In the case of Saunders v. the United Kingdom (1),

        The European Court of Human Rights, sitting, in pursuance of
Rule 51 of Rules of Court A (2), as a Grand Chamber composed of the
following judges:

        Mr  R. Bernhardt, President,
        Mr  Thór Vilhjálmsson,
        Mr  F. Gölcüklü,
        Mr  L.-E. Pettiti,
        Mr  B. Walsh,
        Mr  A. Spielmann,
        Mr  J. De Meyer,
        Mr  N. Valticos,
        Mr  S.K. Martens,
        Mrs E. Palm,
        Mr  R. Pekkanen,
        Mr  A.N. Loizou,
        Mr  J.M. Morenilla,
        Sir John Freeland,
        Mr  L. Wildhaber,
        Mr  G. Mifsud Bonnici,
        Mr  J. Makarczyk,
        Mr  D. Gotchev,
        Mr  B. Repik,
        Mr  P. Kuris,

and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy
Registrar,

        Having deliberated in private on 23 February, 22 April and
29 November 1996,

        Delivers the following judgment, which was adopted on the
last-mentioned date:
_______________
Notes by the Registrar

1.  The case is numbered 43/1994/490/572.  The first number is the
case's position on the list of cases referred to the Court in the
relevant year (second number).  The last two numbers indicate the
case's position on the list of cases referred to the Court since its
creation and on the list of the corresponding originating applications
to the Commission.

2.  Rules A apply to all cases referred to the Court before the entry
into force of Protocol No. 9 (P9) (1 October 1994) and thereafter only
to cases concerning States not bound by that Protocol (P9).  They
correspond to the Rules that came into force on 1 January 1983, as
amended several times subsequently.
_______________

PROCEDURE

1.      The case was referred to the Court by the European Commission
of Human Rights ("the Commission") and by the Government of the
United Kingdom of Great Britain and Northern Ireland ("the Government")
on 9 and 13 September 1994 respectively, within the three-month period
laid down by Article 32 para. 1 and Article 47 (art. 32-1, art. 47) of
the Convention for the Protection of Human Rights and Fundamental
Freedoms ("the Convention").  It originated in an application
(no. 19187/91) against the United Kingdom lodged with the Commission
under Article 25 (art. 25) by Mr Ernest Saunders, a British citizen,
on 20 July 1988.

        The Commission's request referred to Articles 44 and 48
(art. 44, art. 48) and to the declaration whereby the United Kingdom
recognised the compulsory jurisdiction of the Court (Article 46)
(art. 46).  The object of the request and of the Government's
application was to obtain a decision as to whether the facts of the
case disclosed a breach by the respondent State of its obligations
under Article 6 para. 1 of the Convention (art. 6-1).

2.      In response to the enquiry made in accordance with
Rule 33 para. 3 (d) of Rules of Court A, the applicant stated that he
wished to take part in the proceedings and designated the lawyers who
would represent him (Rule 30).

3.      The Chamber to be constituted included ex officio
Sir John Freeland, the elected judge of British nationality (Article 43
of the Convention) (art. 43), and Mr R. Ryssdal, the President of the
Court (Rule 21 para. 3 (b)).  On 24 September 1994, in the presence of
the Registrar, the President drew by lot the names of the other
seven members, namely Mr R. Bernhardt, Mr Thór Vilhjálmsson,
Mr F. Gölcüklü, Mr J.M. Morenilla, Mr J. Makarczyk, Mr B. Repik and
Mr P. Kuris (Article 43 in fine of the Convention and Rule 21 para. 4)
(art. 43).   Subsequently Mr N. Valticos, substitute judge, replaced
Mr Ryssdal, who was unable to take part in the further consideration
of the case (Rules 22 para. 1 and 24 para. 1).  Mr Bernhardt succeeded
Mr Ryssdal as President of the Chamber.

4.      As President of the Chamber (Rule 21 para. 5), Mr Bernhardt,
acting through the Registrar, consulted the Agent of the Government,
the applicant's lawyers and the Delegate of the Commission on the
organisation of the proceedings (Rules 37 para. 1 and 38).  Pursuant
to the order made in consequence, the Registrar received the
applicant's memorial on 16 February 1995 and the Government's memorial
on 27 February 1995.

5.      On 22 March 1995 the President of the Chamber granted
permission to Liberty, pursuant to Rule 37 para. 2, to submit written
comments on specified aspects of the case.  These were received on
31 July 1995.  The Government submitted a reply on 3 October.

6.      On 28 April 1995 the Chamber, after considering written
submissions from the applicant and the Government, granted a request
by the Government to adjourn the hearing pending a decision of the
Court of Appeal to which the applicant's case had been referred by the
Secretary of State (see paragraph 39 below).  Following the decision
of the Court of Appeal on 27 November 1995 the applicant submitted a
further memorial on 3 January 1996.  The Government's memorial in reply
was received on 23 January.

7.      On 25 January 1996 the President refused a request under
Rule 37 para. 2 made on behalf of three of the applicant's co-accused
to file written comments on the case.

8.      In accordance with the President's decision, the hearing took
place in public in the Human Rights Building, Strasbourg, on
19 February 1996.  The Court had held a preparatory meeting beforehand.

        There appeared before the Court:

(a) for the Government

    Mr M. Eaton, Deputy Legal Adviser, Foreign and
       Commonwealth Office,                                    Agent,
    Mr S. Kentridge QC,
    Ms E. Gloster QC,
    Mr J. Eadie, Barrister-at-Law,                           Counsel,
    Ms T. Dunstan, Department of Trade and Industry,
    Mr J. Gardner, Department of Trade and Industry,
    Ms R. Quick, Department of Trade and Industry,
    Mr G. Dickinson, Serious Fraud Office,
    Mr L. Leigh, London School of Economics,                Advisers;

(b) for the Commission

    Mr N. Bratza,                                           Delegate;

(c) for the applicant

    Mr M. Beloff QC,
    Mr M. Hunt, Barrister-at-Law,                            Counsel,
    Mr P. Williams, Solicitor,
    Mr G. Devlin,
    Ms L. Devlin,                                           Advisers.

        The Court heard addresses by Mr Bratza, Mr Beloff and
Mr Kentridge and also replies to its questions.

9.      Following deliberations on 23 February 1996 the Chamber decided
to relinquish jurisdiction forthwith in favour of a Grand Chamber
(Rule 51 para. 1).

10.     By virtue of Rule 51 para. 2 (a) and (b), the President and the
Vice-President of the Court (Mr Ryssdal and Mr Bernhardt) as well as
the other members and the substitute judges (namely, Mr B. Walsh,
Mr J. De Meyer, Mr S.K. Martens and Mr D. Gotchev) of the original
Chamber are members of the Grand Chamber.

        Since Mr Ryssdal had been unable to take part (see paragraph 3
above), the names of the additional eight judges were drawn by lot by
the Vice-President, in the presence of a member of the registry, on
1 March 1996, namely, Mr L.-E. Pettiti, Mr R. Macdonald,
Mr A. Spielmann, Mrs E. Palm, Mr R. Pekkanen, Mr A.N. Loizou,
Mr L. Wildhaber and Mr G. Mifsud Bonnici (Rule 51 para. 2 (c)).
Subsequently, Mr Macdonald was unable to take part in the further
consideration of the case.

11.     On 6 March 1996 the Government requested permission to file
further brief observations in writing, which request was granted by the
President of the Grand Chamber on 19 March 1996.  These observations
were submitted on 4 April and the Delegate's and the applicant's
comments in reply were received on 18 April.

12.     Having taken note of the opinions of the Agent of the
Government, the Delegate of the Commission and the applicant, the
Grand Chamber decided on 22 April 1996 that it was not necessary to
hold a further hearing following the relinquishment of jurisdiction by
the Chamber (Rules 26 and 38, taken together with Rule 51 para. 6).

13.     On 8 August 1996 the President admitted to the file an article
submitted by the Government.

AS TO THE FACTS

I.      Particular circumstances of the case

    A.  Factual background leading to the appointment of inspectors

14.     The applicant had become a director and chief executive of
Guinness PLC ("Guinness") in 1981.

15.     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's offer
to 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.

16.     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's own moneys 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.

17.     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.

18.     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 paragraphs 45 and 46 below).  The inspectors
were empowered to investigate the affairs of Guinness.

    B.  The inspectors' investigation

19.     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.

20.     On 12 January 1987, the inspectors informed the
Department of Trade and Industry ("the 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 ("the DPP").  It was decided that the proper thing to do was to
permit the inspectors to carry on with their inquiry and to pass the
transcripts on to the Crown Prosecution Service ("the CPS") which had
come into being in September 1986.

21.     On 14 January 1987 the applicant was dismissed from Guinness.

22.     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.

23.     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 - including the applicant - 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.

24.     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.

25.     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.  He was accompanied by his legal representatives
throughout these interviews.

    C.  The criminal proceedings

26.     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.

27.     The applicant was subsequently charged with numerous offences
relating to the illegal share-support operation and, together with his
co-defendants, was 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.

28.     From 6 to 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 one of the applicant's co-defendants, Mr Parnes, to
rule the DTI transcripts inadmissible.  Mr 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.

        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 Mr Parnes'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.

29.     From 22 to 24 January 1990 the court held a further voir dire
following the application of the applicant to rule inadmissible the
DTI transcripts concerning the eighth and ninth interviews 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 the two interviews in question had
taken place after the applicant had been charged.

        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 above-mentioned interviews which had taken place
after the applicant had been charged on the grounds that his 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.

        1.    The applicant's trial

30.     The applicant was tried together with three co-defendants.  The
trial 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.  The
applicant faced fifteen counts including, inter alia, eight counts of
false accounting contrary to section 17 (1) b of the Theft Act 1968 and
two counts of theft and several counts of conspiracy.

        In the course of his trial the applicant, who was the only
accused to give evidence (days 63-82) - after the reading of the
transcripts (see paragraph 31 below) - testified that he knew nothing
about the giving of indemnities or the paying of success fees and that
he had not been consulted on such matters.  He asserted that he had
been guilty of no wrongdoing.  The Crown relied heavily on the evidence
of Mr Roux (Guinness's finance director) who had been granted immunity
from prosecution.  It also referred to the statements made by the
applicant in the course of interviews to the DTI inspectors.

31.     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 applicant's
knowledge and to refute evidence given by the applicant to the jury.

        For example, counsel for the prosecution used passages from the
interviews to demonstrate that Mr Saunders had been aware, inter alia,
of the payment to Mr W., who had been allegedly involved in the
share-support operation, of more than £5 million, before the inspectors
had shown him an invoice for the payment of the money to Mr W.  In his
answers to the inspectors Mr Saunders had stated that he had agreed on
the payment to Mr W. of £5 million as an appropriate success fee.  When
the inspectors showed him the invoice for the payment of this money to
a company (MAC) used by Mr W. to receive fees for work done, he replied
that he had not seen the invoice before but had deduced that it related
to his agreement to pay Mr W. £5 million.

        In his opening speech to the jury, counsel for the prosecution
stated as follows:

        "Mr Saunders also told [DTI] inspectors why the [£5 million]
        had been paid.  He said that Mr [W.] had performed invaluable
        service during the bid for Distillers and that Mr [W.] had
        persuaded him that £5 million was an appropriate fee as a
        reward.  Mr Saunders accepted that there was no documentation
        to support his decision to pay Mr [W.] £5 million.  Mr Saunders
        admitted to the [inspectors] that he knew that MAC was a
        company used by Mr [W.] and his associates to receive money."

        During the trial Mr Saunders testified that he did not know
that the money had been paid to Mr W. prior to being shown the invoice
by the inspectors.  In his cross-examination of the applicant, counsel
for the prosecution referred to the above answers in the transcripts
to contradict Mr Saunders's testimony.  In his closing speech to the
jury he stated:

        "But Mr Saunders's ... evidence to the inspectors make it clear
        that he knew perfectly well ... that Mr [W.] had been paid.
        You will remember those passages in his ... interviews where
        he knew all about this payment before he was shown the
        invoice."

32.     Reference was also made to the interview transcripts by counsel
for the co-accused [Mr R.] in an attempt to demonstrate that
Mr Saunders was not telling the truth.  In his answers to the
inspectors Mr Saunders had repeatedly stated that he did not recall any
conversations with Mr R. concerning the purchase of shares in Guinness
or about indemnities against loss in the event of such purchase.
However, a letter written by Mr R. to another person stating that such
conversations had taken place and generally implicating Mr Saunders in
the share-support operation had been previously published in the press.

        During cross-examination of Mr Saunders, counsel for Mr R.
suggested that Mr Saunders's answers to the inspectors on this point
were not believable, that he had "lost his nerve" before them and that
this explained his replies that he could not recollect the
conversations with Mr R. taking place.  He repeatedly asked why
Mr Saunders did not take the opportunity to tell the inspectors that
Mr R.'s accusations in the published letter were a "pack of lies"
instead of replying as he did.

33.     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.

34.     On 22 August 1990 the applicant was convicted of twelve counts
in respect of conspiracy, false accounting and theft.  He received an
overall prison sentence of five years.

        2.    Ruling on "abuse of process" claims

35.     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.

36.     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.

37.     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.

        3.    The applicant's appeal

38.     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 weight to be allowed to the evidence
given by Mr Roux, the finance director of Guinness who had been
afforded immunity from prosecution.

        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 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 one count and quashed that
conviction.  It reduced his sentence to two and a half years'
imprisonment.

    D.  Subsequent reference to the Court of Appeal by the
        Home Secretary

39.     On 22 December 1994 the Home Secretary referred the applicant's
case and that of his co-defendants to the Court of Appeal pursuant to
section 17 (1) of the Criminal Appeal Act 1968.  He did so on the basis
of applications by the applicant's co-defendants - but not the
applicant himself - who submitted that the prosecution had failed to
disclose certain documents at their trial.

40.     At the appeal the applicant argued, inter alia, that the use
at the trial of answers given to the DTI inspectors automatically
rendered the criminal proceedings unfair.

        The court rejected this argument, pointing 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".

41.     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 ..."

42.     In relation to the argument that the difference between the
Companies Act and the Criminal Justice Act regimes (see paragraphs 48
and 54 below) was anomalous the court stated:

        "... 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 criticise 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."

43.     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
        businessmen 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."

44.     Finally, 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 applicant.  It 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 applicant.

II.     Relevant domestic law and practice

    A.  Appointment of inspectors

45.     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))

46.     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

47.     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."

48.     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."

49.     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
              subsection 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 inquire 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 court."

50.     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

51.     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 ..."

52.     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."

53.     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".

54.     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)).

PROCEEDINGS BEFORE THE COMMISSION

55.     The applicant lodged his application (no. 19187/91) with the
Commission on 20 July 1988.  He complained that the use at his trial
of statements made by him to the DTI inspectors under their compulsory
powers deprived him of a fair hearing in violation of Article 6
para. 1 of the Convention (art. 6-1).

56.     On 7 December 1993 the Commission declared the applicant's
complaint admissible.  In its report of 10 May 1994 it expressed the
opinion that there had been a violation of Article 6 para. 1 of the
Convention (art. 6-1) (fourteen votes to one).

        The full text of the Commission's opinion and of the
two separate opinions contained in the report is reproduced as an annex
to this judgment (1).
_______________
Note by the Registrar

1.  For practical reasons this annex will appear only with the printed
version of the judgment (in Reports of Judgments and
Decisions 1996-VI), but a copy of the Commission's report is obtainable
from the registry.
_______________

FINAL SUBMISSIONS TO THE COURT

57.     The applicant submitted that the use of the transcripts at the
trial was a breach of Article 6 para. 1 (art. 6-1) and that, to the
extent that the delay in starting the police investigation was
motivated by a desire to obtain those transcripts, the manner of
obtaining the evidence was also in violation of this provision
(art. 6-1).

58.     The Government contended that the mere fact of compulsion could
not and did not render the proceedings unfair.  Further, that if it was
concluded that any of Mr Saunders's answers could properly be described
as self-incriminating, it would still be necessary to assess whether
the extremely limited use in fact made of those answers rendered the
criminal proceedings unfair.  In their submission it did not.

AS TO THE LAW

I.      ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 OF THE CONVENTION
        (art. 6-1)

59.     The applicant contended that he was denied a fair trial in
breach of Article 6 para. 1 of the Convention (art. 6-1) which, in so
far as relevant, states:

        "In the determination of ... any criminal charge against him,
        everyone is entitled to a fair ... hearing ... by an
        independent and impartial tribunal ..."

        The Commission found that there had been such a violation,
although this was contested by the Government.

    A.  The right not to incriminate oneself

        1.    The arguments of those appearing before the Court

              (a)  The applicant

60.     The applicant complained of the fact that statements made by
him under compulsion to the inspectors appointed by the
Department of Trade and Industry (DTI) (see paragraph 18 above) during
their investigation were admitted as evidence against him at his
subsequent criminal trial (see paragraphs 30-33 above).

        He maintained that implicit in the right to a fair trial
guaranteed by Article 6 para. 1 (art. 6-1), as the Court had recognised
in its judgments in Funke v. France (25 February 1993, Series A
no. 256-A, p. 22, para. 44) and John Murray v. the United Kingdom
(8 February 1996, Reports of Judgments and Decisions 1996-I, p. 49,
para. 45), was the right of an individual not to be compelled to
contribute incriminating evidence to be used in a prosecution against
him.  This principle was closely linked to the presumption of innocence
which was expressly guaranteed by Article 6 para. 2 of the Convention
(art. 6-2) and had been recognised by the Court of Justice of the
European Communities (Orkem v. Commission, Case 374/87 [1989]
European Court Reports 3283) and by the Constitutional Court of
South Africa (Ferreira v. Levin and Others, judgment of
6 December 1995) amongst others.  It should apply equally to all
defendants regardless of the nature of the allegations against them or
their level of education and intelligence.  It followed that the use
made by the prosecution of the transcripts of interviews with the
inspectors in subsequent criminal proceedings was contrary to
Article 6 (art. 6).

61.     Furthermore, the applicant argued that this use of the
transcripts was particularly unfair in his case since, in the words of
the Court of Appeal, they "formed a significant part of the prosecution
case".  Three days were spent reading extracts from his interviews with
the inspectors to the jury before Mr Saunders decided that he ought to
give evidence to explain and expand upon this material.  As a result,
he was subjected to intensive cross-examination concerning alleged
inconsistencies between his oral testimony at trial and his responses
to the inspectors' questions, to which the trial judge drew attention
in his summing-up to the jury.  The prosecution's task was thus
facilitated when it was able to contrast its own evidence with
Mr Saunders's more specific denials in his interviews.

              (b)  The Government

62.     The Government submitted that only statements which are
self-incriminating can fall within the privilege against
self-incrimination.  However, exculpatory answers or answers which, if
true, are consistent with or would serve to confirm the defence of an
accused cannot be properly characterised as self-incriminating.  In
their submission, neither the applicant nor the Commission had
identified at any stage a single answer given by the applicant to the
DTI inspectors which was self-incriminating.  There cannot be derived
from the privilege against self-incrimination a further right not to
be confronted with evidence that requires the accused, in order
successfully to rebut it, to give evidence himself.  That, in effect,
was what the applicant was claiming when he alleged that the admission
of the transcript "compelled" him to give evidence.

        The Government accepted that a defendant in a criminal trial
cannot be compelled by the prosecution or by the court to appear as a
witness at his own trial or to answer questions put to him in the dock,
and that an infringement of this principle would be likely to result
in a defendant not having a fair hearing.  However, the privilege
against self-incrimination was not absolute or immutable.  Other
jurisdictions (Norway, Canada, Australia, New Zealand and the
United States of America) permit the compulsory taking of statements
during investigation into corporate and financial frauds and their
subsequent use in a criminal trial in order to confront the accused's
and witnesses' oral testimony.  Nor does it follow from an acceptance
of the privilege that the prosecution is never to be permitted to use
in evidence self-incriminating statements, documents or other evidence
obtained as a result of the exercise of compulsory powers.  Examples
of such permitted use include the prosecution's right to obtain
documents pursuant to search warrants or samples of breath, blood or
urine.

63.     In the Government's submission it would be wrong to draw from
the Court's Funke judgment (referred to at paragraph 60 above) a broad
statement of principle concerning the "right to silence", since the
nature of that right was not defined in the judgment.  There can be no
absolute rule implicit in Article 6 (art. 6) that any use of statements
obtained under compulsion automatically rendered criminal proceedings
unfair.  In this respect it was necessary to have regard to all the
facts of the case including the many procedural safeguards inherent in
the system.  For example, at the stage of the inspectors' inquiry,
injustice was prevented by the facts that the inspectors were
independent and subject to judicial supervision and that the person
questioned was entitled to be legally represented before them and
provided with a transcript of his responses which he could correct or
expand.  Moreover, during the course of any subsequent criminal trial,
a defendant who had provided answers to the inspectors under compulsion
was protected by the judge's powers to exclude such evidence;
admissions which might be unreliable or might have been obtained by
oppressive means had to be excluded and there was a discretion to
exclude other evidence if its admission would have an adverse effect
on the fairness of the proceedings (see paragraphs 51-52 above).

64.     The Government further emphasised that, whilst the interests
of the individual should not be overlooked, there was also a
public interest in the honest conduct of companies and in the effective
prosecution of those involved in complex corporate fraud.  This latter
interest required both that those under suspicion should be compelled
to respond to the questions of inspectors and that the
prosecuting authorities should be able to rely in any subsequent
criminal trial on the responses elicited.  In this respect a
distinction could properly be drawn between corporate fraud and other
types of crime, since devices such as complex corporate structures,
nominee companies, complicated financial transactions and false
accounting records could be used to conceal fraudulent misappropriation
of corporate funds or personal responsibility for such misconduct.
Frequently the documentary evidence relating to such transactions would
be insufficient for a prosecution or incomprehensible without the
explanations of the individuals concerned.  Furthermore, it had to be
remembered that the kind of person questioned by the inspectors was
likely to be a sophisticated businessman with access to expert legal
advice, who had moreover chosen to take advantage of the benefits
afforded by limited liability and separate corporate personality.

              (c)  The Commission

65.     The Commission considered that the privilege against
self-incrimination formed an important element in safeguarding
individuals from oppression and coercion, was linked to the principle
of the presumption of innocence and should apply equally to all types
of accused, including those alleged to have committed complex corporate
frauds.  In the instant case, the incriminating material, which the
applicant was compelled to provide, furnished a not insignificant part
of the evidence against him at the trial, since it contained admissions
which must have exerted additional pressure on him to take the
witness stand.  The use of this evidence was therefore oppressive and
substantially impaired Mr Saunders's ability to defend himself against
the criminal charges he faced, thereby depriving him of a fair trial.

        At the hearing before the Court, the Delegate stressed that
even steadfast denials of guilt in answer to incriminating questions
can be highly incriminating and very damaging to a defendant.  This was
so in the present case as the answers were used against him both in the
opening and closing speeches and in cross-examination to establish that
the answers given to the inspectors could not be believed and that the
applicant was dishonest.

              (d)  Amicus curiae

66.     Liberty, with reference to various international human rights
treaties and the law existing in a number of Contracting Parties,
requested the Court to find that Article 6 (art. 6) prevents
self-incriminating evidence from being obtained from an individual
under threat of judicial sanction and from being admissible in
criminal proceedings.

        2.    The Court's assessment

67.     The Court first observes that the applicant's complaint is
confined to the use of the statements obtained by the DTI inspectors
during the criminal proceedings against him.  While an
administrative investigation is capable of involving the determination
of a "criminal charge" in the light of the Court's case-law concerning
the autonomous meaning of this concept, it has not been suggested in
the pleadings before the Court that Article 6 para. 1 (art. 6-1) was
applicable to the proceedings conducted by the inspectors or that these
proceedings themselves involved the determination of a criminal charge
within the meaning of that provision (art. 6-1) (see, inter alia, the
Deweer v. Belgium judgment of 27 February 1980, Series A no. 35,
pp. 21-24, paras. 42-47).  In this respect the Court recalls its
judgment in Fayed v. the United Kingdom where it held that the
functions performed by the inspectors under section 432 (2) of the
Companies Act 1985 were essentially investigative in nature and that
they did not adjudicate either in form or in substance.  Their purpose
was to ascertain and record facts which might subsequently be used as
the basis for action by other competent authorities - prosecuting,
regulatory, disciplinary or even legislative (judgment of
21 September 1994, Series A no. 294-B, p. 47, para. 61).  As stated in
that case, a requirement that such a preparatory investigation should
be subject to the guarantees of a judicial procedure as set forth in
Article 6 para. 1 (art. 6-1) would in practice unduly hamper the
effective regulation in the public interest of complex financial and
commercial activities (ibid., p. 48, para. 62).

        Accordingly the Court's sole concern in the present case is
with the use made of the relevant statements at the applicant's
criminal trial.

68.     The Court recalls that, although not specifically mentioned in
Article 6 of the Convention (art. 6), the right to silence and the
right not to incriminate oneself are generally recognised
international standards which lie at the heart of the notion of a
fair procedure under Article 6 (art. 6).  Their rationale lies,
inter alia, in the protection of the accused against improper
compulsion by the authorities thereby contributing to the avoidance of
miscarriages of justice and to the fulfilment of the aims of Article 6
(art. 6) (see the above-mentioned John Murray judgment, p. 49,
para. 45, and the above-mentioned Funke judgment, p. 22, para. 44).
The right not to incriminate oneself, in particular, presupposes that
the prosecution in a criminal case seek to prove their case against the
accused without resort to evidence obtained through methods of coercion
or oppression in defiance of the will of the accused.  In this sense
the right is closely linked to the presumption of innocence contained
in Article 6 para. 2 of the Convention (art. 6-2).

69.     The right not to incriminate oneself is primarily concerned,
however, with respecting the will of an accused person to remain
silent.  As commonly understood in the legal systems of the
Contracting Parties to the Convention and elsewhere, it does not extend
to the use in criminal proceedings of material which may be obtained
from the accused through the use of compulsory powers but which has an
existence independent of the will of the suspect such as, inter alia,
documents acquired pursuant to a warrant, breath, blood and
urine samples and bodily tissue for the purpose of DNA testing.

        In the present case the Court is only called upon to decide
whether the use made by the prosecution of the statements obtained from
the applicant by the inspectors amounted to an unjustifiable
infringement of the right.  This question must be examined by the Court
in the light of all the circumstances of the case.  In particular, it
must be determined whether the applicant has been subject to compulsion
to give evidence and whether the use made of the resulting testimony
at his trial offended the basic principles of a fair procedure inherent
in Article 6 para. 1 (art. 6-1) of which the right not to incriminate
oneself is a constituent element.

70.     It has not been disputed by the Government that the applicant
was subject to legal compulsion to give evidence to the inspectors.
He was obliged under sections 434 and 436 of the Companies Act 1985
(see paragraphs 48-49 above) to answer the questions put to him by the
inspectors in the course of nine lengthy interviews of which seven were
admissible as evidence at his trial.  A refusal by the applicant to
answer the questions put to him could have led to a finding of contempt
of court and the imposition of a fine or committal to prison for up to
two years (see paragraph 50 above) and it was no defence to such
refusal that the questions were of an incriminating nature
(see paragraph 28 above).

        However, the Government have emphasised, before the Court, that
nothing said by the applicant in the course of the interviews was
self-incriminating and that he had merely given exculpatory answers or
answers which, if true, would serve to confirm his defence.  In their
submission only statements which are self-incriminating could fall
within the privilege against self-incrimination.

71.     The Court does not accept the Government's premise on this
point since some of the applicant's answers were in fact of an
incriminating nature in the sense that they contained admissions to
knowledge of information which tended to incriminate him
(see paragraph 31 above).  In any event, bearing in mind the concept
of fairness in Article 6 (art. 6), the right not to incriminate oneself
cannot reasonably be confined to statements of admission of wrongdoing
or to remarks which are directly incriminating.  Testimony obtained
under compulsion which appears on its face to be of a non-incriminating
nature - such as exculpatory remarks or mere information on questions
of fact - may later be deployed in criminal proceedings in support of
the prosecution case, for example to contradict or cast doubt upon
other statements of the accused or evidence given by him during the
trial or to otherwise undermine his credibility.  Where the credibility
of an accused must be assessed by a jury the use of such testimony may
be especially harmful.  It follows that what is of the essence in this
context is the use to which evidence obtained under compulsion is put
in the course of the criminal trial.

72.     In this regard, the Court observes that part of the transcript
of answers given by the applicant was read to the jury by counsel for
the prosecution over a three-day period despite objections by the
applicant.  The fact that such extensive use was made of the interviews
strongly suggests that the prosecution must have believed that the
reading of the transcripts assisted their case in establishing the
applicant's dishonesty.  This interpretation of the intended impact of
the material is supported by the remarks made by the trial judge in the
course of the voir dire concerning the eighth and ninth interviews to
the effect that each of the applicant's statements was capable of being
a "confession" for the purposes of section 82 (1) of the
Police and Criminal Evidence Act 1984 (see paragraph 53 above).
Similarly, the Court of Appeal considered that the interviews formed
"a significant part" of the prosecution's case against the applicant
(see paragraph 40 above).  Moreover, there were clearly instances where
the statements were used by the prosecution to incriminating effect in
order to establish the applicant's knowledge of payments to persons
involved in the share-support operation and to call into question his
honesty (see paragraph 31 above).  They were also used by counsel for
the applicant's co-accused to cast doubt on the applicant's version of
events (see paragraph 32 above).

        In sum, the evidence available to the Court supports the claim
that the transcripts of the applicant's answers, whether directly
self-incriminating or not, were used in the course of the proceedings
in a manner which sought to incriminate the applicant.

73.     Both the applicant and the Commission maintained that the
admissions contained in the interviews must have exerted additional
pressure on the applicant to give testimony during the trial rather
than to exercise his right to remain silent.  However, it was the
Government's view that the applicant chose to give evidence because of
the damaging effect of the testimony of the chief witness for the
prosecution, Mr Roux.

        Although it cannot be excluded that one of the reasons which
affected this decision was the extensive use made by the prosecution
of the interviews, the Court finds it unnecessary to speculate on the
reasons why the applicant chose to give evidence at his trial.

74.     Nor does the Court find it necessary, having regard to the
above assessment as to the use of the interviews during the trial, to
decide whether the right not to incriminate oneself is absolute or
whether infringements of it may be justified in particular
circumstances.

        It does not accept the Government's argument that the
complexity of corporate fraud and the vital public interest in the
investigation of such fraud and the punishment of those responsible
could justify such a marked departure as that which occurred in the
present case from one of the basic principles of a fair procedure.
Like the Commission, it considers that the general requirements of
fairness contained in Article 6 (art. 6), including the right not to
incriminate oneself, apply to criminal proceedings in respect of all
types of criminal offences without distinction from the most simple to
the most complex.  The public interest cannot be invoked to justify the
use of answers compulsorily obtained in a non-judicial investigation
to incriminate the accused during the trial proceedings.  It is
noteworthy in this respect that under the relevant legislation
statements obtained under compulsory powers by the Serious Fraud Office
cannot, as a general rule, be adduced in evidence at the subsequent
trial of the person concerned.  Moreover the fact that statements were
made by the applicant prior to his being charged does not prevent their
later use in criminal proceedings from constituting an infringement of
the right.

75.     It follows from the above analysis and from the fact that
section 434 (5) of the Companies Act 1985 authorises, as noted by both
the trial judge and the Court of Appeal, the subsequent use in
criminal proceedings of statements obtained by the inspectors that the
various procedural safeguards to which reference has been made by the
respondent Government (see paragraph 63 above) cannot provide a defence
in the present case since they did not operate to prevent the use of
the statements in the subsequent criminal proceedings.

76.     Accordingly, there has been an infringement in the present case
of the right not to incriminate oneself.

    B.  Alleged misuse of powers by the prosecuting authorities

77.     The applicant also complained that the prosecuting authorities
had deliberately delayed the institution of the police investigation
to enable the inspectors to gather evidence under their special powers.
He referred to the meeting on 30 January 1987 between the inspectors
and representatives of the Crown Prosecution Service (see paragraph 23
above), which preceded the formal initiation of the
police investigation by some three months (see paragraph 26 above).
In addition, documents disclosed for the purposes of the most recent
appeal (see paragraphs 39-44 above) showed that, in the words of the
Court of Appeal, "all concerned were conscious that the inspectors had
greater powers than the police when conducting their interviews and it
was clearly hoped that the inspectors would elicit answers ... which
could be used in evidence at trial".

        He reasoned that the fact that the Court of Appeal had found
that there had been no abuse of process should not be decisive, since
the domestic court could not apply the Convention and had been bound
by English law to conclude that the use made at trial of the
transcripts of the interviews with the inspectors had not been unfair.

78.     The Government emphasised that the applicant had already argued
this issue before the Court of Appeal without success (see paragraph 43
above) and that in raising it again in Strasbourg he was attempting to
use the Court as a fourth instance, contrary to the established
jurisprudence of the Court.

79.     The Commission found it unnecessary to consider this head of
complaint in view of its finding that the applicant had been denied a
fair trial by reason of the use made of the transcripts during his
trial.

80.     In the light of the above finding of an infringement of the
right not to incriminate oneself, the Court considers it unnecessary
to examine the applicant's allegations on this point.  It notes,
however, the findings of the Court of Appeal that the inspectors had
conducted their inquiries independently without briefing or prompting
by the prosecuting authorities and that there had been no improper or
unfair collusion between them (see paragraph 43 above).

    C.  Conclusion

81.     In conclusion the applicant was deprived of a fair hearing in
violation of Article 6 para. 1 of the Convention (art. 6-1).

II.     APPLICATION OF ARTICLE 50 OF THE CONVENTION (art. 50)

82.     The applicant sought just satisfaction under Article 50 of the
Convention (art. 50), which reads as follows:

        "If the Court finds that a decision or a measure taken by a
        legal authority or any other authority of a High Contracting
        Party is completely or partially in conflict with the
        obligations arising from the ... Convention, and if the
        internal law of the said Party allows only partial reparation
        to be made for the consequences of this decision or measure,
        the decision of the Court shall, if necessary, afford just
        satisfaction to the injured party."

    A.  Damage

        1.    Pecuniary damage

83.     The applicant submitted that the prosecution case against him
would have been in serious difficulties but for the evidence introduced
at his trial, in violation of Article 6 (art. 6).  He thus claimed
pecuniary loss amounting to £3,668,181.37.  This claim was made up of
sums in respect of loss of earnings up to May 1995, travelling and
subsistence expenses, fees paid to solicitors (Payne Hicks Beach)
relating to the interviews before the inspectors and to solicitors
(Landau and Landau) in respect of, inter alia, the
criminal proceedings.

        At the hearing before the Court, however, the applicant
accepted that "true compensation" would be a finding in his favour by
the Court and the resulting vindication of his good name.

84.     The Government submitted that the applicant's claim for
pecuniary loss was excessive.  In particular, they pointed out that
Mr Saunders had not criticised the investigation by the inspectors
itself, but had nonetheless sought reimbursement for his legal costs
in connection with it.  With regard to his claim for loss of earnings,
they submitted that he was dismissed by Guinness following the
company's own investigation into the conduct of the take-over.
Moreover, he had been in receipt of a pension from Guinness of
£74,000 per annum since his dismissal, in addition to which, since
May 1993, he had earned approximately £125,000 net per annum as a
business consultant.

85.     The Delegate of the Commission emphasised that in finding a
breach of Article 6 para. 1 (art. 6-1) the Commission could not be
taken to have made any suggestion as to the likely outcome of
Mr Saunders's trial had the transcripts not been admitted in evidence.

86.     The Court observes that the finding of a breach in the
present case concerned the criminal proceedings against the applicant
and not the proceedings before the inspectors about which no complaint
was made.  Moreover, it cannot speculate as to the question whether the
outcome of the trial would have been any different had use not been
made of the transcripts by the prosecution (see, mutatis mutandis, the
John Murray judgment cited above at paragraph 68, p. 52, para. 56) and,
like the Commission, underlines that the finding of a breach of the
Convention is not to be taken to carry any implication as regards that
question.

        It therefore considers that no causal connection has been
established between the losses claimed by the applicant and the Court's
finding of a violation.

        2.    Non-pecuniary damage

87.     The applicant sought non-pecuniary damages of £1 million to
compensate him for the denial of his right to a fair trial and the
resulting anxiety, anguish and imprisonment.

88.     The Government submitted that no award should be made under
this head.

89.     The Court considers that, in the circumstances of the case, the
finding of a violation constitutes sufficient just satisfaction in
respect of any non-pecuniary damage sustained.

    B.  Costs and expenses

90.     The applicant claimed a total of £336,460.75 by way of costs
and expenses in connection with the Strasbourg proceedings.  This was
composed of (1) £82,284.50 in respect of counsel's fees; (2) £42,241.25
in respect of solicitors' fees and (3) £211,935 concerning the fees of
the applicant's advisers, Mr and Mrs Devlin.

91.     The Government considered that the amounts claimed under this
head were excessive.  In particular they submitted that no award should
be made in respect of the fees of Mr and Mrs Devlin since the applicant
could have effectively presented his case in Strasbourg with the
assistance only from experienced solicitors and leading and
junior counsel.

92.     The Delegate of the Commission had no comments to make on the
amounts claimed.

93.     The Court is not satisfied that the amounts claimed by the
applicant were necessarily incurred or reasonable as to quantum.
Deciding on an equitable basis, it awards £75,000 under this head.

    C.  Default interest

94.     According to the information available to the Court, the
statutory rate of interest applicable in the United Kingdom at the date
of adoption of the present judgment is 8% per annum.

FOR THESE REASONS, THE COURT

1.      Holds by sixteen votes to four that there has been a violation
        of Article 6 para. 1 of the Convention (art. 6-1);

2.      Holds unanimously that the finding of a violation constitutes
        sufficient just satisfaction in respect of any non-pecuniary
        damage sustained;

3.      Holds unanimously

        (a)   that the respondent State is to pay the applicant, within
        three months, £75,000 (seventy-five thousand pounds sterling)
        in respect of costs and expenses;

        (b)   that simple interest at an annual rate of 8% shall be
        payable from the expiry of the above-mentioned three months
        until settlement;

4.      Dismisses unanimously the remainder of the claim for just
        satisfaction.

        Done in English and in French, and delivered at a public
hearing in the Human Rights Building, Strasbourg, on 17 December 1996.

Signed: Rudolf BERNHARDT
        President

Signed: Herbert PETZOLD
        Registrar

        In accordance with Article 51 para. 2 of the Convention
(art. 51-2) and Rule 53 para. 2 of Rules of Court A, the following
separate opinions are annexed to this judgment:

        (a)   concurring opinion of Mr Walsh;
        (b)   concurring opinion of Mr De Meyer;
        (c)   concurring opinion of Mr Morenilla;
        (d)   concurring opinion of Mr Repik;
        (e)   concurring opinion of Mr Pettiti;
        (f)   dissenting opinion of Mr Valticos,
              joined by Mr Gölcüklü;
        (g)   dissenting opinion of Mr Martens,
              joined by Mr Kuris.

Initialled: R. B.

Initialled: H. P.

                   CONCURRING OPINION OF JUDGE WALSH

        I fully agree with the judgment of the majority save for the
reservation set out in the last paragraph below.

        The fact is that the trial of the applicant must be regarded
as being contrary to Article 6 para. 1 of the Convention (art. 6-1)
because it was unfair inasmuch as some of the evidence upon which his
conviction was based was obtained by self-incrimination on the part of
the applicant and that the self-incrimination was not the result of the
unfettered exercise of his own will and the Court regards as a
fundamental right of an accused person that he must not be obliged or
compelled to incriminate himself.  Persons are always free to
incriminate themselves if in doing so they are exercising their own
will; but that is essentially different from a person being compelled
in any criminal case to be a witness against himself.  The process by
which the present applicant was brought to that situation was the
exercise of a particular power exercised under current
English legislation by inspectors who in the words of an English court
were exercising inquisitorial powers given them by law as distinct from
administering justice.  It is important to bear in mind that this case
does not concern only a rule of evidence but is concerned with the
existence of the fundamental right against compulsory
self-incrimination, which is recognised by this Court as a fundamental
right.  This privilege against self-incrimination is probably most
widely known by those who follow and study United States jurisprudence
as one of the most widely known and debated of the guarantees of
personal liberty in the Bill of Rights of the
United States Constitution, being one of the rights incorporated in the
Fifth Amendment of the United States Constitution.  The right to the
protection against compulsory self-incrimination is not simply a right
to refuse to testify in a court but must also apply to bodies endowed
by the law with inquisitorial powers; and the right to refuse to answer
questions which may open an incriminating line of inquiry.  The seeds
of this privilege were planted in the thirteenth century in
English common law when the English ecclesiastical courts began to
administer what was called the "oath ex officio" to suspected heretics.
The practice which involved questioning a suspect who had sworn to tell
the truth was in its day quite revolutionary because it replaced the
method of determining guilt by the procedure known as trial by ordeal
and the oath of compurgation.  Trial by ordeal was not the use of
torture to produce confessions but the ordeal was the trial itself and
the outcome determined guilt or innocence.  The oath of compurgation
involved the recitation by a suspect of a ritual oath of innocence.
If he stumbled in the recitation of the oath it was taken to be a mark
of God's judgment of his guilt.  Unfortunately the new system, namely
the oath ex officio, was abused by the various ecclesiastical courts
in their zealous search for heresy.  It could be administered without
any regard as to whether there was a probable cause to think the
accused was guilty and therefore was regarded as a very useful medium
of an untrammelled investigation into the life of the accused.  By the
sixteenth and seventeenth centuries in England the oath ex officio was
employed even by the Court of Star Chamber to detect those who dared
to criticise the King.  Opposition to the oath became so widespread
that there gradually emerged the common law doctrine that a man had a
privilege to refuse to testify against himself, not simply in respect
of the special kind of procedures already referred to, but also through
evolution of the common law, as a principle to be upheld in ordinary
criminal trials also.  The principle was that "a man could not be made
the deluded instrument of his own conviction".  In the
American colonies the privilege was espoused with special fervour
because of the interrogation abuses by colonial governors and before
the American War of Independence it had already been adopted in
seven different States in their own constitutions or bills of rights.
Particularly it imposed useful restrictions upon the powers of
colonial governors to question persons suspected of violating
English commercial law as has been pointed out, especially those which
regulated trade restrictions including smuggling, which was a popular
activity.  Privilege against obligatory self-incrimination was
available to a witness in general investigation by an executive or
legislative commission because it acted as a very useful brake on an
untrammelled power of investigation of some such bodies.  It also
ensured that fair trials could not be circumvented by the use of
investigating bodies instead of by a trial in court.  In effect, the
categories of governmental investigation in which this privilege plays
an especially important role are general investigations by
executive agencies or such like bodies and the questioning of a suspect
by the police and State agencies prior to criminal trials.  So far as
the investigators were concerned it was very early recognised that the
privilege against self-incrimination would be of very little use or
value if a man could be compelled to tell all to the authorities before
a trial.  In my opinion the privileged avoidance of self-incrimination
extends further than answers which themselves will support a
conviction.  It must logically embrace all answers which would furnish
a link in the chain of evidence needed to prosecute a conviction.  It
is sufficient to sustain the privilege where it is evident from the
implications of the questions and the setting in which they are asked
that a responsive answer to the question or an explanation as to why
it cannot be answered could also be dangerous because injurious
disclosure could result.  The question of privilege against
self-incrimination has been much debated in decisions of the
Supreme Court of the United States and indeed in other superior courts
in the United States of America.  What is significant in the context
of the present case is that, like many other provisions of the
United States Bill of Rights, to a large extent the privilege against
self-incrimination originated from the English common law as it applied
in the American colonies before independence.  It is worth recalling
that in the travaux préparatoires of the European Convention the
British representatives strongly made the point that English common law
already offered as many safeguards for the protection of fundamental
rights as did civil-law jurisdictions.  In the United States it was
possible by the existence of the constitutional Bill of Rights to
guarantee the continuation of the protections and privileges borrowed
from English common law in a way which could not be achieved in England
without the adoption there of similar constitutional provisions.  Other
common law countries also safeguarded certain common law rights by
incorporating them into their written constitutions as indeed did my
own country in the Constitution of Ireland.

        I should add that my vote on the question under Article 50
(art. 50) should not be taken as an acceptance that issues do not
arise, in the light of the Court's finding, as to whether the applicant
should be awarded some compensation by the national authorities for the
time during which he was deprived of his personal liberty as a result
of his conviction.  However, it is to be borne in mind that in
recent years courts in the United Kingdom have in several cases awarded
compensation or damages to persons whose convictions were reversed
because they had been obtained by the use or non-use of certain
evidential material at the trial, whose use or non-use, as the case may
be, was sufficient to establish that the verdict at the trial was
unsafe and should not be allowed.  They may again be asked to do so in
the present case.  It is moreover to be noted that in
English statute law there are various Acts which prohibit the
compulsory disclosure of offences or alternatively prevent such
evidence being used as part of the prosecution, in cases as varied as
bankruptcy, wrongful conversion, corruption and illegal practices,
destruction of wills and the stealing of documents to title, etc.  The
present statutory provisions which have given rise to the instant case
are a post-Convention constitutional departure from common law in
England but also from the principles disclosed in the various statutes
referred to.

                 CONCURRING OPINION OF JUDGE DE MEYER

        Though concurring in the result of this judgment, I have
serious reservations concerning the Court's reasoning in paragraph 67,
which seems to imply that the proceedings conducted by the
DTI inspectors under the Companies Act 1985 can be separated from those
involving "the determination of a criminal charge" (1).
_______________
1.  See paragraph 67 of the judgment.
_______________

        It is explicitly stated in section 434 (5) of the Act that "an
answer given by a person to a question put to him in the exercise of
powers conferred by [that] section ... may be used in evidence against
him" (2).  Therefrom it clearly results that for prosecution purposes
there is no real or practical difference between information so
obtained by the inspectors and information obtained by members of the
police or of the judiciary in the course of a criminal procedure
stricto sensu.  In the system of the Act concerned, each of these
categories of information is part of the evidence to be considered in
the determination of the criminal charge, and thus the "administrative"
or "preparatory investigation" (3) performed by the inspectors is in
fact a part of the criminal procedure.
_______________
2.  See paragraph 48 of the judgment.

3.  See paragraph 67 of the judgment.
_______________

        Therefore the right to silence and the right not to incriminate
oneself must also apply to that preliminary investigation.  These
rights were, in the first place, disregarded in the 1985 Act itself,
since its section 434 makes it an obligation to answer the questions
of the inspectors (4) and its section 436 provides for the punishment
of those refusing to answer them (5).
_______________
4.  See paragraph 48 of the judgment.

5.  See paragraphs 49 and 50 of the judgment.
_______________

                 CONCURRING OPINION OF JUDGE MORENILLA

        I share the conclusion of the majority that the applicant was
denied a right to a fair trial on account of the fact that his right
not to incriminate himself was infringed.

        However, in reaching this conclusion, the majority should not
have sought to ascertain the use, extensive or otherwise, which was
made of the applicant's statements during the criminal trial.  I cannot
subscribe to such an approach.  For me, the mere fact that the
applicant's statements had been obtained under compulsion and were
considered by the prosecution to be incriminating and thus capable of
reinforcing their case are sufficient reasons per se to have excluded
the statements at the trial.  The applicant was compelled to make the
statements in the proceedings before the DTI inspectors.  Had he
refused to testify in the administrative proceedings he would have
exposed himself to the sanctions under section 436 of the
Companies Act 1985 (see paragraph 49 of the judgment).  He was thus
under statutory compulsion to contribute actively to the preparation
of the case which was subsequently brought against him.  In such
circumstances, it is my opinion that there is no scope for examining
either the weight to be attached to the incriminating material so
furnished or the use made of it at the trial.  The very fact that such
statements were admitted in evidence against him undermined the very
essence of the applicant's right not to incriminate himself, a right
which the majority have properly considered to be at the heart of a
fair trial (see paragraph 68 of the judgment).

        The majority refer at paragraph 67 of the judgment to the
Court's earlier judgment in Fayed v. the United Kingdom
(21 September 1994, Series A no. 294-B) where it is stated that the
purpose of investigations such as the one at issue "was to ascertain
and record facts which might subsequently be used as the basis for
action by other competent authorities - prosecuting, regulatory,
disciplinary or even legislative".  I should like to stress that this
conclusion must be treated with particular caution, especially as
regards prosecutions.  While agreeing with the majority that statements
made under compulsion by an individual during such investigations may
be used as the basis for action by, inter alia, the prosecution, I
would emphasise that this does not mean that they may be admitted as
evidence against that individual in any subsequent
criminal proceedings.

                   CONCURRING OPINION OF JUDGE REPIK

                             (Translation)

Whilst I concur in the Court's finding that there has been a violation
of Article 6 para. 1 (art. 6-1), I am unable to agree with the wording
of the first sub-paragraph of paragraph 67 of the judgment inasmuch as
it implies that Article 6 para. 1 of the Convention (art. 6-1) does not
apply to the proceedings conducted by the DTI inspectors.

In the context of the judgment, that passage appears to be superfluous.
That issue was not raised by the parties (see paragraph 67 of the
judgment, first sentence of the first sub-paragraph) and the Court
stated that its sole concern was "the use made of the relevant
statements at the applicant's criminal trial" (paragraph 67 of the
judgment, second sub-paragraph).  If the passage concerned was merely
superfluous, the matter could be left there and disregarded on the
principle superfluum non nocet.

        However, the Court appears to have decided the issue, although
confining itself to a summary reference to the Deweer v. Belgium and
Fayed v. the United Kingdom judgments (27 February 1980, Series A
no. 35, and 21 September 1994, Series A no. 294-B), without taking
account of the fact that the issue to be decided differs from the ones
that arose in those two cases and without putting forward any argument
apt to support its position.  The question was not whether the
inspectors were empowered to determine a criminal charge.  The question
of the applicability of Article 6 para. 1 (art. 6-1) in the
criminal sphere is not the same as in the civil sphere considered in
the Fayed judgment.  It is quite unnecessary for the inspectors to have
any decision-making powers; it suffices that they have investigative
powers in respect of a criminal charge.  It is not so rare, in
particular in the financial sector, for administrative bodies to be
vested with powers at the pre-trial stage of criminal proceedings.
Admittedly, under domestic law, the proceedings before the inspectors
did not form part of the criminal proceedings, but the issue was
whether or not they concerned a criminal charge within the autonomous
meaning of that expression in Article 6 (art. 6).  In the instant case,
it is not clear that the answer to that question is no, if the
following circumstances are taken into consideration:

        (i)   by 12 January 1987 at the latest, the inspectors were in
        possession of concrete evidence that criminal offences had been
        committed (see paragraph 20 of the judgment);

        (ii)  as early as 30 January 1987 the applicant was identified
        as one of the persons suspected of having committed those
        offences (see paragraph 23 of the judgment);

        (iii) at the conference on 25 February 1987 attended by members
        of the Crown Prosecution Service, it was noted that
        police inquiries were justified since a fraud had clearly been
        committed.  However, it was decided to delay commencing the
        inquiry because the police, unlike the inspectors, had little
        prospect of obtaining useful evidence from the potential
        defendants (see Annex A to the further memorial of the
        Government, received at the registry on 22 January 1996).

        In their separate opinions Judges De Meyer and Martens have
taken a wholly contrary view on the question of the applicability of
Article 6 (art. 6) to the proceedings before the inspectors.

        As the Court ventured to determine that question - although it
was not necessary for its decision - it ought to have given a reasoned
answer and not merely made do with a bare reference to the
Fayed judgment.

                  CONCURRING OPINION OF JUDGE PETTITI

                             (Translation)

        I agree with the opinion of Mr Repik.

        However, I consider that, as regards the effect of the
inspectors' investigation on the proceedings, account must be taken of
the categories of investigation and the impact of the information
obtained on the proceedings themselves.

                 DISSENTING OPINION OF JUDGE VALTICOS,
                       JOINED BY JUDGE GÖLCÜKLÜ

                             (Translation)

        In the evolution of criminal procedure since the time when
confession was the decisive form of evidence and interrogation, indeed
inquisitorial procedure in general, was the preferred means of
obtaining it - and when, as a result, the term "the question" had
eventually come to be synonymous with "torture" - we have reached the
other extreme, that is the right not to incriminate oneself at all.
However, there may be disagreement about the scope of this principle.

        As the Court says, the Government submitted that the right not
to incriminate oneself was neither absolute nor immutable and that this
applied in particular to investigations of commercial and
financial fraud, which were especially complex.  It might be thought
that where someone exercises the right to remain silent and relies on
the right not to incriminate himself this could give rise to suspicion,
although admittedly it would not be a kind of implicit confession.  But
that is not the issue here.

        What is in issue is that inspectors acting pursuant to the
Companies Act 1985 asked Mr Saunders questions which he was obliged to
answer or be convicted of contempt of court and sentenced to a term of
imprisonment.  The Government submitted, however, that none of the
statements made at the time incriminated Mr Saunders.  But they might
have done or they might have been used in another case.

        However, a sense of proportion must be kept and some account
taken of priorities.  In his dissenting opinion Judge Martens makes
that point very persuasively, and I agree with him.  Seeking to elevate
to the status of an absolute rule the right of persons suspected of
criminal offences, including serious crimes, not to incriminate
themselves and not to answer any question which might incriminate them
would mean in many cases that society was left completely defenceless
in the face of ever more complex activities in a commercial and
financial world that has reached an unprecedented level of
sophistication.  Defence of the innocent must not result in impunity
for the guilty.  In the dilemma on this point, which has been commented
on, often in exaggerated terms, since ancient times, there is room for
reasonable middle courses.  In this field, as in many others, a proper
sense of proportion must be the guiding rule.

        In conclusion, I do not consider that there has been a
violation of Article 6 para. 1 (art. 6-1) in this case.

                  DISSENTING OPINION OF JUDGE MARTENS
                         JOINED BY JUDGE KURIS

                                   I

                             INTRODUCTION

                                   A

1.      I have found it impossible to convince myself that in this case
the United Kingdom has violated Mr Saunders's rights under Article 6
of the Convention (art. 6).  Nor has the Court's judgment so persuaded
me.

2.      What is at stake is a knotty, but important question relating
to a topic which is not only very controversial but also appears prone
to arousing rather strong emotions.

        Assume that the "right to silence" and the "privilege against
self-incrimination" are not absolute (see paragraphs 7 - 12 below) but
- like other rights implied in Article 6 (art. 6) - allow for
limitations; assume, further, that such limitations cannot be taken
into account unless they are in accordance with the law, pursue a
legitimate aim and are proportionate to that aim (1); then the question
becomes: Are these requirements fulfilled in the present case?
_______________
1.  See the Ashingdane v. the United Kingdom judgment of 28 May 1985,
Series A no. 93, pp. 24-25, para. 57; and my concurring opinion in the
De Geouffre de la Pradelle v. France judgment of 16 December 1992,
Series A no. 253-B.
_______________

3.      Unlike the majority, I have come to the conclusion that this
question is to be answered in the affirmative.  In order to elucidate
that opinion I find it necessary to start with some general
considerations with respect to both immunities in issue.

                                   B

4.      In its judgment of 8 February 1996 in the case of John Murray
v. the United Kingdom (Reports of Judgments and Decisions 1996-I,
p. 49, para. 45) the Court has proclaimed that the notion of a
fair procedure under Article 6 of the Convention (art. 6) comprises
two immunities: the "right to remain silent" and the "privilege against
self-incrimination".

        The wording of this paragraph in the John Murray judgment -
especially if compared to that in paragraph 44 of the Funke v. France
judgment of 25 February 1993 (Series A no. 256-A, p. 22, para. 44) -
clearly suggests that, in the Court's opinion, two separate immunities
are involved.  From a conceptual point of view it would, however, seem
obvious that the privilege against self-incrimination (= roughly
speaking, the right not to be obliged to produce evidence against
oneself) is the broader right, which encompasses the right to silence
(= roughly speaking, the right not to answer questions).

        The present judgment makes it less certain that the Court
really makes a distinction.  I will come back to that aspect of the
present judgment later on (see paragraph 12 below).  Here it suffices
to note that in my opinion two separate, but related, rights are
involved, of which the privilege against self-incrimination, as I have
just indicated, is the broader one.

5.      In paragraph 45 of the John Murray judgment the Court further
noted that these rights are not specifically mentioned in Article 6
(art. 6).  Of course it was, moreover, aware of the fact that the
Universal Declaration ignores both rights and that the
International Covenant on Civil and Political Rights only contains "the
right not to be compelled to testify against himself or to confess
guilt" (Article 14 para. 3 (g)).  It nevertheless felt entitled to hold
as indicated in paragraph 4 above on the ground that these
two immunities "are generally recognised international standards".
Thus it furnished, albeit subsequently, both some motivation for and
clarification of a similar finding in paragraph 44 of the
above-mentioned Funke judgment, a finding which has been widely
criticised as being unmotivated and unclear.

6.      In paragraph 45 of the John Murray judgment the Court even
ventured to go into the difficult and highly controversial question of
the rationale of these two immunities.  It said that:

        "By providing the accused with protection against improper
        compulsion by the authorities these immunities contribute to
        avoiding miscarriages of justice and to securing the aims of
        Article 6 (art. 6)."

                                   C

7.      In the John Murray case I belonged to the majority.  As the
Court noted, what was at stake in that case was whether these
two immunities were absolute.  I was - and I still am - convinced that
this question was rightly answered in the negative.  Consequently, I
found it neither necessary nor opportune to express my disagreement in
respect of the Court's observation that these two immunities "lie at
the heart of the notion of fair procedure".  I now do: I feel that this
high-strung qualification - which is repeated in paragraph 68 of the
present judgment - is somewhat exaggerating the weight of both rights,
more particularly that of the privilege against self-incrimination.

8.      I think that, historically, both rights must be seen as the
very negation of the old, inquisitorial notion that a confession is an
indispensable condition for conviction and therefore must, if need be,
be extorted.  These immunities thus served the purpose of preventing
suspects from being subjected to improper (2) physical or
psychological pressure.  I accept that both rights - and more
especially the right to remain silent - still serve this purpose.  Also
today it remains necessary to protect suspects under custodial
police questioning against such pressure.
_______________
2.  Term taken from paragraphs 45 and 46 of the John Murray judgment
previously cited; if the Court's terminology in that judgment implies,
as I think it does, that not every form of compulsion violates these
rights, I agree; if, however, it implies that every form of compulsion
is "improper" - which is a possible reading, the more so since it
squares with the rationale to be discussed in paragraph 10 below - I
disagree also on this point.
_______________

        I also accept that since there is a not negligible chance that
statements made under pressure may be unreliable, the rationale of the
immunities under discussion comprises - as the Court put it - the
avoidance of miscarriages of justice.

        Furthermore, I accept that there is a certain link between
these immunities and the presumptio innocentiae as enshrined in
Article 6 para. 2 (art. 6-2) in so far as they allow an accused not
only to keep silent during police interrogation but also to refuse to
answer questions of investigating or trial judges as well as to give
evidence himself (3).
_______________
3.  See paragraph 47 of the above-mentioned John Murray judgment.
_______________

9.      However, these rationales hardly justify the Court's
qualification of these two immunities as lying "at the heart of the
notion of fair procedure".  I therefore suspect that other, not
explicitly mentioned, rationales have contributed to that
qualification.

        In this context I note that legal writers and courts have
frequently accepted a further rationale (4).  Its formulations vary,
but they all essentially boil down to the proposition that respect for
human dignity and autonomy requires that every suspect should be
completely free to decide which attitude he will adopt with respect to
the criminal charges against him.  On this view it would be improper,
because incompatible with such respect, to compel an accused to
cooperate in whatever way in bringing about his own conviction.  This
rationale often seems to be the main justification for the broader
privilege against self-incrimination.
_______________
4.  I pass over - as in my view defective - such "rationales" as that
these immunities prevent a suspect from being subjected to "cruel
choices", or that it is unethical to compel somebody to collaborate in
bringing about his own doom. Such "rationales" cannot justify the
immunities under discussion since they obviously presuppose that the
suspect is guilty, for an innocent suspect would not be subjected to
such choices nor bring about his own ruin by answering questions
truthfully!  Innocent suspects are, therefore, not treated cruelly or
unethically, whilst guilty suspects should not complain that society
does not allow them to escape conviction by refusing to answer
questions or otherwise hiding evidence.
_______________

        The present judgment strongly suggests that the Court now has
embraced this view.  A first argument for this interpretation is that
in the second sentence of paragraph 68 it repeats the rationale given
in John Murray (see paragraph 6 above) but - by prefacing its quotation
by the words "inter alia" - underlines that this is only part of the
rationale of the two immunities.  A second and still more telling
argument is the stress laid, both in the last sentence of paragraph 68
and in paragraph 69, on the will of the accused: the Court now
underlines that the privilege against self-incrimination is primarily
concerned "with respecting the will of an accused person".  That comes
very near to the rationale outlined above which allies both immunities
to respect due to human dignity and autonomy.

10.     I do not, of course, deny that there is an element of truth in
this view, but I am inclined to think that its weight should not be
exaggerated.  "Human dignity and autonomy" have an absolute ring, but
in our modern societies it must remain possible to protect the
community against forms of crime, the effective combating of which
makes it imperious to compel (specific categories of) suspects to
cooperate in bringing about their own conviction.  I believe that
especially the broader privilege against self-incrimination may be
restricted by law in order to protect legitimate interests of the
community.  In my opinion it is, in principle, open to the national law
to compel (specific categories of) suspects by threat of punishment to
contribute passively or actively to the creation of evidence, even
decisive evidence, against themselves.  Suspects may be compelled to
allow or even to cooperate in the taking of fingerprints, in the taking
of blood for alcohol tests, in the taking of bodily samples for
DNA tests or to blow in a breathalyser in order to ascertain whether
they are drunken drivers.  In all such and similar cases
national legislatures are, in my opinion, in principle free to decide
that the general interest in bringing about the truth and in bringing
culprits to justice shall take precedence over the privilege against
self-incrimination (5).
_______________
5.  It remains, of course, for the European Court of Human Rights to
control whether the restrictions of the privilege are in accordance
with the law, pursue a legitimate aim and are proportionate to that aim
- see paragraph 2 above.
_______________

11.     I fear that the impugned qualification of both immunities (as
lying "at the heart of the notion of fair procedure") as well as the
newly advanced rationale tying them to respecting "human dignity" imply
that, in the Court's opinion, the privilege against self-incrimination
is far more absolute than it is in my view.

        But for paragraph 69 of the present judgment - to be discussed
in paragraph 12 below - I would have added that this difference of
appreciation might also be illustrated by the above-mentioned
Funke judgment.  What was at stake in that case was not so much the
right to remain silent as the privilege against self-incrimination, for
Funke refused to hand over (possibly) incriminating documents.  The
Commission had, in my opinion rightly, concluded that the legitimate
interests of the community overrode the privilege (6), but the Court
curtly refused to follow, which strongly suggests that in its opinion
there was no room for a balancing exercise at all.  It is worth while
noting that the reasoning subsequently given in the
John Murray judgment, namely its reliance on generally recognised
international standards (7), does certainly not justify this decision:
both under the Fifth Amendment to the United States Constitution (8)
and under the case-law of the Court of Justice of the
European Communities (9) there is a right to remain silent, but in
principle not a right to refuse to hand over documents, let alone an
absolute right to do so.
_______________
6.  Loc. cit., pp. 33 et seq., paras. 63-65.

7.  See paragraph 5 above.

8.  There is only a valid Fifth Amendment claim if, due to the
particular facts and circumstances of the case, the "act of producing"
is both "testimonial" and "incriminating".  To be noted: when a
custodian of a collective entity produces the corporate records and
documents his act does not constitute testimonial self-incrimination;
he is, however, protected from condemning himself by his own
oral testimony.  In the context of my dissent in the present case it
is of interest to note one of the Supreme Court's arguments for this
restrictive doctrine:

        "We note further that recognising a Fifth Amendment privilege
        on behalf of the records custodians of collective entities
        would have a detrimental impact on the Government's efforts to
        prosecute `white-collar crime', one of the most serious
        problems confronting the law-enforcement authorities.  `The
        greater portion of evidence in wrongdoing by an organisation
        or its representatives is usually found in the official records
        and documents of that organisation.  Were the cloak of the
        privilege to be thrown around these impersonal records and
        documents, effective enforcement of many federal and State laws
        would be impossible.' ...  If custodians could assert a
        privilege, authorities would be stymied not only in their
        enforcement efforts against those individuals but also in their
        prosecutions of organisations." (Braswell v. US
        487 US 99 (1988)).

9.  See its Orkem/Commission judgment of 18 October 1989 (374/87 [1989]
ECR I-3343 et seq.) and its Otto/Postbank judgment of 10 November 1993
(C-60/92 [1993] ECR I-5683 et seq.).
_______________

12.     It is, however, at least open to doubt whether the Court in
paragraph 69 of its present judgment has not - implicitly, without
saying so openly, let alone without adducing cogent reasons for doing
so - overruled Funke and essentially converted to the more restricted
doctrine adopted inter alia by the Court of Justice of the
European Communities.  In this context it is significant that
paragraph 69 refers to how the privilege against self-incrimination is
understood "in the legal systems of the Contracting States and
elsewhere".  What is more important is that, whilst the first sentence
of paragraph 69 seems to amalgamate the privilege against
self-incrimination with the right to remain silent, the second sentence
seems to imply that - contrary to Funke - the privilege does not
comprise the power to refuse to hand over incriminating documents nor
that to prevent the use of such documents, obtained under compulsion,
in criminal proceedings.

        I confess that I fail to see any other possible construction
of paragraph 69 so that I presume that the above interpretation is
correct.  On that assumption two points should be made.

        The first is that the merging of the conceptually broader right
not to incriminate oneself with the right to remain silent reduces the
scope of protection afforded to suspects.  In my understanding of the
privilege against self-incrimination the Court retains the power to
control national legislation and practice (see paragraph 10 above),
which it has forfeited under its present doctrine.

        The second point is that it is - to put it mildly - open to
grave doubt whether the distinction made between the licence to use in
criminal proceedings material which has "an existence independent from
the will of the suspect" and the prohibition of such use of material
which has been obtained "in defiance of his will" is a sound one.  Why
should a suspect be free from coercion to make incriminating statements
but not free from coercion to cooperate to furnish incriminating data?
The Court's newly adopted rationale does not justify the distinction
since in both cases the will of the suspect is not respected in that
he is forced to bring about his own conviction.  Moreover, the
yardstick proposed is not without problems: can it really be said that
the results of a breathalyser test to which a person suspected of
driving under the influence has been compelled have an existence
independent of the will of the suspect?  And what about a PIN code or
a password into a cryptographic system which are hidden in the
suspect's memory?

        In sum: I cannot accept the new doctrine.  I stick to the
notion of the privilege against self-incrimination and the right to
remain silent being two separate, albeit related, immunities which
allow for limitations.

                                  II

                     FURTHER DELINEATING THE ISSUE

                                   A

13.     It is high time, after these introductory remarks of a general
nature, that I turn to the case at hand.

        In doing so a first point to make is that it is of the utmost
importance to keep in mind that in this case two stages should be
clearly and carefully distinguished: at a first stage Mr Saunders had
to appear before the inspectors of the Department of Trade and Industry
(DTI) and only at a second stage did he have to face trial.

14.     It is important to carefully distinguish both stages since
Article 6 (art. 6) applies to the second stage only.  The reason is
that during the first stage Mr Saunders was not yet "`charged with a
criminal offence', within the autonomous meaning of this expression in
Article 6 (art. 6)" (10).
_______________
10.  See the above-mentioned Funke judgment, p. 22, para. 44.
_______________

        Although, strictly speaking, paragraph 67 of the Court's
judgment only reminds us that neither Mr Saunders nor the Commission
have alleged otherwise, its wording and especially the reference to the
Deweer judgment (11) make it clear that a majority within the majority
subscribes to this proposition.
_______________
11.  See note 15 below.
_______________

15.     Why was Mr Saunders not yet "charged" during this first stage?
Simply because he had not yet received an "official notification given
to an individual by the competent authority of an allegation that he
has committed a criminal offence" (12).
_______________
12.  See the Corigliano v. Italy judgment of 10 December 1982, Series A
no. 57, p. 13, para. 34.
_______________

        Admittedly, a charge "may in some instances take the form of
other measures which carry the implication of such an allegation and
which likewise substantially affect the situation of the suspect" (13).
It might, therefore, be argued that the inquiry before the DTI
inspectors was a form of such "other measures" which: (1) in view of
the purpose of the inquiry and the circumstances of the case, carried
the implication that Mr Saunders, who was a director of Guinness at the
time of the bidding, was suspected of having committed a
criminal offence and (2) was affecting his situation of suspect as
substantially as if a criminal investigation had been ordered against
him.
_______________
13.  Ibid.
_______________

        There is, however, no merit in this argument since, just as
there is no "charge" if the "official notification" is not given by
"the competent authorities" - that is, by the competent prosecuting
authorities -, so there is no "charge" if the "other measures" do not
emanate from the competent prosecuting authorities.  It is common
ground, however, that the inquiry before the DTI inspectors - apart
from being, essentially, investigative (14) - did not emanate from nor
was taken over by the prosecuting authorities (15).
_______________
14.  See the Court's judgment of 21 September 1994 in the case of Fayed
v. the United Kingdom, Series A no. 294-B, pp. 47 et seq., paras. 61
and 62.  See also paragraph 47 of the present judgment.

15.  See the Court's judgment of 27 February 1980 in the case of Deweer
v. Belgium, Series A no. 35.  In that case there was no official
notification of impending prosecution.  There was an inspection which
was not performed within the context of the repression of crime.
Nevertheless, as from a certain moment, the inspection got to a point
that Deweer was deemed to be "charged" and that was when the
procureur du Roi - the prosecuting authority par excellence - offered
Deweer a means to avoid prosecution (see paragraph 46 in conjunction
with paragraph 43).  Similarly: application no. 4517/70, report of the
Commission, Decisions and Reports 2, p. 21, paras. 68-72.
_______________

16.     It follows, firstly, that the fact that Mr Saunders was not
entitled during this first stage to refuse to answer incriminating
questions did not give rise to any violation of his rights under
Article 6 (art. 6), especially not the right to remain silent or the
privilege against self-incrimination.

        Secondly, it follows that the essential issue in the
present case is whether, where someone has made incriminating
statements in the context of an inquiry during which he is obliged to
answer any and all questions on pain of fine or imprisonment, it would
be compatible with the right to silence and the privilege against
self-incrimination to allow the use of these statements as evidence
against him at his trial (16).
_______________
16.  So far I am in agreement with the Court: see paragraph 67 of its
judgment.
_______________

                                   B

17.     As already indicated in paragraph 2 above this is an important
issue.

        Our modern societies are "information societies", also in the
sense that all of us, government agencies as well as citizens, to a
large extent depend on various kinds of information, notably on
information provided by (other) citizens.  This applies in particular
to government agencies: countless administrative decisions - whether
imposing a duty or granting a favour - are based on such information.
Information which simply cannot always be verified beforehand.  One
must, therefore, be able to rely on the veracity of such information.
However, the old virtue of truthfulness has largely disappeared from
modern morals.  We have become "calculating citizens", putting our own
interests above those of the community.  No wonder that fraud in
multiple forms is the bane of our societies: fraud in the field of
taxes (17) and social security, fraud in the field of governmental
subventions, fraud in the environmental sphere (illegal disposal of
dangerous waste), fraud in the sphere of the arms trade and drugs
(money laundering), fraud in the corporate sphere which may imply any
species of the other frauds just mentioned.  Frauds that are all the
more tempting since our computerised world with its manifold
cryptographic devices makes it much easier to effectively hide
them (18).
_______________
17.  See Aronowitz, Laagland and Paulides, Value-Added Tax Fraud in the
European Union (Kugler Publications, Amsterdam, 1996) and the addendum
thereto, which on a comparative basis gives data on the methods of
combating this kind of fraud in the Netherlands, Belgium, the UK and
Germany.

18.  "These shadow-accounts were maintained in special files, shielded
by an impressive battery of passwords, software `bombs' and other
defence mechanisms, and in theory at least could not be accessed
through the main computer."  Salman Rushdie, The Moor's Last Sigh.
The committee which elaborated Recommendation No. R (95) 13 - see
following note - noted "the expanding misuse by offenders of new
telecommunication technologies and facilities, including cryptography".
_______________

        It is generally accepted, therefore, that the mere threat of
penal and other sanctions does not suffice, but that regular random as
well as special proactive audits, inspections and investigations by
highly specialised agencies are indispensable for effectively combating
such frauds.  The auditors not only need expert knowledge, they also
cannot do without "appropriate special powers" (19).  That normally
includes not only the right to inspect correspondence and files, to
verify books and accounts, but also to require a certain degree of
active cooperation (20) by those under investigation, to be informed
of passwords and other secret information, to secure the handing over
of documents and replies to questions.  Normally, such rights are
enforceable by threat of punishment.
_______________
19.  Term borrowed from Committee of Ministers
Recommendation No. R (95) 13 concerning problems of criminal procedural
law connected with information technology.  See on this recommendation:
P. Csonka, Computer Law and Security Report 1996 (vol.12), pp. 37 et
seq.  The introductory paragraph of this very helpful article shows
that the problem has been studied within the framework of the OECD, the
EU and the UN: the relevant reports and recommendations are quoted.

20.  See Chapter III of the appendix to Recommendation No. R (95) 13
referred to in the previous note.  Paragraph 10 of that chapter
stipulates that "the investigating authorities should have the power
to order persons who have data in a computer system under their control
to provide all necessary information to enable access to a
computer system and the data therein".  Paragraph 10 refers to the
obligation to cooperate in a criminal procedure "subject to
legal privileges or protection".  I quote it here since it demonstrates
the necessity of a specific duty of cooperation with regard to
modern technology.
_______________

        Hence - and because, obviously, such audits may imperceptibly
evolve into a criminal investigation - there is an inherent conflict
with the right to silence and the privilege against self-incrimination.

18.     This conflict may be solved in various ways and I think that
we should realise that, even in a given legal system, different
solutions may coexist.

        Legislatures whose starting-point for such audits is the idea
that ascertaining the truth is the weightier interest and,
consequently, deny those under investigation the right to silence and
the privilege against self-incrimination by making it an offence not
to answer questions or otherwise to refuse cooperation, have several
options concerning the use in evidence of the material thus acquired
in subsequent criminal proceedings against those who have been under
investigation.  Sometimes it is provided that such material cannot be
used in evidence at all; sometimes, that such material may only be used
in evidence in case of a prosecution for perjury; sometimes it may also
be used when a person who has been under investigation, in
criminal proceedings against him, gives evidence which is incompatible
with the material in question; sometimes the material may be used in
evidence unless the trial court finds that under the circumstances such
use would be unfair.  The present case is an example of the latter type
of solution: whilst subsections (1) and (3) of section 434 of the
1985 Act (21) leave no doubt that this provision concerns the type of
investigation discussed in paragraph 16 above, subsection (5) of that
provision explicitly allows the use in evidence of answers given to the
DTI inspectors.
_______________
21.  See paragraph 48 of the Court's judgment.
_______________

19.     It follows that the main issue in the present case is whether
subsection (5) of section 434 of the 1985 Act is incompatible per se
with the right to silence or the privilege against self-incrimination.
In view of what I have said in paragraph 17 above on audits it is
difficult to deny that this issue is of general importance.  The more
so since holding that subsection (5) of section 434 of the 1985 Act is
incompatible per se with the right to silence or the privilege against
self-incrimination may, as a matter of inherent logic, entail that
(since no use may be made of the answers of those who have been under
investigation by DTI inspectors) the very same prohibition affects
facts discovered in consequence of such answers, such as the existence
of a foreign bank account or of a secret file!

                                  III

                         DECIDING THE ISSUE(S)

20.     In trying to decide the main issue my starting-point is that
I accept that the United Kingdom legislature - which in such matters
should be allowed a certain margin of appreciation - could reasonably
conclude that, where there are serious rumours of fraudulent
management, the public interest of protecting society against such
fraud demands that the truth comes out and that this justifies the
system of inquiry as set up under the 1985 Act, a system under which
officers and agents of the investigated company are obliged to
cooperate with the DTI inspectors as laid down in section 434 of that
Act, without enjoying the immunities under discussion.

21.     A first point to make is that subsection (5) of section 434 of
the 1985 Act presupposes that the answers are incriminating: it allows
their use in evidence "against him".

        A second point to make is that, although at first blush it may
appear that what is at stake is not the right to silence, but rather
the privilege against self-incrimination, further analysis suggests
that both rights are equally implied: on this view what is in issue is
whether it is permissible to use in evidence answers obtained in an
investigation in respect of which the legislator has deliberately set
aside both the right to silence and the privilege against
self-incrimination (see paragraphs 17 and 18 above and the text of
sections 434 and 436 of the 1985 Act).

22.     I confess that I have hesitated somewhat in deciding the main
issue.  However, in the end I have come to the conclusion that I had
not been persuaded that subsection (5) of section 434 of the 1985 Act
is incompatible per se with the right to silence or the - broader -
privilege against self-incrimination.  It is only fair to say that in
this decision the serious consequences of the latter view indicated at
the end of paragraph 19 above have played their part.

        As already indicated in paragraphs 7 to 12 above, I see neither
right as absolute and I therefore fundamentally disagree with the
sweeping statement in paragraph 74 of the Court's judgment according
to which: "The public interest cannot be invoked to justify the use of
answers compulsorily obtained in a non-judicial investigation to
incriminate the accused during the trial proceedings."

        I accept that at the trial of a driver accused of driving when
intoxicated the outcome of a breathalyser test to which he has been
compelled may be used in evidence against him, although it was obtained
as a result of the legislature's setting aside the privilege against
self-incrimination.  Why, then, should it per se be inadmissible to use
in evidence statements obtained as a result of a similar setting aside
both of the right to silence and the privilege against
self-incrimination?

        As far as the rationale for these immunities is to provide the
accused with protection against improper compulsion by the authorities
and, thereby, to contribute to avoiding miscarriages of justice, their
rationale does not require to hold that subsection (5) of section 434
of the 1985 Act is inadmissible per se: the impartiality of the
DTI inspectors who merely seek to establish the truth, their
professional qualities - generally speaking senior barristers and
accountants -, the procedure before them, based as it is on
natural justice under control of the courts, and, finally, the
circumstance that those under investigation are given advance notice
in writing of what is required of them and may be accompanied by their
lawyers (22), seem to offer sufficient guarantees against improper
physical or psychological pressure, whilst the power of the trial judge
under section 78 of the Police and Criminal Evidence Act 1984 (PACE)
(23) constitutes a further guarantee against unfairness arising from
the inquisitorial nature of their inquiry as well as against any
residual danger of miscarriage of justice.
_______________
22.  See paragraphs 42 and 43 of the Court's judgment.

23.  See paragraph of the Court's judgment.
_______________

        Nor does the argument as to "human dignity and autonomy" compel
one to conclude that the use in evidence of the answers given in the
inquiry is per se inadmissible.  As I have already indicated, this
rationale is also to be relativised (see paragraph 10 above) and there
is special justification for doing so in the present context.  After
all, under the hypothesis we are discussing, the answers are
"incriminating" (see paragraph 21 above).  That means that they to a
certain extent disclose both the offence and its perpetrator.  The
question therefore comes down to asking whether that disclosure may be
used when trying to bring that perpetrator to justice.  Would it not
be stretching the respect for his human dignity and autonomy - or, in
the terminology of the Court, the respect for his will - too far to
hold that the mere fact that he has made these "disclosing" statements
in the context of an inquiry during which he enjoyed neither immunity
necessarily results in making any and all use of such answers in
evidence against him inadmissible per se?

        I think that this question should at any rate be answered in
the affirmative as making any and all use of such answers in evidence
inadmissible per se would imply that there is a good chance that -
although to a certain extent it had already been disclosed that he was
the perpetrator - he would nevertheless go unpunished which - as I am
prepared to accept (24) - in practice would be the effect in a good
many of these complicated fraud cases.  I find it rather difficult to
accept that once the result of the investigation is that such frauds
are exposed, the right to silence and the privilege against
self-incrimination should, nevertheless, make it to all practical
purposes impossible that those whose responsibility is to a certain
extent already disclosed are brought to justice and punished.  This
would lead to undermining the deterrent function of the criminal law
in an area where it is particularly needed (see paragraph 17 above)
and, furthermore, seriously offend the public's sense of justice.
_______________
24.  I recall that Mr Saunders submitted that the prosecution case
against him would have been in serious difficulties but for the use of
the interview transcripts (see paragraph 83 of the Court's judgment).
_______________

23.     There is one further argument against the admissibility of
legislation of the present type that must be discussed separately since
it apparently impressed the Commission and, accordingly, has been -
successfully (25) - urged by counsel for the applicant in his pleadings
before the Court.
_______________
25.  See the second sub-paragraph of paragraph 74 of the Court's
judgment.
_______________

24.     I recall that we are discussing a two-tier type legislation,
characterised by (1) establishing investigation proceedings in which
those under investigation are obliged to cooperate with the
investigators and to answer their questions without enjoying the
two immunities under discussion (the first tier) and (2) making it,
moreover, possible that answers obtained in those investigation
proceedings be used in evidence at a subsequent trial against someone
who has been under investigation (the second tier).  The overall
justification of this type of legislation is to protect the public
against serious forms of fraud.  That public interest justifies,
firstly, setting aside the immunities under discussion in the first
tier (the investigation stage) and, secondly, using the answers in the
second tier (the trial stage) in order to make sure that, where the
first tier has disclosed a perpetrator, that perpetrator gets his
punishment in the second tier.  Seen from the latter's viewpoint,
however, the whole process nullifies the right to silence and the
privilege against self-incrimination.

        The argument to be discussed claims that if a two-tier process,
which amounts to nullifying these immunities for the sake of protecting
the public against serious forms of fraud, is to be condoned, such a
two-tier process must also be accepted if on similar arguments - that
is: on the argument that public interest in being protected against
robbery, violence, murder, etc., outweighs these very same immunities -
it is established in respect of ordinary crimes.  Which would,
obviously, be the end of the two immunities under discussion.

25.     The argument is flawed in that it disregards a difference
between the various forms of serious fraud and such ordinary crimes as
robbery, violence and murder which in the present context is essential:
in ordinary crime cases discovery of the crime nearly always precedes
the investigation which, consequently, as a rule merely aims at
establishing "who did it"; whilst in fraud cases the investigation
generally has as its first and main purpose to establish whether or not
a crime has been committed at all.  This difference is essential since
it explains why investigations into ordinary crimes as a rule come
within the ambit of Article 6 (art. 6), whilst investigations in the
field of possible fraud do not: those who are targeted by
investigations of the former type as a rule ipso facto become "charged
with a criminal offence" within the autonomous meaning of this
expression in Article 6 (art. 6), whilst those who are under an
investigation into possible fraud do not, and, therefore, may, without
violation of Article 6 (art. 6), be denied the privileges under
discussion in the first tier.

        As to the second tier, where a charge has been brought so that
Article 6 (art. 6) ipso facto applies always, there are sound arguments
for distinguishing corporate fraud from other species of crime.  First,
there are important typological differences between the often well
bred, highly sophisticated corporate wrongdoer and other criminals and,
secondly, there is the essential feature which these forms of fraud
share and sets them apart from other species of crime, namely that
generally they are only detectable after an investigation of the type
referred in paragraph 17 above and, moreover, may only be successfully
prosecuted when the results of that investigation may be used in
evidence against the wrongdoer (see paragraph 22 above).

        For these reasons the argument fails.  So does a similar
objection from the applicant which puts the same argument in the form
of alleged discrimination between "corporate criminals" who are
deprived of the two immunities under discussion and "ordinary
criminals" who enjoy them.  The differences just mentioned imply that
the cases are not similar, whilst the argument moreover fails to take
into account the essential difference between the very urbane
proceedings before the DTI inspectors and custodial police questioning.

26.     My conclusion that subsection (5) of section 434 of the
1985 Act is not incompatible per se with the two immunities does not,
of course, exempt me from examining whether under the specific
circumstances of the case the use of the applicant's answers to the
DTI inspectors was nevertheless unfair.  This is what the Government
called the "factual issue".

        In this respect I recall: (1) that under section 78 of
PACE (26) it was for the trial judge to see to it that use of these
answers did not have "such an adverse effect on the fairness of the
proceedings that the court ought not to admit it"; (2) that the trial
judge held two extensive voir dires on the subject at the end of which
he gave rulings which demonstrated preparedness to use his powers under
the provision as well as sensitivity for the interests of the defence -
inter alia by excluding the evidence from the eighth and
ninth interviews (27); and (3) that the trial judge, in his summing-up
- which was qualified by the Court of Appeal as "in the main a masterly
exposition" (28) -, compared and contrasted what the applicant had said
in court with his answers to the DTI inspectors, thereby demonstrating
that he did not consider such use unfair (29).
_______________
26.  See paragraph 52 of the Court's judgment.

27.  See paragraphs 28 and 29 of the Court's judgment.

28.  See paragraph 38 of the Court's judgment.

29.  See paragraph 33 of the Court's judgment.
_______________

        Apparently, Mr Saunders has not been able to persuade the
Court of Appeal that the trial judge has been remiss in guarding the
fairness of the proceedings.  Nor have I been so persuaded.

        In paragraph 72 the Court attaches much weight to the fact that
at a certain stage of the trial - days 45 to 47 - the transcripts of
the interviews (30) were read to the jury.  I recall, however, that
right from the beginning of the trial Mr Saunders's defence was
essentially that, whatever fraud had taken place, he was innocent
because ignorant.  He maintained that he knew nothing about giving of
indemnities or the paying of success fees and that he had not been
consulted on such matters.  The transcripts made it possible to refute
this defence and were used to do so (31).
_______________
30.  In paragraph 72 the Court says "part of the transcript", but
paragraph 31 clearly implies that the complete transcripts were read
which makes it understandable that the reading took three days.  That
the transcripts were read in full is the more probable since reading
only parts could have been unfair towards the defence.  However, if one
accepts - as I do - that the transcripts were read in full, this
reading can hardly be styled as "such extensive use".

31.  See paragraph 31 of the Court's judgment.  I fail to understand
why the Court, in paragraph 72 of its judgment seems to find it
material that the prosecution "must have believed that the reading of
the transcripts assisted their case in establishing the applicant's
dishonesty".  Of course they did and, as the outcome of the trial
shows, rightly so.  But what has that to do with the issue whether that
reading made the trial unfair?  Does the Court suggest that the
prosecution had improper motives?  Is that why it furthermore tries to
base an argument on the prosecution's wish to avail itself also of the
transcripts of the eighth and ninth interview, although in paragraph 29
of its judgment it has established that these transcripts had been
ruled out by the trial judge?  These uncertainties make the Court's
reasoning on this important issue, which at any rate seems rather the
more unpersuasive.
_______________

        I therefore find that - whatever is the exact meaning of the
Court of Appeal's rather approximate remark that the interviews "formed
a significant part of the prosecution case" (32) - Mr Saunders's
answers to the DTI inspectors were only used in evidence against him,
essentially, in order to demonstrate that the evidence which he had
chosen to give at his trial was not reliable in that it was
incompatible on certain points with those answers.  I do not consider
that to have been an unfair use of those answers.
_______________
32.  See paragraphs 40 and 72 of the Court's judgment.
_______________

27.     For the above reasons I have voted against finding a violation
of the applicant's rights under Article 6 (art. 6).