Information Note on the Court’s case-law 22

September 2000

I.J.L. & Others v. the United Kingdom - 30056/96, 29522/95 and 30574/96

Judgment 19.9.2000 [Section III]

Article 6

Criminal proceedings

Article 6-1

Fair hearing

Self-incrimination – use at trial of statements made on pain of a sanction to inspectors investigating a company takeover: violation

Facts : Following the takeover of Distillers by Guinn ess in 1986, Department of Trade and Industry inspectors were appointed to investigate alleged misconduct involving an unlawful share support operation aimed at inflating the price of Guinness shares. The investigation began in December 1986 and quickly un covered evidence of criminal offences. The Director of Public Prosecutions (DPP) was informed, but it was decided to allow the inspectors to proceed with their investigation and pass the transcripts to the Crown Prosecution Service. The applicants were int erviewed by the inspectors. In May 1987 the DPP asked the police to carry out a criminal investigation and the transcripts and documents from the inspectors’ investigation were handed over to the police. The applicants were subsequently charged with variou s offences and tried along with Ernest Saunders (see Saunders v. the United Kingdom judgment of 17 December 1996). The third applicant challenged the admissibility in the criminal proceedings of the statements made to the inspectors, but the judge held tha t, while the inspectors could ask incriminating questions and the interviewee had a duty to answer them, there had been no element of oppression. A large part of the evidence against the applicants was that gathered by the inspectors, including their state ments. Each of the applicants was convicted on several counts. Apart from making modifications to the sentences imposed, the Court of Appeal dismissed the applicants’ appeals in 1991. However, in 1992 they became aware that material in the possession of th e prosecution had not been disclosed and in 1994 the Home Secretary acceded to their request to refer the case to the Court of Appeal. The Court of Appeal, however, dismissed the case (apart from quashing a conviction on one count) in 1995. It rejected the applicants’ complaint concerning the admissibility of their statements and also their allegation of improper collusion with the aim of using the inspectors to gather evidence for the prosecution. It also found that the non-disclosure of material, while a procedural irregularity, had not prejudice the applicants. Leave to appeal to the House of Lords was refused.

Law : Article 6 § 1 (use of the statements) – The Government conceded that the applicants’ complaints concerning the use of their statements to the inspectors were materially indistinguishable from that of Mr Saunders, in whose case the Court had found a violation. As with Mr Saunders, a significant part of the prosecution case consisted of the transcripts of the interviews with the inspectors under statutory compulsion. There is thus no reason to reach a different conclusion in this case.

Conclusion : violation (unanimously).

Article 6 § 1 (alleged improper collusion) – The applicants’ allegations of improper collusion between the Department of Trade and Industry and the DPP’s office was carefully considered but ultimately rejected by the Court of Appeal on the fact, and due weight must be given to this finding. Neither the assessment of the evidence nor the establishment of the facts was manifestly un reasonable or arbitrary. While the Court of Appeal did not have regard to the self-incrimination issue, a legal requirement to give information to an administrative body does not necessarily infringe Article 6: whether it does so will depend on the use mad e of the information. The inspectors’ functions were essentially investigative, their purpose being to ascertain and record facts which might subsequently be used as the basis for action by other authorities, and a requirement that such a preparatory inves tigation be subject to the guarantees of a judicial procedure would unduly hamper the effective regulation of complex financial and commercial activities. The central issue in the applicants’ case is the use made of their statements and the claim that Arti cle 6 guarantees should have attached already to the proceedings before the inspectors does not alter the conclusion that there was a violation in that respect. While the third applicant argues that he would never have been put on trial in the absence of t he transcripts, the Court cannot speculate as to the other means that might have been deployed by the prosecution and, in any event, Article 6 does not guarantee any right not to be prosecuted but the right to a fair procedure in the determination of crimi nal charges, an issue which the Court has already considered.

Conclusion : no violation (unanimously).

Article 6 § 1 (non-disclosure by prosecution) – All the materials at issue were disclosed to the applicants prior to the start of the proceedings in the Court of Appeal, which extensively reviewed them and considered the possible prejudice which they might have had. T he particular defect identified by the Court of Appeal was remedied by the subsequent and extensive review conducted in the reference proceedings. The Court of Appeal was able to consider the impact of the new material on the safety of the conviction in th e light of detailed argument from the defence lawyers.

Conclusion : no violation (unanimously).

Article 6 § 1 (length of proceedings) – The period between the close of the Court of Appeal proceedings in 1991 and the decision of the Home Secretary to refer t he cases back to the Court of Appeal was not in any way characterised by the determination of the charges against the applicants. That period should not, therefore, feature in the assessment of the relevant time-frame. Moreover, since the inspectors were n ot engaged in the determination of charges either, the starting point in relation to each applicant is the date on which he was charged (or, in the case of the third applicant, arrested). The period ended with the Court of Appeal’s second judgment in 1995 and, excluding the period prior to the reference mentioned above, the proceedings lasted about four and a half years in total. The proceedings were of undoubted complexity;  there was no period of delay attributable to the applicants, but neither was there any period of delay for which the authorities could be held responsible. The period of around three years and eight months between the dates on which the applicants were charged and the Court of Appeal’s first judgment cannot be considered unreasonable an d the period of around eleven months between the reference date and the Court of Appeals’ second judgment cannot be considered excessive.

Conclusion : no violation (unanimously).

Article 6 § 2 – The applicants’ arguments in this respect amount to a restatement of their arguments under Article 6 § 1 concerning the use made of their statements. Consequently, the complaint does not give rise to any separate issue.

Conclusion : no separate issue (u nanimously).

Article 41 – The Court cannot speculate as to the question whether the outcome of the trial would have been different had use not been made of the transcripts. Consequently, no causal connection between the violation and any pecuniary loss has been established. As to a prospective claim for non-pecuniary damages, the finding of a violation constitutes sufficient just satisfaction. As to costs and expenses, the Court considered that only those reasonable in quantum and actually and necessarily i ncurred in order to seek redress of the sole violation found are recoverable, all other heads of claim being disallowed. It otherwise reserved the matter.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Co urt.

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