SLINN v. THE UNITED KINGDOM



                      AS TO THE ADMISSIBILITY OF

                      Application No. 26664/95

                      by Colin SLINN

                      against United Kingdom

     The European Commission of Human Rights (First Chamber) sitting

in private on 26 June 1996, the following members being present:

           Mr.   C.L. ROZAKIS, President

           Mrs.  J. LIDDY

           MM.   A.S. GÖZÜBÜYÜK

                 A. WEITZEL

                 M.P. PELLONPÄÄ

                 B. MARXER

                 G.B. REFFI

                 B. CONFORTI

                 N. BRATZA

                 I. BÉKÉS

                 G. RESS

                 A. PERENIC

                 C. BÎRSAN

                 K. HERNDL

           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 the application introduced on 15 November 1994

by Colin SLINN against the United Kingdom and registered on

8 March 1995 under file No. 26664/95;

     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 applicant is a British national born in 1943.  He presently

resides in County Wexford, Ireland.  The facts as submitted by the

applicant may be summarised as follows.

A.   Particular circumstances of the case

     From 27 January 1986 to 3 July 1988 the applicant was a director

of Seagull Manufacturing Company Limited ("Seagull"), a computer

utility organisation which on 17 March 1983 was incorporated in England

as a private limited company.

     On 30 May 1989 the Secretary of State for Trade and Industry

instigated an inquiry under section 447 of the Companies Act 1985 into

Seagull, following which he presented a petition under section 440 of

that Act for the winding-up of Seagull on the grounds that it was

expedient in the public interest.  On 4 April 1990 a compulsory winding

-up order was made on the petition which was unopposed.

     On 17 July 1990 the official receiver applied ex parte to the

Registrar under section 133 of the Insolvency Act 1986 ("the Act") for

an order for the public examination of the applicant at the Royal

Courts of Justice in London.  The Registrar made the order and gave the

official receiver leave to serve the applicant at his address in

Alderney, Guernsey. At an inter partes hearing on 25 September 1990,

the applicant appealed against the order arguing that the English court

had no jurisdiction under section 133 of the Act to order him to attend

a public examination in England since he had been resident outside the

jurisdiction of the United Kingdom from 1979 onwards, first in the Isle

of Man, then from 1986 in Alderney, the Channel Islands. The Registrar

consequently set the order aside.

     The official receiver appealed against that decision and the

order was restored by the High Court.  The official receiver adduced

affidavit evidence to show that creditors' claims against Seagull

exceeded two million pounds, that the applicant had not cooperated with

the official receiver and that despite being required by the official

receiver to produce a statement of affairs for Seagull, no such

statement had been produced. In the circumstances, the official

receiver said he wanted the applicant examined in public where the

creditors and contributories could question him. The High Court

considered fully the legal arguments of both sides (the applicant was

represented by counsel) and concluded that the scope of Section 133 of

the Act did extend to residents outside the jurisdiction.

     The applicant appealed to the Court of Appeal which, having fully

considered the terms and effects of the relevant provisions, concluded

that section 133 must have been intended to cover company officers

outside the jurisdiction; Parliament could not have intended to allow

persons responsible for the state of a company's affairs to escape

liability simply by not being within the jurisdiction.  All three

judges of the Court of Appeal agreed with the finding in the High Court

that all officers described in section 133(1) (a)-(d) of the Act,

whether inside or outside the jurisdiction, were within the legislative

grasp and intendment of section 133, which on its proper construction

has no territorial limits. The Court emphasised that it was concerned

with the scope of the Act and was not concerned with whether the order

for public examination could be effectively enforced against a person

out of the jurisdiction.

     The Court of Appeal refused leave to petition the House of Lords

and on 23 May 1994 the House of Lords also refused leave to appeal.

B.   Relevant domestic law

     Section 133 of the Insolvency Act 1986 provides:

                 "Public examination of Officers

     (1)   Where a company is being wound up by the court, the

     official receiver or, in Scotland, the liquidator may at

     any time before the dissolution of the company apply to the

     court for the public examination of any person who-

     (a)   is or has been an officer of the company; or

     (b)   has acted as liquidator or administrator of the

           company or as receiver or manager or, in Scotland,

           receiver of its property; or

     (c)   not being a person falling within the paragraph (a) or

           (b), is or has been concerned, or has taken part, in

           the promotion, formation or management of the company.

     (2)   Unless the Court otherwise orders, the official

     receiver or, in Scotland, the liquidator shall make an

     application under subsection (1) if he is requested in

     accordance with the rules to do so by-

     (a)   one-half, in value, of the company's creditors; or

     (b)   three-quarters, in value, of the company's

           contributories.

     (3)   On an application under subsection (1), the court

     shall direct that public examination of the person to whom

     the application relates shall be held on a day appointed by

     the court; and that person shall attend on that day and be

     publicly examined as to the promotion, formation or

     management of the company or as to the conduct of its

     business and affairs, or his conduct or dealing in relation

     to the company.

     (4)   The following may take part in the public examination

     of a person under this section and may question that person

     concerning the matter mentioned in subsection (3), namely-

     (a)   the official receiver;

     (b)   the liquidator of the company;

     (c)   any person who has been appointed as a special manager

           of the company's property or business;

     (d)   any creditor of the company who has tendered proof or,

           in Scotland, submitted a claim in the winding up;

     (e)   any contributory of the company."

COMPLAINTS

     The applicant complains that answers given in the course of the

public examination (where he would be deprived of the right to silence)

could later be used in a criminal case against him, and that his rights

under Article 6 are therefore violated.

     The applicant further complains that the Court of Appeal was not

an impartial tribunal within the meaning of Article 6 since two of the

Lords Justices who heard his appeal had in 1988 and 1990 heard or tried

cases involving Seagull.  He claims that he had been involved in these

cases and that he had come into conflict with one of the judges.

     The applicant also complains that the official receiver should

have applied for his public examination in Alderney, where he was

resident, an Order in Council having extended the provisions of the

Insolvency Act 1986 to the Bailiwick of Guernsey (which includes

Alderney).  He claims that this was not done because in Alderney he has

a right to silence to which he is not entitled in the United Kingdom.

He further claims that the provisions of the Insolvency Act 1986 cannot

be extended outside the United Kingdom.

THE LAW

      The applicant complains that he has been summoned to appear at

a public examination at the Royal Courts of Justice in London. He

invokes Article 6 (Art. 6) of the Convention which provides in its

first paragraph:

     "1.   In the determination of his civil rights and obligations or

     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..."

     The applicant complains that the answers given by him in the

course of the public examination could be used against him in

subsequent criminal proceedings. Further, the Court of Appeal which

rejected his appeal against the order did not constitute an impartial

tribunal since two of the Lords Justices had previously heard cases

involving Seagull.

     The Commission notes however that the applicant has not been

charged with any criminal offence nor are the proceedings determinative

of any civil right or obligation.  In effect, the applicant is merely

being called as a witness in proceedings relating to the winding-up of

a company of which he was once a director.  Article 6 (Art. 6) is

therefore inapplicable and this part of his complaint must be rejected

as incompatible ratione materiae with the provisions of the Convention

within the meaning of Article 27 para. 2 (Art. 27-2).

     The applicant also complains that he should have been publicly

examined in Alderney where he had a right to silence and not in London,

where he had no such right.  He further complains that the English

courts did not have jurisdiction to require him to attend a hearing in

London.

     The Commission recalls that, in accordance with Article 19

(Art. 19) of the Convention, its only task is to ensure the observance

of the obligations undertaken by the parties to the Convention.  In

particular, it is not competent to deal with an application alleging

that errors of law or fact have been committed by domestic courts,

except where it considers that such errors might have involved a

possible violation of any of the rights and freedoms set out in the

Convention: (see eg. No. 458/59, X v. Belgium, Dec 29.3.60, yearbook 3

pp. 222, 236; No. 5258/71, X v. Sweden, Dec. 8.2.73, collection 43

p. 71; No.7987/77, X v. Austria, Dec. 13.12.79, D.R 18 pp. 31, 45).

     The Commission notes that the applicant's claim that the English

courts had no jurisdiction to order him to appear for examination in

public in London has been considered on appeal by the High Court and

the Court of Appeal. Both courts fully considered the legal arguments

submitted by the parties and concluded that the English courts did have

jurisdiction under section 133 of the Act to order the applicant to

attend examination in public in London in respect of his capacity as

director of an English company in compulsory liquidation.

     Insofar as the applicant claims that he had a right to be

examined in Alderney and not to be examined in London, the Commission

recalls that there is no right under the Convention either to be

examined in the jurisdiction where one resides or not to be ordered for

examination in a different jurisdiction. Therefore, even if the

domestic courts had erred in their finding as to the scope of section

133 of the Act, no right protected by the Convention could be said to

have been affected.

     The Commission accordingly finds this part of the complaint

incompatible ratione materiae with the provisions of the Convention

within the meaning of Article 27 para. 2 (Art. 27-2).

     For these reasons, the Commission, unanimously,

     DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber       President of the First Chamber

     (M.F. BUQUICCHIO)                        (C.L. ROZAKIS)

 

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