DISSENTING OPINION OF Mr. HENRY G. SCHERMERS

      There are three reasons why I do not agree with the majority of

the Commission that Article 6 para. 1 of the Convention has been

violated in the present case.

      First, a somewhat theoretical point concerning legal persons.

      Under our legal systems, separate legal personality has been

attributed to companies.  Their capital, their operations and their

management are distinguished from those of the shareholders.  As a

legal fiction, we create new persons, through the management of others.

When the applicant testified to the DTI he did so, not in his private

capacity, but as an officer or agent of Guinness PLC.  At first sight,

this argument may seem too theoretical to carry much weight.  One

should take into account, however, that the companies concerned were

separate legal persons with separate interests and that they could not

act nor testify in any other way than through their officers or agents.

      Second, the time when the incriminating remarks were made.

      The statements made by the applicant during the DTI inspectors'

investigation were made outside and prior to the criminal investigation

against him.  As Mr. Justice Henry ruled in the case, the accusatorial

system was born in reaction to the excesses of the Star Chamber, where

the defendants were first charged, and then had to submit to compulsory

interrogation on oath.  Evidence should be assembled before a person

is charged.  It would be contrary to a fair trial to try and find

evidence by submitting people to compulsory interrogation on oath in

cases where there may exist only a vague suspicion.  This does not

mean, however, that observations made by an accused in a different

context may never be used against him.  In this respect the present

case resembles tax and customs cases which may also be based on

documents which a person was obliged to deliver.

      I think that  would have agreed with the majority of the

Commission that Article 6 para. 1 of the Convention was violated, had

not Mr. Justice Henry excluded the evidence from the two post-charge

interviews (para. 41).

      Three, the purpose of the prohibitions of self incrimination.

      In my opinion, the main reason why a fair process should include

the right not to incriminate oneself is that one should not put a

person in the situation where he must choose between telling the truth

which incriminates himself and lying in order to protect himself.  The

human right of protecting oneself would be brought in conflict with the

human duty of telling the truth.  In the criminal proceedings of the

present case that situation did not arise.  All statements to the DTI

Inspectors had been made before the criminal proceedings started.  If

the applicant was put in a situation of conflict between truth and

self-protection, that conflict was in the proceedings before the DTI

Inspectors.  Only in those proceedings a conflict of conscience may

have arisen.  However, those proceedings are not included in the

present application; they were closed more than six months before the

case was submitted.

      The use of data provided for by someone who is subsequently

charged with a criminal offence is often inevitable.  Especially in

proceedings under tax law, persons are often obliged to hand over

financial accounts which may subsequently serve to incriminate them.

                              Appendix I

                      HISTORY OF THE PROCEEDINGS

Date                  Item

________________________________________________________________

20.07.88              Introduction of the application

11.12.91              Registration of the application

Examination of admissibility

31.08.92              Commission's decision to invite the parties to

                      submit observations on the admissibility and

                      merits

12.01.93              Government's observations

25.02.93              Applicant's reply

07.05.93              Commission's decision to invite the parties to

                      an oral hearing

29.09.93              Government's further written observations

19.11.93              Applicant's further written observations

07.12.93              Hearing on admissibility and merits

07.12.93              Commission's decision to declare the application

                      admissible

Examination of the merits

07.12.93              Commission's deliberations

14.02.94              Government's observations on the merits

09.04.94              Consideration of the state of proceedings

10.05.94              Commission's deliberations on the merits, final

                      votes and adoption of the Report