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 Commission of Human Rights (First Chamber) sitting
in private on 9 April 1997, the following members being present:
Mrs. J. LIDDY, President
MM. M.P. PELLONPÄÄ
E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
L. LOUCAIDES
B. MARXER
B. CONFORTI
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
Mrs. M. HION
Mr. R. NICOLINI
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 Application No. 29522/95, introduced on
30 November 1995 by I.J.L. against the United Kingdom and registered
on 12 December 1995; Application No. 30056/96 introduced on 18 December
1995 by G.M.R. against the United Kingdom and registered on 5 February
1996 and Application No. 30574/96 introduced on 8 December 1995 by
A.K.P. against the United Kingdom and registered on 25 March 1996;
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 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,
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, London, and by Mr. J.P. Gardner.
The third applicant is a former stockbroker and resides in
London. He is represented by Peters & Peters, London, and by
Mr. J.P. Gardner.
The facts, as submitted by the applicants, are closely related
to the facts of the Saunders case (Eur. Court HR, Saunders v. the
United Kingdom judgment of 17 December 1996, to be published in Reports
1996) and may be summarised as follows.
A. Particular circumstances of the case
a. 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 take-over 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.
The substantial increase in the quoted Guinness share price
during the bid was 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. 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 were unlawful (1) because
they were not disclosed to the market under the City Code on Take-overs
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.
Supporters who had purchased shares under the unlawful share
support operation were indemnified and rewarded. In addition, some of
those who had helped find supporters were rewarded by the payment of
large fees. These too came from Guinness' funds. 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.
Allegations and rumours of misconduct during the course of the
bid led the Secretary of State for Trade and Industry to appoint
Inspectors some months after the events pursuant to sections 432
and 442 of the 1985 Act (see infra, Relevant domestic law under a.).
The Inspectors were empowered to investigate the affairs of Guinness.
b. The Inspectors' investigation
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 12 January 1987, the Inspectors informed the Department of
Trade and Industry ("DTI") that there was concrete evidence of criminal
offences having been committed. On the same date 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.
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 437(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. John 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 cooperate
although they reserved the right to conduct their investigations as
they thought right.
On 5 February 1987 Mr. John 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 first applicant was interviewed by the Inspectors on five
occasions: on 29 January, 12 February, 11 March, 16 March and 10 April
1987.
The second applicant was interviewed by the Inspectors on two
occasions: on 14 January and 2 September 1987.
The third applicant was interviewed by the Inspectors on 22 and
27 January 1987. He was accompanied by his solicitor throughout these
interviews. He was further interviewed by the Inspectors on 26 May
1987.
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.
c. 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.
In the beginning of 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 this
company's 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.
From 6-16 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, 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 be 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.
d. 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. 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.
The transcripts of the interviews were read to the jury by the
prosecution over a three-day period during the trial (days 45-47). 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 £3,000,000 with a total of five years'
imprisonment in default. He was also ordered to contribute £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 £5,000,000 with a
4 years' consecutive prison sentence in default. He was also ordered
to contribute £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 21/2 years. He was also ordered to contribute £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.
e. 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. He concluded rather 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 24 July 1991 leave to appeal
was refused by the House of Lords.
f. The applicants' appeal
All 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 21/2 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 £300,000 each. A similar order was made by the Court
of Appeal in favour of the first applicant.
g. Subsequent reference to the Court of Appeal by the Home Secretary
On 22 December 1994 the Home Secretary referred the whole case
of the applicants and Mr. Saunders to the Court of Appeal pursuant to
section 17(1) of the Criminal Appeal Act 1968. He did so on the basis
of requests by the applicants, who submitted that the prosecution had
failed to disclose certain materials at their trial. That material
showed that share support operations had been undertaken in relation
to a number of other takeovers and had been considered to be 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) which related to share
support operations.
By judgment of 27 November 1995, the Court of Appeal rejected the
first applicant's appeal on all but one count. It quashed the
applicant's conviction of one of the conspiracy counts. The appeals by
the second and third applicants and Mr. Saunders were dismissed.
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.
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 (see infra, Relevant
domestic law under b. and c.) 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 criticize 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] régime 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."
B. Relevant domestic law and practice
a. 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))
b. 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.
c. 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 paras. 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
co-operation between the DPP and the DTI which postponed the opening
of a police investigation and thus postponed 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 the 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 be helpful to the prosecution itself.
The applicant considers that in these circumstances there has been a
violation of the principle of equality of arms.
The applicants further complain under Article 6 para. 1 of the
Convention that the criminal proceedings against them have exceeded 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 para. 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 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 that the Inspectors' investigation, the
criminal proceedings, their convictions, the resulting publicity and
the effects of the consequential blight on their reputation, including
the annulment of the first applicant's knighthood, constitute an unjust
interference with their rights under Article 8 para. 1 of the
Convention.
The applicants complain that, given the unfairness and thus
unlawfulness of the criminal proceedings against them, the judgment and
their convictions affirmed by the Court of Appeal on 27 November 1995
constituted an impermissible interference with their right to respect
for their possessions protected by Article 1 of Protocol No. 1.
The applicants finally complain under Article 13 of the
Convention that they have no remedy as regards their complaints under
Article 6, Article 8 and Article 1 of Protocol No. 1.
THE LAW
1. The applicants complain under Article 6 paras. 1 and 3 (d)
(Art. 6-1, 6-3-d) of the Convention that they did not receive a fair
trial in that, 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 be 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 para. 1
(Art. 6-1) of the Convention that the criminal proceedings against them
exceeded a reasonable time.
The applicants finally complain under Article 6 paras. 1 and 2
(Art. 6-1, 6-2)) of the Convention that they did not receive a fair
hearing in 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. They further contend that the
authorities, in operating this way, acted contrary to the presumption
of innocence.
The applicants also complain under Article 13 (Art. 13) of the
Convention that they have no remedy as regards their complaints under
Article 6 (Art. 6).
Article 6 (Art. 6) of the Convention, insofar as relevant, reads:
"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;"
Article 13 (Art. 13) of the Convention 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."
a) As regards the applicants' complaint under Article 6 paras. 1 and
3 (d) (Art. 6-1, 6-3-d) of the Convention that they did not receive a
fair trial in that, 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 be helpful to the prosecution itself, the
Commission notes that this evidence was disclosed to the defence when
the Home Secretary referred the applicants' whole case to the Court of
Appeal on 22 December 1994.
Following this referral, the Court of Appeal examined the
applicants' cases in their entirety including the material which had
not been previously disclosed by the prosecution.
It does not appear that the applicants, on the basis of this
newly disclosed material, sought the attendance and examination of any
witnesses before the Court of Appeal. It further has not been alleged
that the applicants were unable to do so at this stage of the
proceedings, or that the principle of equality of arms was violated in
any other way in the proceedings at issue.
In these circumstances, the Commission considers that this defect
of the original trial was remedied by the subsequent procedure before
the Court of Appeal (cf. Eur. Court HR, Edwards v. the United Kingdom
judgment of 16 December 1992, Series A no. 247-B, p. 35, paras. 36-39).
Insofar as the applicants rely on Article 13 (Art. 13) of the
Convention in conjunction with the above complaint under Article 6
paras. 1 and 3 (d) (Art. 6-1, 6-3-d) of the Convention, the Commission
recalls that Article 13 (Art. 13) does not require a remedy under
domestic law in respect of any alleged violation of the Convention. It
only applies if the individual can be said to have an "arguable claim"
of a violation of the Convention (cf. Eur. Court HR, Boyle and Rice v.
the United Kingdom judgment of 27 April 1988, Series A no. 131, p. 23,
para. 52).
The Commission finds that the applicants cannot be said, in light
of its findings above, to have an "arguable claim" of a violation of
Article 6 paras. 1 and 3 (d) (Art. 6-1, 6-3-d) of the Convention
insofar as this last provision concerns the principle of equality of
arms.
It follows that this part of the application must be rejected as
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
b) In the light of, inter alia, the judgment of the European Court
of Human Rights in the case of Saunders against the United Kingdom
(judgment of 17 December 1996, to be published in Reports 1996), the
Commission considers that the remaining complaints under Article 6
paras. 1 and 2 (Art. 6-1, 6-2) of the Convention and the related
complaint under Article 13 (Art. 13) of the Convention must be brought
to the notice of the respondent Government in accordance with Rule 48
para. 2 (b) of its Rules of Procedure and the Government be invited to
submit their written observations on the admissibility and merits of
these complaints.
2. The applicants complain that the Inspectors' investigation, the
criminal proceedings, their convictions, the resulting publicity and
the effects of the consequential blight on their reputation, including
the annulment of the first applicant's knighthood, constitute an unjust
interference with their rights under Article 8 para. 1 (Art. 8-1) of
the Convention.
The Commission considers that, insofar as the Inspectors'
investigation, the criminal proceedings against the applicants and
their subsequent convictions could be regarded as an interference with
the applicants' rights under Article 8 para. 1 (Art. 8-1) of the
Convention, that this interference would in any event be justified
under Article 8 para. 2 (Art. 8-2) of the Convention on the following
grounds.
The Commission recalls that the words "in accordance with the
law" refers essentially to domestic law. In determining whether an
interference was "in accordance with the law", it is primarily for the
national authorities to apply and interpret domestic law, but the
Convention institutions have a limited jurisdiction to control the
manner in which this is done (cf. No. 17441/90, Dec. 4.9.92, D.R. 73,
p. 201 and No. 21207/93, Dec. 30.11.94, D.R. 79, p. 31). For an
interference to be "in accordance with the law", the law must be
sufficiently accessible and precise. It must define the scope and
manner of exercise of the authority's functions with sufficient clarity
to protect the individual against arbitrariness (cf. No. 12327/86,
Dec. 9.5.89, D.R. 67, p. 123).
The Commission finds no indication that the rules concerning the
investigation and proceedings at issue fell short of these requirements
and cannot find that the decisions to investigate, prosecute and
convict the applicants, as such, can be qualified as arbitrary. The
Commission further finds that the decisions to investigate, prosecute
and convict the applicants cannot be regarded as disproportionate to
the legitimate aim pursued, i.e. the prevention of crime. Consequently,
the Commission is of the opinion that these decisions can reasonably
be regarded as necessary in a democratic society for the prevention of
crime within the meaning of Article 8 para. 2 (Art. 8-2) of the
Convention.
Insofar as the applicants complain under Article 8 (Art. 8) of
the Convention of the publicity surrounding the criminal proceedings
against them, the Commission recalls that, even though Article 8
(Art. 8) of the Convention imposes on the High Contracting Parties
principally negative obligations, it may also impose certain positive
obligations. However, States enjoy a margin of appreciation in this
matter. In establishing the positive obligations which may be imposed
on a State by Article 8 (Art. 8) of the Convention, Article 10
(Art. 10) of the Convention must be taken into account when an
applicant complains about the failure of the State to restrict a third
party's freedom of expression (cf. No. 10871/84, Dec. 10.7.86, D.R. 48,
p. 254).
The Commission notes that the press coverage of the applicants'
case concerned a matter of public interest. Recalling the necessity in
a democratic society of supervisory controls over large commercial
activities in order to ensure good management practices and the
transparency of honest dealings (Eur. Court HR, Fayed v. the United
Kingdom judgment of 21 September 1994, Series A no. 294-B, p. 51,
para. 69), the Commission cannot find that the respondent Government,
in this respect, fell short of its obligations under Article 8
(Art. 8) of the Convention.
Insofar as the applicants complain under Article 8 (Art. 8) of
the Convention of any consequential effects of their convictions, such
as the annulment of the first applicant's knighthood, the Commission
is of the opinion that, insofar as such effects could be regarded as
an interference with their rights under Article 8 para. 1
(Art. 8-1) of the Convention, these effects can be regarded as
justified under paragraph 2 of this provision.
It follows that this part of the application must be rejected as
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
3. The applicants complain that, given the unfairness and thus
unlawfulness of the criminal proceedings against them, the judgment and
their convictions affirmed by the Court of Appeal on 27 November 1995
constituted an impermissible interference with their right to respect
for their possessions protected by Article 1 of Protocol No. 1 (P1-1).
Article 1 of Protocol No. 1 (P1-1) reads as follows:
"Every natural or legal person is entitled to the peaceful
enjoyment of his possessions. No one shall be deprived of
his possessions except in the public interest and subject
to the conditions provided for by law and by the general
principles of international law.
The preceding provisions shall not, however, in any way
impair the right of a State to enforce such laws as it
deems necessary to control the use of property in
accordance with the general interest or to secure the
payment of taxes or other contributions or penalties."
The Commission notes that, following criminal proceedings, the
applicants were convicted and sentenced to the payment of substantial
fines and contributions towards the prosecution's costs.
The Commission notes that Article 1 of Protocol No. 1 (P1-1)
explicitly contains the possibility for High Contracting States to
impose penalties. The Commission recalls that this includes the
possibility to impose fines for criminal offences (cf. No. 6753/74,
Dec. 19.12.74, D.R. 2, p. 118)
The Commission recalls that it does not act as a court of appeal
from domestic courts. It is not competent to examine alleged errors of
fact or law committed by national courts, except where it considers
that such errors might have involved a possible violation of the rights
and freedoms set forth in the Convention (cf. No. 25062/94,
Dec. 18.10.95, D.R. 83, p. 77).
It is true that under Article 6 (Art. 6) of the Convention, which
guarantees primarily procedural rights, the Convention organs are
competent to examine the question whether or not criminal proceedings
are in conformity with the requirements of this provision. Neither
Article 6 (Art. 6) nor any other provision of the Convention, however,
contains a right to have the correctness of convictions and sentences
imposed reviewed by the Convention organs.
It follows that this complaint must be rejected as manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
4. The applicants finally complain under Article 13 (Art. 13) of the
Convention that they have no remedy as regards their complaints under
Article 8 (Art. 8) and Article 1 of Protocol No. 1 (P1-1).
The Commission finds that the applicants cannot be said, in light
of its above findings under these provisions, to have an "arguable
claim" of a violation of Article 8 (Art. 8) of the Convention or of
Article 1 of Protocol No. 1 (P1-1).
It follows that this part of this complaint must also be rejected
as manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
For these reasons, the Commission,
DECIDES TO JOIN APPLICATIONS Nos. 29522/95, 30056/96 and
30574/96;
DECIDES TO ADJOURN the examination of the applicants' complaints
under Article 6 paras. 1 and 2 of the Convention on the length
of the proceedings and on the use in evidence of material
obtained by the DTI Inspectors, both in itself and in conjunction
with Article 13 of the Convention; and,
unanimously,
DECLARES INADMISSIBLE the remainder of the application.
M.F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy