EUROPEAN COMMISSION OF HUMAN RIGHTS
Application No. 19187/91
Ernest Saunders
against
the United Kingdom
REPORT OF THE COMMISSION
(adopted on 10 May 1994)
TABLE OF CONTENTS
page
I. INTRODUCTION
(paras. 1-19) . . . . . . . . . . . . . . . . . . . . . . . . 1
A. The application
(paras. 2-4). . . . . . . . . . . . . . . . . . . . . . . 1
B. The proceedings
(paras. 5-14) . . . . . . . . . . . . . . . . . . . . . . 1
C. The present Report
(paras. 15-19). . . . . . . . . . . . . . . . . . . . . . 2
II. ESTABLISHMENT OF THE FACTS
(paras. 20-58). . . . . . . . . . . . . . . . . . . . . . . . 3
A. Particular circumstances of the case
(paras. 20-50). . . . . . . . . . . . . . . . . . . . . . 3
B. Relevant domestic law
(paras. 51-58). . . . . . . . . . . . . . . . . . . . . . 7
III. OPINION OF THE COMMISSION
(paras. 59-77). . . . . . . . . . . . . . . . . . . . . . . .10
A. Complaint declared admissible
(para. 59). . . . . . . . . . . . . . . . . . . . . . . .10
B. Point at issue
(para. 60). . . . . . . . . . . . . . . . . . . . . . . .10
C. Article 6 of the Convention
(paras. 61-76) ) . . . . . . . . . . . . . . . . . . . .10
CONCLUSION
(para. 77). . . . . . . . . . . . . . . . . . . . . . . . . .14
CONCURRING OPINION OF MR. LOUCAIDES . . . . . . . . . . . . .15
DISSENTING OPINION OF MR. SCHERMERS . . . . . . . . . . . . .16
APPENDIX I HISTORY OF THE PROCEEDINGS . . . . . . . . . . . .18
APPENDIX II DECISION ON ADMISSIBILITY. . . . . . . . . . . . .19
I. INTRODUCTION
1. The following is an outline of the case as submitted to the
European Commission of Human Rights, and of the procedure before the
Commission.
A. The application
2. The applicant is Ernest Saunders, a British citizen born in 1935
and resident in London. He is represented by Mr. Paul Williams, a
solicitor practising in London.
3. The application is directed against the United Kingdom. The
respondent Government are represented by Mr. Iain Christie as Agent,
from the Foreign and Commonwealth Office.
4. The case concerns the complaint of the applicant that the use at
his trial of statements made by him to the Department of Trade and
Industry (DTI) inspectors under their compulsory powers deprived him
of a fair hearing. It raises issues under Article 6 para. 1 of the
Convention.
B. The proceedings
5. The application was introduced on 20 July 1988 and registered on
11 December 1991.
6. On 31 August 1992, the Commission decided to communicate the
application to the respondent Government for their written observations
on the admissibility and merits of the application.
7. The Government submitted their written observations on
12 January 1993. The applicant submitted his written observations in
reply on 25 February 1993.
8. On 7 May 1993, the Commission decided to invite the parties to
an oral hearing on the admissibility and merits.
9. The Government submitted further written observations on
29 September 1993 and the applicant submitted supplementary
observations on 19 November 1993.
10. At the hearing which was held on 7 December 1993, the Government
were represented by Mrs. Audrey Glover as Agent, Mr. Michael Baker
Q.C., Counsel, Mr. Richard Horwell, Counsel, and Mrs. Tessa Dunstan,
Mr. Robert Burns, Mr. Gordon Dickinson and Mr. John Gardner as
Advisers. The applicant was represented by Mr. Jonathan Caplan Q.C.,
Counsel, Mr. Justin Cole, Counsel, Mr. Paul Williams, Solicitor,
Mr. George Devlin, the applicant's agent and Ms. Laura Devlin as
assistant and translator. The applicant was also present.
11. On 7 December 1993, the Commission declared admissible the
applicant's complaints relating to the use of the DTI statements at his
trial. The remainder of the application was declared inadmissible.
12. The parties were then invited to submit any additional
observations on the merits of the application.
13. On 14 February 1994, the Government submitted further
observations.
14. After declaring the case admissible, the Commission, acting in
accordance with Article 28 para. 1 (b) of the Convention, placed itself
at the disposal of the parties with a view to securing a friendly
settlement of the case. In the light of the parties' reactions, the
Commission now finds that there is no basis on which a friendly
settlement can be effected.
C. The present Report
15. The present Report has been drawn up by the Commission in
pursuance of Article 31 of the Convention and after deliberations and
votes, the following members being present:
MM. C.A. NØRGAARD, President
S. TRECHSEL
A. WEITZEL
G. JÖRUNDSSON
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
G.B. REFFI
N. BRATZA
I. BÉKÉS
J. MUCHA
D. SVÁBY
16. The text of the Report was adopted by the Commission on
10 May 1994 and is now transmitted to the Committee of Ministers in
accordance with Article 31 para. 2 of the Convention.
17. The purpose of the Report, pursuant to Article 31 para. 1 of the
Convention, is
1) to establish the facts, and
2) to state an opinion as to whether the facts found disclose
a breach by the State concerned of its obligations under
the Convention.
18. A schedule setting out the history of the proceedings before the
Commission is attached hereto as Appendix I and the Commission's
decision on the admissibility of the application as Appendix II.
19. The full text of the parties' submissions, together with the
documents lodged as exhibits, are held in the archives of the
Commission.
II. ESTABLISHMENT OF THE FACTS
A. Particular circumstances of the case
20. On 1 October 1981, the applicant was appointed Managing Director
of Guinness PLC (his title later being changed to Chief Executive
Officer).
21. On 2 December 1985, Argyll PLC, a large Scottish company,
announced a bid to take over Distillers PLC, which manufactured and
distributed alcoholic drinks. Distillers PLC sought help from Guinness
in resisting the bid. In January 1986, Guinness announced a counter-
bid. There was a series of further increased offers from Argyll and
Guinness. On 18 April 1986, the shareholders of Distillers accepted
the bid made by Guinness.
22. On 9 May 1986, the applicant was appointed Deputy Chairman of
Guinness. On 11 September 1986, the applicant was appointed Chairman.
23. On 28 November 1986, the Department of Trade and Industry (the
DTI) appointed Inspectors to enquire into the Guinness acquisition of
Distillers under sections 432 and 442 of the Companies Act 1985. The
enquiry, which commenced on 1 December 1986, involved investigation
into the allegations that Guinness had offered secret indemnities and
success fees to certain purchasers of Guinness stock. The alleged
effect of those purchases was artificially to inflate or maintain the
Guinness share price, with the intention of inducing Distillers
shareholders to assent to the Guinness bid.
24. 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.
25. On 12 January 1987, the DTI Inspectors notified the Secretary of
State of matters which they thought should be brought to his attention.
A note dated 13 January 1987 from the DTI Solicitor recorded the
existence of certain evidence in the hands of the Inspectors indicating
the possibility that criminal offences had been committed.
26. On 12 January 1987, the DTI contacted Mr. John Wood at the
Director of Public Prosecutions' office (DPP). It was decided that the
proper thing to do was to let the Inspectors carry on with their
enquiry and to pass the transcripts on to the Crown Prosecution Service
(CPS) which had come into being in September 1986.
27. On 14 January 1987, the applicant was dismissed from Guinness.
28. 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
Companies Act 1985. Thereafter the Inspectors passed on to the
Secretary of State transcripts of their hearings and other documentary
material which came into their possession.
29. On 30 January 1987, a meeting was held attended by the
Inspectors, the Solicitor and other officials of the DTI, Mr. John Wood
and a representative from the CPS.
30. 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.
31. The applicant was interviewed by the Inspectors on nine
occasions: on 10, 11, 20 and 26 February, 4-5 March, 6 May, and
11-12 June 1987. At these interviews the applicant was accompanied by
his legal representatives.
32. On or about a date between 1 and 5 May 1987, the police were
formally asked by the DPP's office to carry out an investigation. The
transcripts and documents obtained as a result of the Inspectors'
interviews were passed on to the police from about the start of May
1987.
33. On 6 May 1987, the applicant was arrested by the police. In his
evidence at the applicant's trial, the police officer in charge of the
investigation explained that he had learned that the applicant had dual
nationality, had or was about to sell his house in England and was
resident in Switzerland where he was then living. He therefore was
concerned that the applicant might abscond on learning that a criminal
investigation had started.
34. On 7 May 1987, the applicant was charged with three offences
concerning the destruction of documents.
35. On 13 October 1987, the applicant was charged with 37 offences.
A further two charges were added on 11 July 1988.
36. The applicant and his co-defendants were arraigned before the
Crown Court on 27 April 1989. Each defendant pleaded not guilty to the
counts on the indictment.
37. On 21 September 1989, two separate trials were ordered by the
trial judge in the Crown Court, Mr. Justice Henry, in view of the large
number of counts and the number of defendants (7).
38. From 6 to 16 November 1989, the court held a voir dire following
the application of one of the applicant's co-defendants, Mr. Parnes,
to rule the DTI transcripts inadmissible. Parnes 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.
39. In a ruling given on 21 November 1989, Mr. Justice Henry held
that the transcripts were admissible. He found that as a matter of
construction of the relevant statute Inspectors could ask witnesses
questions that tended to incriminate them, the witnesses were under
a duty to answer such questions and the answers were admissible in
criminal proceedings. He rejected Parnes' 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.
40. From 22 to 24 January 1990, the court held a voir dire following
the application of the applicant to rule inadmissible the DTI
transcripts 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 the applicant's
alleged ill-health at the time and on the fact that two interviews had
taken place after the applicant had been charged.
41. In his ruling of 29 January 1990, Mr. Justice Henry rejected the
defence argument as to the applicant's medical condition. He did
however exercise his discretion pursuant to section 78 to exclude the
evidence from the two post-charge interviews on the grounds that the
applicant's attendance could not be said to be voluntary, and it could
not be said to be fair to use material obtained by compulsory
interrogation after the commencement of the accusatorial process.
42. The jury for the applicant's trial was empanelled on
16 February 1990. These proceedings involved the applicant and three
co-defendants. The applicant faced 15 counts including, inter alia,
8 counts of false accounting contrary to section 17(1)b of the Theft
Act 1968, 2 counts of theft and 2 counts of conspiracy to contravene
section 13(1)(a)i of the Prevention of Fraud (Investments) Act 1958.
43. During the trial, the prosecution referred to the statements made
by the applicant in the course of interviews to the DTI Inspectors in
order to establish the state of the applicant's knowledge and to refute
evidence given by the applicant to the jury. In his summing-up to the
jury, the judge also compared and contrasted what the applicant had
said in court with the answers which he had given to the Inspectors.
44. On 22 August 1990, the applicant was convicted of 12 counts. On
28 August 1990, he received an overall prison sentence of five years.
45. In the second set of proceedings concerning the other co-
defendants, further challenge was made to the admissibility of the DTI
transcripts 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. 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 support of this application,
Mr. Seelig also sought by way of witness summons discovery of documents
and correspondence between the DTI, the Inspectors, the CPS and the
police, including the minutes of the meeting of 30 January 1987.
46. In a ruling given on 10 December 1990, Mr. Justice Henry refused
the application by way of witness summons to compel discovery of
documents alleged to reveal this abuse, finding 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 the depositions
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 DTI 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.
47. On appeal by Mr. Seelig, the Court of Appeal in a judgment dated
2 May 1991 upheld the trial judge's ruling as to the admissibility of
the DTI interviews.
48. The applicant applied for leave to appeal against conviction and
sentence. He argued, inter alia, that the trial judge had misdirected
the jury as to the meaning and effect of section 151 of the Companies
Act 1985, and that he had misdirected the jury as to the weight to be
given to the evidence given by R., the finance director of Guinness who
had been given immunity from prosecution.
49. The applicant was granted leave to appeal against conviction.
Following a hearing at which the applicant was represented, the Court
of Appeal gave its judgment on 16 May 1991. It held that while there
were some blemishes and infelicities in the judge's summing-up, it was
in the main a masterly exposition, which left the main issue of
dishonesty to the jury. It commented that the applicant's counsel had
expressed the possibility that he might wish to address the court as
to the admissibility of the DTI transcripts. It stated however 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.
It went on to reject the applicant's appeal on all but one count: it
found that the judge had erred in his direction on count 14 and quashed
that conviction. It reduced his sentence to two and a half years'
imprisonment.
50. On 24 July 1991, the House of Lords refused leave to appeal from
the Court of Appeal ruling in the Seelig case concerning the
admissibility of the DTI transcripts.
B. Relevant domestic law and practice
Appointment of inspectors
51. 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))
52. 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))
Function and powers of inspectors
53. The function of inspectors is an inquisitorial and not a judicial
function. It has been summarised, in a case which has been
incorporated as an appendix to the DTI Investigation Handbook, 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." (In re Pergamom Press Ltd
[1971] Ch 388 per Sachs LJ at p. 401).
54. 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."
55. 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."
56. 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.
Provisions of the Police and Criminal Evidence Act 1984
57. 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..."
58. 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."
III. OPINION OF THE COMMISSION
A. Complaint declared admissible
59. The Commission has declared admissible the applicant's complaint
that he has been deprived of a fair hearing as a result of the use at
his trial of incriminating statements obtained from him by the DTI
Inspectors in exercise of their statutory powers of compulsion.
B. Point at issue
60. The issue to be determined is whether there has been a violation
of Article 6 para. 1 (Art. 6-1) of the Convention.
C. Article 6 para. 1 (Art. 6-1) of the Convention
61. Article 6 para. 1 (Art. 6-1) of the Convention provides as
relevant:
"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..."
62. The applicant contends that the use of the DTI interviews, which
were obtained under compulsory powers, as evidence against him in his
trial deprived him of a fair hearing under this provision. He submits
in addition that the prosecuting authorities deliberately delayed the
commencement of the police investigation in order that statements
incriminating him could be gathered for use in the subsequent criminal
proceedings.
63. The applicant argues that Article 6 (Art. 6) includes the
requirement that a defendant is entitled to exercise the right not to
incriminate himself. Since the statements which he made under
compulsion to the DTI Inspectors were used as a significant part of the
evidence against him at his trial, he was deprived of the privilege
against self-incrimination and the fairness of the proceedings was
seriously affected. Further, there is no justification in removing the
protection against self-incrimination from persons in the position of
the applicant, while it remains for all other categories of offenders,
including those interviewed by the Serious Fraud Office in the exercise
of its statutory powers.
64. The Government submit that the DTI Inspectors' investigation was
separate from the criminal prosecution, their function being
inquisitorial and to establish the facts, which may result in others
taking action. The person being questioned is protected from oppression
and abuse, in particular, the applicant was accompanied by his legal
advisers during the questioning; the Inspectors gave a general
indication in advance of the matters in issue; after each session the
applicant was provided with a transcript and given the opportunity to
correct or augment his evidence (which he availed himself of
frequently); and account was taken of the applicant's health problems
in fixing dates. In addition the courts have power to exclude from use
at trial any statements obtained by oppression or in circumstances
which render them unreliable or which would have an adverse effect on
the fairness of the proceedings (eg. sections 76 and 78 of PACE - see
Relevant domestic law and practice paras. 57-58). In the Government's
submission, the applicant was not obliged to give evidence at his trial
and it is not correct for the applicant to allege that he was under
pressure to go into the witness box to explain what he had said to the
Inspectors. In his counsel's opening to the jury, it was stated that
the reason for the applicant giving evidence was to show that he could
"take the medicine which he saw (his counsel) hand out to some of the
prosecution witnesses."
65. The Government submit in light of the above that the use of the
evidence taken by the Inspectors did not render the trial unfair. They
argue that the "right to silence" or the privilege against self-
incrimination is not absolute and that any departure from it is
justified in the present case having regard, inter alia, to the special
status of persons conducting the affairs of public companies who enjoy
a fiduciary position towards the public to which they have a
responsibility of accounting for their stewardship.
66. As regards the applicant's allegations of deliberate delay on the
part of the prosecuting authorities, the Government submit that there
is no appearance or trace of such impropriety. They refer to the
findings of Mr. Justice Henry with regard to the lack of any abuse of
process and state that the delay in launching the police investigation
pursued the legitimate purpose of allowing a clear picture to emerge
in an extremely complicated affair in order that the prosecution might
obtain a better overall understanding of it before deciding what lines
of enquiry to pursue.
67. The Commission recalls that as a general rule questions
concerning evidence are for the national courts to determine. Article 6
(Art. 6) does not lay down any rules on the admissibility of evidence
as such, which is therefore primarily a matter for regulation under
domestic law (see eg. Eur. Court H.R., Schenk judgment of 12 July 1988,
Series A no. 140 p. 29, para. 46). The Commission must however
determine whether the proceedings considered as a whole, including the
way in which the prosecution obtained and used evidence, were fair as
required by Article 6 para. 1 (Art. 6-1) of the Convention. In this
context, the Commission recalls that the Convention is intended to
guarantee rights which are not theoretical or illusory but rights that
are practical and effective; this is of particular relevance to the
rights of the defence given the prominent place held in a democratic
society by the right to a fair trial (see eg. Eur. Court H.R., Artico
judgment of 13 May 1980, Series A no. 37 p. 16, para. 33).
68. In the case of Funke (Eur. Court H.R., Funke judgment of
25 February 1993, Series A no. 256A p. 22, para. 44), the Court found
a violation of Article 6 para. 1 (Art. 6-1) in that the applicant had
been prosecuted and convicted for refusing to disclose documents on the
application by the customs authorities:
"The Court notes that the customs secured Mr. Funke's conviction
in order to obtain certain documents which they believed must
exist, although they were not certain of the fact. Being unable
or unwilling to procure them by some other means, they attempted
to compel the applicant himself to provide the evidence of
offences which he had allegedly committed. The special features
of customs law (see paragraphs 30-31) cannot justify such an
infringement of the right of anyone `charged with a criminal
offence', within the meaning of this expression in Article 6
(Art. 6), to remain silent and not to contribute to incriminating
himself."
69. The Court appears in the above passage to find that the right to
silence and privilege against self-incrimination are an inherent part
of the protection given to an accused under Article 6 para. 1
(Art. 6-1). The Government argue that the Funke case is not strictly
relevant to the present case since Funke concerned punishment of an
applicant for refusing to incriminate himself whereas the present
applicant co-operated with the Inspectors without incurring any
penalty. However the Commission does not consider that the Court's
statement can be restricted as narrowly, since on its face it refers
to "anyone `charged with a criminal offence'". It also seems to the
Commission that an applicant who incriminates himself under threat of
punishment (see paras. 55-56) and provides evidence for use against
himself at his trial may be as seriously prejudiced, perhaps more so,
as the applicant who incurs the punishment for refusing to incriminate
himself.
70. The Commission observes that the right to silence is not
expressly guaranteed by Article 6 (Art. 6) of the Convention and
accepts that the right may not be unqualified. The Government seek to
confine the ambit of any "right to silence" under Article 6 para. 1
(Art. 6-1) by analogy with the principles elaborated by the Court in
respect of the right of access to court which is implicit in Article 6
(Art. 6): namely, that any such right cannot be absolute but will be
subject to those implied limitations which comply with the
requirements of not impairing the very essence of a fair hearing, serve
a legitimate aim and are proportionate to the aim sought to be achieved
(see mutatis mutandis Eur. Court H.R., Golder judgment of
17 May 1975, Series A no. 18 p. 19, para. 38 and Ashingdane judgment
of 28 May 1985, Series A no. 93, p. 24, para. 57). These requirements
are, they submit, satisfied on the facts of the present case in view
of the procedural safeguards against abuse (see para. 64 above) and the
special considerations applying to company directors in positions of
fiduciary responsibility towards the public.
71. The Commission does not consider however that the above criteria
can be transferred automatically from case-law on the implied right of
access to court - which generally is concerned with problems arising
in the sphere of "civil rights and obligations" - to the general
concept of "fairness" which is expressly contained in Article 6 para. 1
(Art. 6-1). It cannot be compatible with the spirit of the Convention
that varying degrees of fairness apply to different categories of
accused in criminal trials. The right of silence, to the extent that
it may be contained in the guarantees of Article 6 (Art. 6), must apply
as equally to alleged company fraudsters as to those accused of other
types of fraud, rape, murder or terrorist offences. Further, there can
be no legitimate aim in depriving someone of the guarantees necessary
in securing a fair trial.
72. In the Commission's opinion, the privilege against self-
incrimination is an important element in safeguarding an accused from
oppression and coercion during criminal proceedings. The very basis of
a fair trial presupposes that the accused is afforded the opportunity
of defending himself against the charges brought against him. The
position of the defence is undermined if the accused is under
compulsion, or has been compelled, to incriminate himself. The
privilege against self-incrimination is also closely allied to the
principle of presumption of innocence protected in Article 6 para. 2
(Art. 6-2) of the Convention in that it reflects the expectation that
the State bear the general burden of establishing the guilt of an
accused, in which process the accused is entitled not to be required
to furnish any involuntary assistance by way of confession.
73. Whether a particular applicant has been subject to compulsion to
incriminate himself and whether the use made of the incriminating
material has rendered criminal proceedings unfair will depend on an
assessment of the circumstances of each case as a whole.
74. In the present case, the Commission notes that the applicant was
required by law to answer the questions put to him by the DTI
Inspectors in the course of their investigation, whether or not they
tended to incriminate him. A refusal to answer could have been
punished, on reference to the court, by a penalty of up to two years'
imprisonment or by a fine. On application by the applicant to the
trial judge to exclude the statements as evidence at his trial, 2 of
the 9 transcripts of the interviews were ruled inadmissible on the
basis that they had been obtained after the applicant had been charged.
The judge found that these statements could not be said to be voluntary
and that it could not be fair to use material obtained by compulsory
interrogation after the commencement of the accusatorial process. The
remaining statements were admissible in evidence against the applicant
at his trial whether or not he chose to give evidence himself. It was
accepted by the Government that the applicant's evidence to the
Inspectors constituted a significant element of the prosecution case
against the applicant. During the trial, the prosecution used the
other transcripts of the DTI interviews to establish the state of the
applicant's knowledge and to point out the inconsistencies in the
applicant's oral evidence. The judge also made reference in summing-up
to the jury to the contradictions between the applicant's evidence to
the Inspectors and to the court.
75. The Commission finds that the applicant was in effect compelled
to incriminate himself and that the incriminating material furnished
a not insignificant part of the evidence against him at his trial.
While the Government contest that the reason for the applicant deciding
to give evidence was the necessity for him to counter the evidence of
the DTI interviews, the Commission notes that on the Government's own
submissions it is not denied that, though the real value of the
transcripts was in cross-examination (pointing out inconsistencies in
the applicant's explanations), the evidence contained admissions in
itself. In these circumstances, the Commission considers this must have
exerted additional pressure on the applicant to take the witness stand
rather than exercise his right to remain silent at the trial and leave
it to the prosecution to prove its case.
76. In light of the above, the Commission finds that the use at the
applicant's trial of incriminating evidence obtained from him under
compulsory powers was oppressive and substantially impaired his ability
to defend himself against the criminal charges facing him. He was
therefore deprived of a fair hearing within the meaning of Article 6
para. 1 (Art. 6-1) of the Convention. Given this conclusion the
Commission finds it unnecessary to decide whether in addition the
prosecuting authorities' delay in instituting the police investigation
was improperly motivated by the desire to gather incriminating evidence
from the DTI investigation for use at the applicant's trial.
CONCLUSION
77. The Commission concludes, by 14 votes to 1, that there has been
a violation of Article 6 para. 1 (Art. 6-1) of the Convention.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
CONCURRING OPINION OF MR. LOUCAIDES
I agree with the conclusion of the majority that in this case
there has been a violation of Article 6 para. 1 of the Convention for
the reasons set out in para. 76 of the Report, but I would like to add
the following:
In my view this case concerns more directly the right to remain
silent and not to be compelled to incriminate oneself (nemo tenetur
prodere or nemo tenetur scipsum accusare) which, I believe, is a
corollary of the principle of presumption of innocence protected in the
second paragraph of Article 6 of the Convention. This principle has
developed though the centuries in order to protect individuals from
oppressive inquisitorial methods and unfounded prosecutions, and it was
rightly interpreted to mean that:
"It is the business of the Crown (the prosecution) to prove [an
accused person] guilty and he need not do anything but stand by
and see what case has been made out against him ... He is
entitled to rely on the defence that the evidence as it stands
is inconclusive, and that the Crown is bound to make it
conclusive without any help from him" (Ex parte Reynolds, 20 Ch.
D. 294).
The presumption of innocence would in fact be a meaningless
protection if an accused person was compelled to give evidence against
himself. Therefore the privilege against self-incrimination must be
recognised as a sine qua non for the effectiveness of the protection
in question. In my view the privilege in question and the presumption
of innocence are the two sides of the same coin.
Although the historical reasons which led to the adoption of the
right against self-incrimination, namely inquisitorial practices, are
substantially nonexistent today, the need to exclude their reactivation
still survives. As rightly observed by the U.S.A. Supreme Court in
relation to the corresponding right safeguarded by the U.S.
Constitution -
"Having had much experience with a tendency in human nature to
abuse power the Founders [of the Constitution] sought to close
the doors against like future abuses by law-enforcing agencies"
(U.S. v. Bryan 1950 339 U.S. 323).
The same court has aptly explained the rationality of the
principle in question as being the "protection of the innocent, though
a shelter to the guilty, and a safeguard against heedless, unfounded,
or tyrannical prosecutions "(Twining v. New Jersey (1908) 211 U.S.,
78).
The rule against self-incrimination being part and parcel of the
presumption of innocence which is protected in Article 6 para. 2 of the
Convention in absolute terms, there can be no justification for its
breach.
Therefore, inasmuch as the applicant was compelled to give
incriminating evidence which was later on used against him in his
trial, I find that there has been in this case a direct violation of
Article 6 para,. 2 of the Convention. Such violation is an autonomous
violation independent of the question of whether there has also been
a breach, in this case, of the principle of "fair hearing" under
para. 1 of Article 6.
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
Full & Egal Universal Law Academy