders was irreconcilable with the evidence which each had given to the Inspectors and prejudicial to their case that their involvement in the share support operation had not been dishonest. The third applicant maintains that his participation in the operation was in line with City practice on takeovers , but that he was unable to obtain witnesses who would be prepared to testify to this for fear of repercussions engendered by the criminal proceedings. He claims that at the time of his trial the prosecution had in its possession extensive material arising out of other investigations into takeover bids which confirmed that share support operations involving indemnities to the purchasers of shares were regarded as an acceptable practice in the City.

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. In the third applicant’s submission the prosecution had acknowledged at the voir dire that this was in fact the only evidence against him.

The transcripts of the interviews were read to the jury by the prosecution over a three-day period during the trial (days 45 to 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 GBP 3,000,000, with a total of five years’ imprisonment in default. He was also ordered to contribute GBP 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 GBP 5,000,000, with a 4-year consecutive prison sentence in default. He was also ordered to contribute GBP 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 2½ years. He was also ordered to contribute GBP 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.

5. 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 1987. He concluded 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 4 July 1991 leave to appeal was refused by the House of Lords.

6. The applicants’ appeal

All three 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 2½ 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 GBP 300,000 each. A similar order was made by the Court of Appeal in favour of the first applicant.

On 13 December 1991 the Disciplinary Committee of the Council of the Stock Exchange ordered that the third applicant be expelled from the Stock Exchange.

On 20 July 1991 Mr Saunders lodged an application (application no. 1918/91) with the European Commission of Human Rights.

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

On 3 August 1992 the applicants became aware for the first time of the existence of part of the material obtained by and available to the prosecution prior to their trial and which had not been previously disclosed. This evidence had been disclosed by the prosecution to the defendants in the second Guinness trial on 20 December 1991. They maintained that this material showed that share-support operations had been undertaken in relation to a number of other takeovers and had been considered to be an 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). The Licensed Dealers’ Tribunal had taken the view that share-support operations were an acceptable City practice.

The applicants sought disclosure of this material from the prosecuting authorities. In view of their failure to do so, they requested the Home Secretary to refer the case back to the Court of Appeal pursuant to section 17(1)(a) of the Criminal Appeal Act 1968. On 22 December 1994 the Home Secretary referred the whole case of the applicants and Mr Saunders to the Court of Appeal. The European Commission stayed consideration of the admissibility of Mr Saunders’ application pending the outcome of the referral proceedings. After the case was referred the prosecution disclosed the remainder of the material. The hearing before the Court of Appeal took place between 16 and 26 October 1995.

In its judgment of 27 November 1995, the Court of Appeal rejected the first applicant’s appeal on all but one count, quashing his conviction on one of the conspiracy counts. The appeals by the second and third applicants and Mr Saunders were dismissed.

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 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 criticise 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] regime 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.”

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.

B. Relevant domestic law and practice

1. 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))

2. 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.

3. 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 §§ 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 cooperation between the DPP and the DTI which postponed the opening of a police investigation and thereby deferred 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 their 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 have been 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 § 1 of the Convention that the criminal proceedings against them were not determined within 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 § 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 the 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 under Article 13 of the Convention that they have no remedy as regards their complaints under Article 6 of the Convention.

The applicants finally complain that the authorities of the respondent State have unjustifiably hindered the exercise of their right of individual petition in breach of Article 34 of the Convention. In this connection they assert that the authorities have delayed and hindered the making available of materials which substantiate their allegations.

PROCEDURE

The first application (no. 29522/95) was introduced on 30 November 1995 and registered on 12 December 1995; the second (no. 30056/96) was introduced on 18 December 1995 and registered on 5 February 1996; and the third (no. 30574/96) was introduced on 8 December 1995 and registered on 25 March 1996.

On 9 April 1997 the European Commission of Human Rights decided to join the three applications, to communicate the applicants’ complaints concerning Article 6 of the Convention, both alone and in conjunction with the complaint under Article 13, and to declare the remainder of the application inadmissible.

The Government’s written observations were submitted on 7 August 1997, after an extension of the time-limit fixed for that purpose. The applicants replied on 14, 16 and 28 October 1997 respectively, also after an extension of the time-limit.

On 1 November 1998, by operation of Article 5 § 2 of Protocol No. 11 to the Convention, the cases fell to be examined by the Court in accordance with the provisions of that Protocol.

The Government were granted leave to submit observations on the applicants’ observations in reply and these were submitted on 27 February 1998. The applicants’ further observations on the Government’s observations were submitted on 10 July, 13 and 18 August and 30 September 1998 after extensions of the time-limits.

The applicants were granted leave to submit further observations on their complaints under Article 6 of the Convention. These were submitted on 12 and 25 February and 12 April 1999. On 19 May 1999 the Government submitted further observations in reply, after an extension of the time-limit. On 14 June 1999 the applicants submitted their observations in reply, also after an extension of time.

THE LAW

The applicants complained that their rights to a fair procedure guaranteed under Article 6 of the Convention had been breached in several respects, that they had been denied an effective remedy in breach of Article 13 and that the respondent Government were in breach of their undertakings under Article 34.

the six-month rule

The Government contended that the applicants had failed to comply with the six ‑ month rule as laid down in Article 35 § 1 of the Convention and on that account their applications should be declared inadmissible under Article 35 § 4 of the Convention. They submitted that time began to run for the purposes of calculating the six-month period as of 16 May 1991 when the Court of Appeal rejected the second and third applicants’ appeal with reference to the earlier Court of Appeal judgment in R. v. Seelig . At the very latest it might be taken to run as of 24 July 1991 when the House of Lords refused Mr Seelig leave to appeal from the Court of Appeal’s decision. On either date the applications must be taken to be out-of-time.

Unlike Mr Saunders whose application, introduced in July 1988, was registered on 11 December 1991, the applicants only lodged theirs after the Court of Appeal had rejected their arguments on which the Home Secretary’s reference of 22 December 1994 was based. Those arguments, the Government recalled, were that the prosecution had failed to disclose materials which would have been of assistance to the applicants’ defence. The Home Secretary’s reference did not bear on the use made by the prosecution at their trial of the DTI transcripts. The applicants have offered no explanation as to why they did not complain on this point to the Convention institutions along with Mr Saunders, and it was only fortuitous that the Court of Appeal heard the applicants’ submissions on the matter. The Government stated that even if the Court were to accept, contrary to their view on the matter, that the applicants’ complaints concerning improper collusion and non-disclosure to the defence were lodged within the six-month time-limit, that time-limit had plainly not been observed in respect of their complaint about the use made of the DTI transcripts at their trial.

The Government further averred that a decision by the Home Secretary to refer a case back to the Court of Appeal is a purely discretionary remedy exercisable without limit in time. In their view that remedy cannot be invoked by the applicants to extend by four years the time-frame for the running of the six-month rule or to disturb the meaning attributed to the expression “the final decision” in Article 35 § 1 of the Convention.

The applicants disputed this challenge to the admissibility of their applications, drawing attention to the fact that the Government’s stance on the legal value of a reference to the Court of Appeal from the standpoint of domestic remedies was at variance with the position they had adopted on this point in Mr Saunders’ application. They contended that the “final decision” for the purposes of applying the six-month rule was constituted either by the Court of Appeal’s second judgment of 27 November 1995, or the decision of that court on 4 December 1997 declining to certify a point of law of public importance for the purposes of an appeal to the House of Lords. Having regard to the dates on which the applications were lodged, it has to be concluded that each applicant has complied with the six-month rule.

The applicants stressed that the issue of the prosecution’s deliberate non-disclosure of documents to the defence was examined for the first and only time by the Court of Appeal acting on the Home Secretary’s reference. The deliberate withholding of those documents meant that the applicants were never in a position to conduct their defence properly at their trial. In their submission, it was their discovery that the prosecution had withheld evidence from them which prompted their request to have their cases referred back to the Court of Appeal. Full disclosure of the materials held by the prosecution was only made towards the end of September 1995. Had they had access to those documents at the time of their trial, they would have approached their defences differently, including by calling witnesses to testify about share-support practices in the City of London. For that reason the applicants maintained that the Court of Appeal at the nine-day hearing in October 1995, exercising full jurisdiction in respect of the whole of their criminal trial, conducted the only proper review of the complaints now before the Strasbourg Court, and the judgment of the Court of Appeal of 27 November 1995 must be considered the starting point for the running of the six-month rule.

The Court observes that a request to the Home Secretary to refer a case back to the Court of Appeal is a discretionary gateway to a further remedy and an avenue of redress which need not be exhausted by an applicant for the purposes of compliance with the exhaustion of domestic remedies rule under Article 35 § 1 of the Convention. On that understanding, a decision of the Home Secretary rejecting an applicant’s request to refer a case back cannot be considered a “final decision” within the meaning of the same provision marking the beginning of the running of the six-month rule. To decide otherwise would undermine the purpose of the six-month rule which is to maintain legal certainty and to ensure that cases raising issues under the Convention are examined within a reasonable time.

The Court must, however, have due regard to the particular circumstances surrounding the invocation of an extraordinary remedy. It notes in this connection that the applicants made timely use of their right to petition the Home Secretary once they became aware of the existence of materials which, in their view, would have had a decisive bearing on the outcome of their trial. Furthermore, the Home Secretary’s reference was not confined to specific aspects of their criminal trial. The Court of Appeal was seized of the entirety of the trial proceedings, including the use made of the transcripts of the evidence which they had been compelled to provide the DTI Inspectors, the alleged impermissible degree of cooperation between the agencies involved and the non-disclosure by the prosecution of materials relevant to their defence. It is noteworthy that the Court of Appeal in its judgment of 27 November 1995 addressed all of these matters which now form the core of the applicants’ case before the Court. The judgment of the Court of Appeal of 27 November 1995 must be considered in the circumstances to be res judicata of the applicants’ complaints under the Convention.

Having regard to these specific considerations, the Court considers that time began to run for the purposes of the six-month rule as of the date of delivery of the Court of Appeal’s judgment, namely 27 November 1995. Each applicant lodged his application with the Commission within six months of that date. The Government’s objection to the admissibility of their applications under this head must on that account be rejected.

The Court will accordingly examine the admissibility of the applicants’ specific complaints under Article 6 of the Convention, which reads, as relevant:

“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; ... .”

B. As to the use made by the prosecution of the DTI transcripts at the applicants’ trial

The applicants maintained that the fairness of their trial was vitiated on account of the use made by the prosecution of the DTI transcripts of their evidence. The third applicant maintained that the prosecution had in fact conceded that he would not have been put on trial had it not been for the transcripts. However, he stood trial along with three other co-accused whose evidence to the Inspectors was read out to the jury. Moreover, the testimony of Mr Saunders from the witness box in response to the DTI transcripts had prejudiced the fairness of his and his co-applicants’ trial. The third applicant asserted in this connection that he had in fact sought to be tried separately to avoid damage being caused to his defence, but this had been refused.

The Government observed that, given the use made by the prosecution of the answers which the applicants supplied to the Inspectors, their complaints were materially indistinguishable from Mr Saunders’ complaint. The Court found that there had been a breach of Mr Saunders’ rights under Article 6 § 1, that no separate issue arose under Article 6 § 2 and that it could not speculate for the purpose of an award of just satisfaction what would have been the outcome of his trial had the transcripts of his evidence to the Inspectors not been put before the domestic court. The Government conceded that a similar ruling in respect of the applicants’ complaint could be envisaged.

As regards the substance of this complaint under Article 6 §§ 1 and 2 of the Convention, the Court considers, in the light of the parties’ submissions, that it raises complex issues of law and fact under the Convention, the determination of which should depend on an examination of its merits. The Court concludes, therefore, that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.

C. As to the alleged collusion between the DTI and the prosecuting authorities

The applicants stated that the whole of the material obtained from the Inspectors from their interviews was provided directly to the DTI and then passed to the Director of Public Prosecutions (“DPP”) in furtherance of carefully worked out arrangements among the agencies involved. When giving evidence to the Inspectors the applicants were completely unaware of these arrangements according to which the Inspectors became contributors to proceedings involving the determination of criminal charges. The result was to oblige them to give evidence in the absence of the procedural guarantees which are afforded to an accused person faced with a criminal charge and to postpone, intentionally, both the intervention of the police and the formal preferment of criminal charges. The applicants insisted that it was not open to Mr Saunders to make the same submissions in his proceedings before the Convention institutions having regard to the timing of his interviews with the Inspectors and his position as Chairman of a company under investigation. The Government were accordingly mistaken in assimilating their complaints with those advanced by that applicant.

As proof of this collusion the applicants relied on materials which had only been disclosed to them in mid-1995 by the authorities for the purposes of their second appeal to the Court of Appeal. These materials took the form of, inter alia , records of meetings, minutes and notes exchanged between officials. They contended that those materials clearly reveal that on 16 December 1986 it was clear that the DTI and the Inspectors were already liaising as to the way in which the Inspectors’ conduct of the investigation could provide evidence for use in subsequent criminal trials and that, prior to their interviews, the Inspectors already possessed concrete evidence of very substantial potential criminal transactions. On 12 January 1987 the Inspectors notified the Secretary of State of the evidence in their possession and on 13 January 1987 the latter drew it to the attention of the DPP. By letter from the Secretary of State dated 29 January 1987 the Inspectors were required to provide the Secretary of State with any information they had relating to possible criminal offences and key documents and transcripts of evidence given to them. At a meeting held on 30 January 1987 attended by the Inspectors it was formally agreed that transcripts and relevant documents be first passed to the DTI and thereafter that copies be forwarded to the lawyers advising the DPP. The applicants stressed that the decision to pass the first piece of information to the prosecution was in fact taken on 12 January 1987. According to the applicants, this concerted strategy had been put in place in order to avoid the Inspector’s task being hampered by the commencement of a police investigation precisely because of the greater powers of investigation without safeguards which the Inspectors could exercise. Furthermore, the fact that these arrangements were kept hidden from the applicants ensured their continued cooperation .

The applicants drew attention to the fact that, in their submissions to a House of Commons Select Committee on Trade and Industry which undertook a review of the investigatory powers of the Inspectors, the Law Society recommended, inter alia , that persons who are likely to be accused must be given the same rights during the procedure before the Inspectors as would be enjoyed under the criminal law. In the applicants’ view, the significance of this recommendation has to be seen in the context of the great uncertainty in domestic law governing the true extent of the Inspector’s powers under the 1985 Act and the lack of safeguards to prevent the impermissible degree of cooperation between the Inspectors and the prosecuting authorities. The applicants also stress that in the evidence which he gave to the Select Committee, the Deputy Director of Prosecutions at the relevant time confirmed that he had been in informal contact with the police before the actual decision was taken on 5 May 1987 to carry out a police investigation. In his evidence he stated that the strategy worked out had been designed to allow the police inquiry to run one step behind the Inspectors’ investigation, given that the Inspectors were passing on the transcripts of the evidence which they were collecting from the applicants.

The Government argued that this issue was also advanced by Mr Saunders before the Convention institutions in his application. Furthermore, this complaint was addressed in detail by the Court of Appeal and rejected. It was also rejected by the Court in its judgment in the Saunders v. the United Kingdom case.

The Government, in addition, disputed the applicants’ reliance on the report of the House of Commons Select Committee. They argued that, following a wide-ranging investigation into the investigative powers of the DTI Inspectors including the rights of the defence, the Select Committee had concluded that there was no need to recommend any major changes to the current system. In particular, it was not recommended that the investigation of the Inspectors should be brought to an end once it became apparent that offences might have been committed or that the Inspectors should be precluded from passing on materials gathered in the course of the investigation to the prosecuting authorities. In the Government’s submission it was significant that the Court of Appeal had not found it necessary to refer to the Report when establishing as fact in the applicants’ case that there had been no abuse or improper collusion between the Inspectors and the prosecuting authorities.

As regards the substance of this complaint under Article 6 §§ 1 and 3 (d), the Court considers, in the light of the parties’ submissions, that it raises complex issues of law and fact under the Convention, the determination of which should depend on an examination of its merits. The Court concludes, therefore, that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.

D. As to the non-disclosure of materials of assistance to the applicants’ defence

The applicants stated that three years elapsed from the date when they first became aware of materials which had not been disclosed before or during their trial and the date when final disclosure was actually made. It took another two years before the authorities granted them authorisation to use the materials for the purposes of the Convention proceedings. The resistance of the authorities to disclosure illustrated their concern about the applicants being apprised about the impermissible degree of cooperation between the agencies in bringing them to trial. The refusal to disclose the materials on grounds of public interest immunity or legal professional privilege took no account of the rights of the defence. The applicants stated in this connection that the trial judge in the voir dire proceedings did not see the documents in respect of which the prosecution claimed immunity and accordingly never assessed whether the content of the documents was of such a nature that their non-disclosure outweighed the interests of justice. In consequence their right to an adversarial procedure had been severely impaired. Furthermore, in its second judgment the Court of Appeal did not address this issue from the angle of the fairness requirements under Article 6 of the Convention since it did not focus on the stage when the applicants were actually charged and entitled to the procedural safeguards inherent in the Convention notion of “fairness”.

The applicants further stressed that it was central to their defence to the allegations of dishonesty that their actions were consistent with normal stock market practice. They contended that the third applicant had applied on 20 November 1989 to obtain evidence in this respect from the City Panel on Takeovers and Mergers. Despite the prosecution’s claim that it was protected by public interest immunity, the trial judge ordered the evidence to be made available to the defence with reference to the Attorney General’s Guidelines on Disclosure. However, there was much more relevant material in the prosecution’s possession which should have been disclosed before or at the trial, including materials on the operation of the share indemnity system in the context of other takeovers . That material only came to light when it was disclosed for the purposes of the Guinness 2 trial. The Court of Appeal ruled in their favour that that material should also have been disclosed to the applicants. Regrettably it also found that this procedural irregularity occasioned no prejudice to them. However, in view of their submissions on the impermissible degree of cooperation between the Inspectors and other agencies, including with respect to the use of the transcripts of their interviews, it has to be concluded that the proceedings looked at as a whole were unfair.

In the applicants’ submission, the unfairness of their trial was further compounded by the fact that the authorities also failed to disclose that the Inspectors’ investigation, after 12 January 1987, had been deliberately transformed into a procedure involving the determination of criminal charges against the applicants. They argued that they should have been put on notice that their legal situation had changed in order to enable them to adapt their conduct accordingly in the light of the procedural requirements of both Articles 5 and 6 of the Convention.

The Government stressed that this complaint too was raised before the Court of Appeal second time around as well as before the European Court of Human Rights in the Saunders v. the United Kingdom case. The complaint was rejected at both instances. The Government further asserted that the applicants were authorised to use documents in the Convention proceedings which they had been permitted to use for the proceedings before the Court of Appeal on condition that they provided the appropriate undertakings as to use.

As regards the substance of this complaint under Article 6 §§ 1 and 3, the Court considers, in the light of the parties’ submissions, that it raises complex issues of law and fact under the Convention, the determination of which should depend on an examination of its merits. The Court concludes, therefore, that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.

E. As to the reasonableness of the length of the proceedings against the applicants

The applicants maintained that they were subject to a criminal charge as of 12 January 1987. The applicants stated that on this date a decision was taken to use the evidence gathered by the DTI Inspectors in the course of the interviews for the purposes of prosecuting them. The proceedings ended with the judgment of the Court of Appeal of 27 November 1995 arising out of the Secretary of State’s reference. In all, the criminal proceedings lasted 8 years and 10 months, which must be considered an unreasonable length of time and therefore a breach of Article 6 § 1 of the Convention.

The applicants insisted that the time which elapsed between the date of the delivery of the first judgment of the Court of Appeal in May 1991 and the date of the Secretary of State’s decision to refer their case back to the Court of Appeal on 22 December 1994 had to be taken into account since this procedure had to be invoked on account of the fact that the prosecution had deliberately withheld materials of assistance to the defence. The resistance of the authorities to disclosing the materials had been maintained in the phase ultimately leading to the referral decision and had inevitably delayed the taking of that decision. The Court of Appeal in its second judgment ruled that the materials should have been disclosed to the defence before their trial. In the applicants’ submission this showed that the delay in the proceedings had to be attributed to the authorities. They further criticised the length of the 11 ‑ month period taken by the Court of Appeal to consider the parties’ arguments and deliver its second judgment.

The Government replied that the second and third applicants had raised this complaint only with respect to the time taken by the Secretary of State to refer their case back to the Court of Appeal. However, neither of the applicants had taken any steps under domestic law to require the Secretary of State to expedite the taking of his decision. The Government submitted that it would have been open to the applicants to seek an order of mandamus in this connection. They failed to do so and they should on that account be considered to have failed to exhaust domestic remedies in respect of this complaint.

In an alternative submission, the Government maintained that the second and third applicants were never charged earlier than 13 October 1987 and 23 March 1988 respectively, although they conceded that since the third applicant had been arrested in the United States of America on 30 September 1987 this latter date could be construed as the earliest date when he was charged. Furthermore, the total period of some 3 years and 8 months which elapsed between the date of charge and the judgment of the Court of Appeal in May 1991 upholding their conviction could not be regarded as unreasonable in length. The Government invited the Court to have regard to the complexity of the case, as exemplified in the fact that the first judgment of the Court of Appeal ran to 87 pages.

The Government stressed that, when assessing the reasonableness of the length of the criminal proceedings, no account should be taken of the proceedings after the Court of Appeal’s judgment in May 1991, since what followed thereafter was the result of the exercise of a wholly exceptional and discretionary remedy. In the alternative, they pleaded that the period between May 1991 and the date of the applicants’ requests for a reference to be made (January 1993 as regards the third applicant and February 1993 as regards the second applicant; the first applicant applied for a reference in June 1993) should be excluded, given that no proceedings took place during that period. It was inevitable that the decision of the Secretary of State to refer the case back to the Court of Appeal in December 1994 was marked by delay given that the Serious Fraud Office had to investigate the allegations which the applicants had made in respect of the withholding of evidence from the defence. In addition the length of the period between the date of the reference of the whole case back to the Court of Appeal and the delivery of the Court of Appeal’s second judgment on 27 November 1995 was explained in terms of the complexity of the issues before the court whose judgment ran to 113 pages.

Accordingly, even if the events surrounding the reference and the delivery of the Court of Appeal’s second judgment were to be taken into account, the length of the proceedings viewed as a whole, and having particular regard to the complexity of the case, did not exceed a reasonable time.

As regards the substance of this complaint under Article 6 § 1, the Court considers, in the light of the parties’ submissions, that it raises complex issues of law and fact under the Convention, the determination of which should depend on an examination of its merits. The Court concludes, therefore, that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.

F. As to the alleged denial of an effective remedy

The applicants also invoked Article 13 of the Convention, which 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.”

The applicants contended that since the Convention is not incorporated into the domestic law of the respondent State they were unable to argue that the proceedings taken against them were unlawful contrary to Convention standards.

The Court recalls that, in accordance with its established case-law Article 13 of the Convention does not go so far as to guarantee a remedy allowing a Contracting State’s laws as such to be challenged before a national authority on the ground of being contrary to the Convention or to equivalent domestic legal norms (see, for example, the James and Others v. the United Kingdom judgment of 21 February 1986, Series A no. 98, p. 47, § 85). In any event, the Court considers it unnecessary to look at the case under Article 13 of the Convention in view of its decision in respect of the applicants’ complaints under Article 6 § 1; this is because the requirements of that provision are less strict than, and are here absorbed by, those of Article 6 § 1.

It follows that this complaint is inadmissible as being manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention.

G. As to the authorities’ refusal to allow the applicants’ to use materials for the purposes of the Convention proceedings

The applicants also maintained that the authorities of the respondent State had interfered with the exercise of their right of individual petition, in breach of Article 34 of the Convention, which provides:

“The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.”

The applicants submitted in this connection that they had been unjustifiably hindered in the Convention proceedings on account of the respondent Government’s delay in authorising them to use materials which had been made available to them solely for the purposes of the second Court of Appeal proceedings. They drew attention to the fact that Mr Saunders had been able to adduce these same materials in support of his application to the Convention institutions. However, it took two years of negotiations with the authorities before these and other highly relevant materials which had subsequently come to light could be used by them in the Strasbourg proceedings, notwithstanding their willingness to comply with all appropriate undertakings in respect of their confidentiality. The applicants further contended that the respondent Government have provided no adequate justification for their failure to state that there are no other documents in existence which may be of relevance to their case.

The Government denied this allegation and stressed that the applicants had been afforded access to the materials in question for the purposes of their appeal to the Court of Appeal and they were authorised to make use of the materials in the proceedings before the Court on condition that they undertook to limit their use to the Convention proceedings. They pleaded that the applicants were now seeking without justification to broaden the scope of their complaint by claiming access to classes of documents which would not materially assist them in pursuing their specific Convention complaints.

The Court considers that it was not unreasonable for the authorities of the respondent State to attach conditions to the use which could be made of the materials which had been disclosed for the purposes of the second set of Court of Appeal proceedings. In any event, the applicants have not substantiated that the policy adopted by the authorities with respect to the use of the materials was intended to hinder the pursuit of the Convention proceedings, nor that any delay in negotiating the application of those conditions to particular categories of documents has prejudiced the applicants.

The Court would also add that while it is open to a respondent State to examine the nature of any request for access to official documentation and to determine whether there exist compelling reasons for not disclosing it, the Court must reserve to itself the right to examine a complaint that documents of assistance to an applicant in proceedings before it are being unjustifiably withheld by the authorities of the respondent State. It recalls in this respect that where any such document can help clarify the facts of a case, the Court may, pursuant to Rule 42 of its Rules of Procedure, order its production.

The Court concludes that the applicants’ complaint under this head is inadmissible as being manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court, unanimously,

DECLARES ADMISSIBLE , without prejudging the merits of the case, the applicants’ complaints that that they were denied a fair hearing on account of (1) the use made by the prosecution of the evidence which they supplied under statutory powers; (2) the alleged improper collusion between the agencies involved; (3) the alleged failure of the prosecution to disclose materials of relevance to their defence; and (4) the alleged unreasonableness of the length of the criminal proceedings;

DECLARES INADMISSIBLE the remainder of the application.

S. Dollé J.-P. Costa

Registrar President