CEDH · CASELAW;REPORTS;ENG — 10 mai 1994

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                        EUROPEAN COMMISSION OF HUMAN RIGHTS                          Application No. 19187/91                               Ernest Saunders                                   against                             the United Kingdom                          REPORT OF THE COMMISSION                          (adopted on 10 May 1994)                              TABLE OF CONTENTS                                                                    page   I.     INTRODUCTION       (paras. 1-19) . . . . . . . . . . . . . . . . . . . . . . . . 1         A.   The application           (paras. 2-4). . . . . . . . . . . . . . . . . . . . . . . 1         B.   The proceedings           (paras. 5-14) . . . . . . . . . . . . . . . . . . . . . . 1         C.   The present Report           (paras. 15-19). . . . . . . . . . . . . . . . . . . . . . 2   II.    ESTABLISHMENT OF THE FACTS       (paras. 20-58). . . . . . . . . . . . . . . . . . . . . . . . 3         A.   Particular circumstances of the case           (paras. 20-50). . . . . . . . . . . . . . . . . . . . . . 3         B.   Relevant domestic law           (paras. 51-58). . . . . . . . . . . . . . . . . . . . . . 7   III.   OPINION OF THE COMMISSION       (paras. 59-77). . . . . . . . . . . . . . . . . . . . . . . .10         A.   Complaint declared admissible           (para. 59). . . . . . . . . . . . . . . . . . . . . . . .10         B.   Point at issue           (para. 60). . . . . . . . . . . . . . . . . . . . . . . .10         C.   Article 6 of the Convention           (paras. 61-76) )   . . . . . . . . . . . . . . . . . . . .10         CONCLUSION       (para. 77). . . . . . . . . . . . . . . . . . . . . . . . . .14         CONCURRING OPINION OF MR. LOUCAIDES . . . . . . . . . . . . .15         DISSENTING OPINION OF MR. SCHERMERS . . . . . . . . . . . . .16   APPENDIX I        HISTORY OF THE PROCEEDINGS . . . . . . . . . . . .18   APPENDIX II       DECISION ON ADMISSIBILITY. . . . . . . . . . . . .19   I.     INTRODUCTION   1.     The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.   A.     The application   2.     The applicant is Ernest Saunders, a British citizen born in 1935 and resident in London. He is represented by Mr. Paul Williams, a solicitor practising in London.   3.     The application is directed against the United Kingdom.   The respondent Government are represented by Mr. Iain Christie as Agent, from the Foreign and Commonwealth Office.   4.     The case concerns the complaint of the applicant that the use at his trial of statements made by him to the Department of Trade and Industry (DTI) inspectors under their compulsory powers deprived him of a fair hearing. It raises issues under Article 6 para. 1 of the Convention.   B.     The proceedings   5.     The application was introduced on 20 July 1988 and registered on 11 December 1991.   6.     On 31 August 1992, the Commission decided to communicate the application to the respondent Government for their written observations on the admissibility and merits of the application.   7.     The Government submitted their written observations on 12 January 1993.   The applicant submitted his written observations in reply on 25 February 1993.   8.     On 7 May 1993, the Commission decided to invite the parties to an oral hearing on the admissibility and merits.   9.     The Government submitted further written observations on 29 September 1993 and the applicant submitted supplementary observations on 19 November 1993.   10.    At the hearing which was held on 7 December 1993, the Government were represented by   Mrs. Audrey Glover as Agent, Mr. Michael Baker Q.C., Counsel, Mr. Richard Horwell, Counsel, and Mrs. Tessa Dunstan, Mr. Robert Burns, Mr. Gordon Dickinson and Mr. John Gardner as Advisers.   The applicant was represented by Mr. Jonathan Caplan Q.C., Counsel, Mr. Justin Cole, Counsel, Mr. Paul Williams, Solicitor, Mr. George Devlin, the applicant's agent and Ms. Laura Devlin as assistant and translator. The applicant was also present.   11.    On 7 December 1993, the Commission declared admissible the applicant's complaints relating to the use of the DTI statements at his trial. The remainder of the application was declared inadmissible.   12.    The parties were then invited to submit any additional observations on the merits of the application.   13.    On 14 February 1994, the Government submitted further observations.   14.    After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, placed itself at the disposal of the parties with a view to securing a friendly settlement of the case.   In the light of the parties' reactions, the Commission now finds that there is no basis on which a friendly settlement can be effected.   C.     The present Report   15.    The present Report has been drawn up by the Commission   in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:         MM.   C.A. NØRGAARD, President            S. TRECHSEL            A. WEITZEL            G. JÖRUNDSSON            J.-C. SOYER            H.G. SCHERMERS            H. DANELIUS       Mrs. J. LIDDY       MM.   L. LOUCAIDES            J.-C. GEUS            G.B. REFFI            N. BRATZA            I. BÉKÉS            J. MUCHA            D. SVÁBY   16.    The text of the Report was adopted by the Commission on 10 May 1994 and is now transmitted to the Committee of Ministers in accordance with Article 31 para. 2 of the Convention.   17.    The purpose of the Report, pursuant to Article 31 para. 1 of the Convention, is         1)   to establish the facts, and         2)   to state an opinion as to whether the facts found disclose           a breach by the State concerned of its obligations under           the Convention.   18.    A schedule setting out the history of the proceedings before the Commission is attached hereto as Appendix I and the Commission's decision on the admissibility of the application as Appendix II.   19.    The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.   II.    ESTABLISHMENT OF THE FACTS   A.     Particular circumstances of the case   20.    On 1 October 1981, the applicant was appointed Managing Director of Guinness PLC (his title later being changed to Chief Executive Officer).   21.    On 2 December 1985, Argyll PLC, a large Scottish company, announced a bid to take over Distillers PLC, which manufactured and distributed alcoholic drinks.   Distillers PLC sought help from Guinness in resisting the bid.   In January 1986, Guinness announced a counter- bid.   There was a series of further increased offers from Argyll and Guinness.   On 18 April 1986, the shareholders of Distillers accepted the bid made by Guinness.   22.    On 9 May 1986, the applicant was appointed Deputy Chairman of Guinness.   On 11 September 1986, the applicant was appointed Chairman.   23.    On 28 November 1986, the Department of Trade and Industry (the DTI) appointed Inspectors to enquire into the Guinness acquisition of Distillers under sections 432 and 442 of the Companies Act 1985.   The enquiry, which commenced on 1 December 1986, involved investigation into the allegations that Guinness had offered secret indemnities and success fees to certain purchasers of Guinness stock.   The alleged effect of those purchases was artificially to inflate or maintain the Guinness share price, with the intention of inducing Distillers shareholders to assent to the Guinness bid.   24. On 10 December 1986, the Inspectors began taking oral evidence. Mr. Seelig, a director of the merchant bank advisers to Guinness, was the first witness.   25.    On 12 January 1987, the DTI Inspectors notified the Secretary of State of matters which they thought should be brought to his attention. A note dated 13 January 1987 from the DTI Solicitor recorded the existence of certain evidence in the hands of the Inspectors indicating the possibility that criminal offences had been committed.   26.    On 12 January 1987, the DTI contacted Mr. John Wood at the Director of Public Prosecutions' office (DPP). It was decided that the proper thing to do was to let the Inspectors carry on with their enquiry and to pass the transcripts on to the Crown Prosecution Service (CPS) which had come into being in September 1986.   27.    On 14 January 1987, the applicant was dismissed from Guinness.   28.    On 29 January 1987, the Secretary of State required the Inspectors to inform him of any matters coming to their knowledge as a result of their investigation pursuant to section 437(1A) of the Companies Act 1985.   Thereafter the Inspectors passed on to the Secretary of State transcripts of their hearings and other documentary material which came into their possession.   29.    On 30 January 1987, a meeting was held attended by the Inspectors, the Solicitor and other officials of the DTI, Mr. John Wood and a representative from the CPS.   30.    On 5 February 1987, Mr. John Wood, who had been appointed head of legal services at the CPS, appointed a team of counsel to advise on the criminal aspects of the investigation. Transcripts and documents from the Inspectors were passed on to the team after receipt and consideration by the DTI.   31.    The applicant was interviewed by the Inspectors on nine occasions: on 10, 11, 20 and 26 February, 4-5 March, 6 May, and 11-12 June 1987. At these interviews the applicant was accompanied by his legal representatives.   32.    On or about a date between 1 and 5 May 1987, the police were formally asked by the DPP's office to carry out an investigation. The transcripts and documents obtained as a result of the Inspectors' interviews were passed on to the police from about the start of May 1987.   33.    On 6 May 1987, the applicant was arrested by the police. In his evidence at the applicant's trial, the police officer in charge of the investigation explained that he had learned that the applicant had dual nationality, had or was about to sell his house in England and was resident in Switzerland where he was then living. He therefore was concerned that the applicant might abscond on learning that a criminal investigation had started.   34.    On 7 May 1987, the applicant was charged with three offences concerning the destruction of documents.   35.    On 13 October 1987, the applicant was charged with 37 offences. A further two charges were added on 11 July 1988.   36.    The applicant and his co-defendants were arraigned before the Crown Court on 27 April 1989. Each defendant pleaded not guilty to the counts on the indictment.   37.    On 21 September 1989, two separate trials were ordered by the trial judge in the Crown Court, Mr. Justice Henry, in view of the large number of counts and the number of defendants (7).   38.    From 6 to 16 November 1989, the court held a voir dire following the application of one of the applicant's co-defendants, Mr. Parnes, to rule the DTI transcripts inadmissible. Parnes argued, principally, that the statements obtained during three interviews before the Inspectors should be excluded: i. pursuant to section 76 of the Police and Criminal Evidence Act 1984 (PACE) on the basis that they had been obtained by oppression or in circumstances which were likely to render them unreliable; ii. pursuant to section 78 of PACE because of the adverse effect the admission of the evidence would have on the fairness of the proceedings having regard to the circumstances in which it was obtained.   39.    In a ruling given on 21 November 1989, Mr. Justice Henry held that the transcripts were admissible.   He found that as a matter of construction of the relevant statute Inspectors could ask witnesses questions that tended to incriminate them, the witnesses were under a duty to   answer such questions and the answers were admissible in criminal proceedings. He rejected Parnes' assertion that the Inspectors should have given a warning against self-incrimination. He was satisfied that there was no element of oppression involved in the obtaining of the evidence and that the answers were not obtained in consequence of anything said or done which was likely to render them unreliable in all the circumstances existing at the time.   40.    From 22 to 24 January 1990, the court held a voir dire following the application of the applicant to rule inadmissible the DTI transcripts on the basis that they should be excluded either as unreliable under section 76 of PACE   or pursuant to section 78 of PACE because of the adverse effect the admission of the evidence would have on the fairness of the proceedings having regard to the circumstances in which it was obtained. Reliance was placed on the applicant's alleged ill-health at the time and on the fact that two interviews had taken place after the applicant had been charged.   41.    In his ruling of 29 January 1990, Mr. Justice Henry rejected the defence argument as to the applicant's medical condition.   He did however exercise his discretion pursuant to section 78 to exclude the evidence from the two post-charge interviews on the grounds that the applicant's attendance could not be said to be voluntary, and it could not be said to be fair to use material obtained by compulsory interrogation after the commencement of the accusatorial process.   42.    The jury for the applicant's trial was empanelled on 16 February 1990. These proceedings involved the applicant and three co-defendants.   The applicant faced 15 counts including, inter alia, 8 counts of false accounting contrary to section 17(1)b of the Theft Act 1968, 2 counts of theft and 2 counts of conspiracy to contravene section 13(1)(a)i of the Prevention of Fraud (Investments) Act 1958.   43.    During the trial, the prosecution referred to the statements made by the applicant in the course of interviews to the DTI Inspectors in order to establish the state of the applicant's knowledge and to refute evidence given by the applicant to the jury. In his summing-up to the jury, the judge also compared and contrasted what the applicant had said in court with the answers which he had given to the Inspectors.   44.    On 22 August 1990, the applicant was convicted of 12 counts. On 28 August 1990, he received an overall prison sentence of five years.   45.    In the second set of proceedings concerning the other co- defendants, further challenge was made to the admissibility of the DTI transcripts on the ground, inter alia, that there was an abuse of process in that there was misconduct by the Inspectors and/or the prosecuting authorities in the use of the Inspectors' statutory powers for the purpose of constructing a criminal case. It was alleged by one of the co-defendants, Mr. Seelig, that there was a deliberate delay in charging the accused in order that the Inspectors could use their powers to obtain confessions.   In support of this application, Mr. Seelig also sought by way of witness summons discovery of documents and correspondence between the DTI, the Inspectors, the CPS and the police, including the minutes of the meeting of 30 January 1987.   46.    In a ruling given on 10 December 1990, Mr. Justice Henry refused the application by way of witness summons to compel discovery of documents alleged to reveal this abuse, finding that there was no prima facie case of abuse by either the Inspectors or the prosecuting authorities. He had heard evidence from both the Inspectors and the police officer in charge of the criminal investigation. In a ruling given on 14 December 1990, the judge rejected the application for a stay, finding that there had been no abuse of the criminal process in the questioning of the defendants or in the passing of the depositions to the prosecuting authorities or in their conduct of the prosecution. He saw nothing improper or sinister in the decision by Mr. Wood not to involve the police until the beginning of May. He concluded rather that proper use had been made of the statutory powers. The judge also refused an application to exclude the evidence of the DTI interviews under section 78 of PACE as constituting evidence which had such an adverse effect on the fairness of the proceedings that the court ought not to admit it.   47.    On appeal by Mr. Seelig, the Court of Appeal in a judgment dated 2 May 1991 upheld the trial judge's ruling as to the admissibility of the DTI interviews.   48.    The applicant applied for leave to appeal against conviction and sentence.   He argued, inter alia, that the trial judge had misdirected the jury as to the meaning and effect of section 151 of the Companies Act 1985, and that he had misdirected the jury as to the weight to be given to the evidence given by R., the finance director of Guinness who had been given immunity from prosecution.   49.    The applicant was granted leave to appeal against conviction. Following a hearing at which the applicant was represented, the Court of Appeal gave its judgment on 16 May 1991.   It held that while there were some blemishes and infelicities in the judge's summing-up, it was in the main a masterly exposition, which left the main issue of dishonesty to the jury.   It commented that the applicant's counsel had expressed the possibility that he might wish to address the court as to the admissibility of the DTI transcripts.   It stated however that the question had been decided, as far as it was concerned, by the decision given by another division of the Court of Appeal in the case of R. v. Seelig, which had held that such statements were admissible. It went on to reject the applicant's appeal on all but one count: it found that the judge had erred in his direction on count 14 and quashed that conviction.   It reduced his sentence to two and a half years' imprisonment.   50.    On 24 July 1991, the House of Lords refused leave to appeal from the Court of Appeal ruling in the Seelig case concerning the admissibility of the DTI transcripts.   B.     Relevant domestic law and practice   Appointment of inspectors   51.    By section 432 of the Companies Act 1985 (the 1985 Act) the Secretary of State may appoint one or more competent inspectors to investigate the affairs of a company and to report on them in such manner as he may direct.   The Secretary of State may make such appointment if it appears that there are circumstances suggesting:         "(a) that the Company's affairs are being or have been conducted            with intent to defraud its creditors or the creditors of            any other person, or otherwise for a fraudulent or unlawful            purpose, or in a manner which is unfairly prejudicial to            some part of its members, or         (b)   that any actual or proposed act or omission of the company            (including an act or omission on its behalf) is or would be            so prejudicial, or that the company was formed for any            fraudulent or unlawful purpose, or         (c)   that persons concerned with the company's formation or the            management of its affairs have in connection therewith been            guilty of fraud, misfeasance or other misconduct towards it            or towards its members, or         (d)   that the company's members have not been given all the            information with respect to its affairs which they might            reasonably expect." (Section 432(2))   52.    The Secretary of State is also empowered to appoint inspectors to:         "... investigate and report on the membership of any company, and       otherwise with respect to the company, for the purpose of       determining the true persons who are or have been financially       interested in the success or failure (real or apparent) of the       company or able to control or materially to influence its       policy." (Section 442(1))   Function and powers of inspectors   53.    The function of inspectors is an inquisitorial and not a judicial function.   It has been summarised, in a case which has been incorporated as an appendix to the DTI Investigation Handbook, as follows:         "The Inspectors' function is in essence to conduct an       investigation designed to discover whether there are facts which       may result in others taking action; it is no part of their       function to take a decision as to whether action be taken and a       fortiori it is not for them finally to determine such issues as       may emerge if some action eventuates." (In re Pergamom Press Ltd       [1971] Ch 388 per Sachs LJ at p. 401).   54.    Section 434 of the 1985 Act provides:         "(1) When inspectors are appointed under Section 431 or 432, it            is the duty of all officers and agents of the company ...              (a)    to produce to the inspectors all books and documents                  of or relating to the company ... which are in their                  custody or power,              (b)    to attend before the inspectors when required to do so                  and,              (c)    otherwise to give the inspectors all assistance in                  connection with the investigation which they are                  reasonably able to give...         (3)   An inspector may examine on oath the officers and agents of            the company or other body corporate, and any such person as            is mentioned in subsection (2), in relation to the affairs            of the company or other body, and may administer an oath            accordingly...         (5)   An answer given by a person to a question put to him in            exercise of powers conferred by this section (whether it            has effect in relation to an investigation under any of            sections 431 to 433, or as applied by any other section in            this Part) may be used in evidence against him."   55.    Section 436 of the Act provides:         "(1) When inspectors are appointed under section 431 or 432 to            investigate the affairs of a company, the following applies            in the case of -              (a)    any officer or agent of the company,              (b)    any officer or agent of another body corporate whose                  affairs are investigated under section 433 and              (c)    any such person as is mentioned in section 434(2).              Section 434(4) applies with regard to references in this            sub-section to an officer or agent.         (2)   If that person -              (a)    refuses to produce any book or document which it is                  his duty under section 434 or 435 to produce, or              (b)    refuses to attend before the inspectors when required                  to do so, or              (c)    refuses to answer any question put to him by the                  inspectors with respect to the affairs of the company                  or other body corporate (as the case may be) the                  inspectors may certify the refusal in writing to the                  court.         (3)   The court may thereupon enquire into the case, and, after            hearing any witnesses who may be produced against or on            behalf of the alleged offender and after hearing any            statement which may be offered in defence, the court may            punish the offender in like manner as if he had been guilty            of contempt of the court."   56.    Contempt of court in this context may be punished by the imposition of a fine or by committal to prison for a period not exceeding two years.   Provisions of the Police and Criminal Evidence Act 1984   57.    Section 76 of the Police and Criminal Evidence Act 1984 (PACE) provides as relevant:         "1. In any proceedings a confession made by an accused person may       be given in evidence against him in so far as it is relevant to       any matter in issue in the proceedings and is not excluded by the       court in pursuance of this section.         2. If, in any proceedings where the prosecution proposes to give       in evidence a confession made by an accused person, it is       represented to the court that the confession was or may have been       obtained-              (a) by oppression of the person who made it; or            (b) in consequence of anything said or done which was            likely, in the circumstances existing at the time, to            render unreliable any confession which might be made by him            in consequence thereof,         the court shall not allow the confession to be given in evidence       against him except in so far as the prosecution proves to the       court beyond a reasonable doubt that the confession       (notwithstanding that it might be true) was not obtained as       aforesaid..."   58.    Section 78 provides as relevant:         "1. In any proceedings the court may refuse to allow the evidence       on which the prosecution proposes to rely to be given if it       appears to the court that, having regard to all the       circumstances, including the circumstances in which the evidence       was obtained, the admission of the evidence would have such an       adverse effect on the fairness of the proceedings that the court       ought not to admit it."   III.   OPINION OF THE COMMISSION   A.     Complaint declared admissible   59.    The Commission has declared admissible the applicant's complaint that he has been deprived of a fair hearing as a result of the use at his trial of incriminating statements obtained from him by the DTI Inspectors in exercise of their statutory powers of compulsion.   B.     Point at issue   60.    The issue to be determined is whether there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention.   C.     Article 6 para. 1 (Art. 6-1) of the Convention   61.    Article 6 para. 1 (Art. 6-1) of the Convention provides as relevant:         "In the determination of ...any criminal charge against him,       everyone is entitled to a fair and public hearing within a       reasonable time by an independent and impartial tribunal       established by law..."   62.    The applicant contends that the use of the DTI interviews, which were obtained under compulsory powers, as evidence against him in his trial deprived him of a fair hearing under this provision. He submits in addition that the prosecuting authorities deliberately delayed the commencement of the police investigation in order that statements incriminating him could be gathered for use in the subsequent criminal proceedings.   63.    The applicant argues that Article 6 (Art. 6) includes the requirement that a defendant is entitled to exercise the right not to incriminate himself. Since the statements which he made under compulsion to the DTI Inspectors were used as a significant part of the evidence against him at his trial, he was deprived of the privilege against self-incrimination and the fairness of the proceedings was seriously affected. Further, there is no justification in removing the protection against self-incrimination from persons in the position of the applicant, while it remains for all other categories of offenders, including those interviewed by the Serious Fraud Office in the exercise of its statutory powers.   64.    The Government submit that the DTI Inspectors' investigation was separate from the criminal prosecution, their function being inquisitorial and to establish the facts, which may result in others taking action. The person being questioned is protected from oppression and abuse, in particular, the applicant was accompanied by his legal advisers during the questioning; the Inspectors gave a general indication in advance of the matters in issue; after each session the applicant was provided with a transcript and given the opportunity to correct or augment his evidence (which he availed himself of frequently); and account was taken of the applicant's health problems in fixing dates. In addition the courts have power to exclude from use at trial any statements obtained by oppression or in circumstances which render them unreliable or which would have an adverse effect on the fairness of the proceedings (eg. sections 76 and 78 of PACE - see Relevant domestic law and practice paras. 57-58). In the Government's submission, the applicant was not obliged to give evidence at his trial and it is not correct for the applicant to allege that he was under pressure to go into the witness box to explain what he had said to the Inspectors. In his counsel's opening to the jury, it was stated that the reason for the applicant giving evidence was to show that he could "take the medicine which he saw (his counsel) hand out to some of the prosecution witnesses."   65.    The Government submit in light of the above that the use of the evidence taken by the Inspectors did not render the trial unfair. They argue that the "right to silence" or the privilege against self- incrimination is not absolute and that any   departure from it is justified in the present case having regard, inter alia, to the special status of persons conducting the affairs of public companies who enjoy a fiduciary position towards the public to which they have a responsibility of accounting for their stewardship.   66.    As regards the applicant's allegations of deliberate delay on the part of the prosecuting authorities, the Government submit that there is no appearance or trace of such impropriety. They refer to the findings of Mr. Justice Henry with regard to the lack of any abuse of process and state that the delay in launching the police investigation pursued the legitimate purpose of allowing a clear picture to emerge in an extremely complicated affair   in order that the prosecution might obtain a better overall understanding of it before deciding what lines of enquiry to pursue.   67.    The Commission recalls that as a general rule questions concerning evidence are for the national courts to determine. Article 6 (Art. 6) does not lay down any rules on the admissibility of evidence as such, which is therefore primarily a matter for regulation under domestic law (see eg. Eur. Court H.R., Schenk judgment of 12 July 1988, Series A no. 140 p. 29, para. 46). The Commission must however determine whether the proceedings considered as a whole, including the way in which the prosecution obtained and used evidence, were fair as required by Article 6 para. 1 (Art. 6-1) of the Convention. In this context, the Commission recalls that the Convention is intended to guarantee rights which are not theoretical or illusory but rights that are practical and effective; this is of particular relevance to the rights of the defence given the prominent place held in a democratic society by the right to a fair trial (see eg. Eur. Court H.R., Artico judgment of 13 May 1980, Series A no. 37 p. 16, para. 33).   68.    In the case of Funke (Eur. Court H.R., Funke judgment of 25 February 1993, Series A no. 256A p. 22, para. 44), the Court found a violation of Article 6 para. 1 (Art. 6-1) in that the applicant had been prosecuted and convicted for refusing to disclose documents on the application by the customs authorities:         "The Court notes that the customs secured Mr. Funke's conviction       in order to obtain certain documents which they believed must       exist, although they were not certain of the fact. Being unable       or unwilling to procure them by some other means, they attempted       to compel the applicant himself to provide the evidence of       offences which he had allegedly committed. The special features       of customs law (see paragraphs 30-31) cannot justify such an       infringement of the right of anyone `charged with a criminal       offence', within the meaning of this expression in Article 6       (Art. 6), to remain silent and not to contribute to incriminating       himself."   69.    The Court appears in the above passage to find that the right to silence and privilege against self-incrimination are an inherent part of the protection given to an accused under Article 6 para. 1 (Art. 6-1). The Government argue that the Funke case is not strictly relevant to the present case since Funke concerned punishment of an applicant for refusing to incriminate himself whereas the present applicant co-operated with the Inspectors without incurring any penalty. However the Commission does not consider that the Court's statement can be restricted as narrowly, since on its face it refers to "anyone `charged with a criminal offence'". It also seems to the Commission that   an applicant who incriminates himself under threat of punishment (see paras. 55-56) and provides evidence for use against himself at his trial may be as seriously prejudiced, perhaps more so, as the applicant who incurs the punishment for refusing to incriminate himself.   70.    The Commission observes that the right to silence is not expressly guaranteed by Article 6 (Art. 6) of the Convention and accepts that the right may not be unqualified. The Government seek to confine the ambit of any "right to silence" under Article 6 para. 1 (Art. 6-1) by   analogy with the principles elaborated by the Court in respect of the right of access to court which is implicit in Article 6 (Art. 6): namely, that any such right cannot be absolute but will be subject to those implied limitations which   comply with the requirements of not impairing the very essence of a fair hearing, serve a legitimate aim and are proportionate to the aim sought to be achieved (see mutatis mutandis Eur. Court H.R.,   Golder judgment of 17 May 1975, Series A no. 18 p. 19, para. 38 and Ashingdane judgment of 28 May 1985, Series A no. 93, p. 24, para. 57). These requirements are, they submit, satisfied on the facts of the present case in view of the procedural safeguards against abuse (see para. 64 above) and the special considerations applying to company directors in positions of fiduciary responsibility towards the public.   71.    The Commission does not consider however that the above criteria can be transferred automatically from case-law on the implied right of access to court - which generally is concerned with problems arising in the sphere of "civil rights and obligations" - to the general concept of "fairness" which is expressly contained in Article 6 para. 1 (Art. 6-1). It cannot be compatible with the spirit of the Convention that varying degrees of fairness apply to different categories of accused in criminal trials. The right of silence, to the extent that it may be contained in the guarantees of Article 6 (Art. 6), must apply as equally to alleged company fraudsters as to those accused of other types of fraud, rape, murder or terrorist offences. Further, there can be no legitimate aim in depriving someone of the guarantees necessary in securing a fair trial.   72.    In the Commission's opinion, the privilege against self- incrimination is an important element in safeguarding an accused from oppression and coercion during criminal proceedings. The very basis of a fair trial presupposes that the accused is afforded the opportunity of defending himself against the charges brought against him. The position of the defence is undermined if the accused is under compulsion, or has been compelled,   to incriminate himself. The privilege against self-incrimination is also closely allied to the principle of presumption of innocence protected in Article 6 para. 2 (Art. 6-2) of the Convention in that it reflects the expectation that the State bear the general burden of establishing the guilt of an accused, in which process the accused is entitled not to be required to furnish any involuntary assistance by way of confession.   73.    Whether a particular applicant has been subject to compulsion to incriminate himself and whether the use made of the incriminating material has rendered criminal proceedings unfair will depend on an assessment of the circumstances of each case as a whole.   74.    In the present case, the Commission notes that the applicant was required by law to answer the questions put to him by the DTI Inspectors in the course of their investigation, whether or not they tended to incriminate him. A refusal to answer could have been punished, on reference to the court, by a penalty of up to two years' imprisonment or by a fine.   On application by the applicant to the trial judge to exclude the statements as evidence at his trial, 2 of the 9 transcripts of the interviews were ruled inadmissible on the basis that they had been obtained after the applicant had been charged. The judge found that these statements could not be said to be voluntary and that it could not be fair to use material obtained by compulsory interrogation after the commencement of the accusatorial process. The remaining statements were admissible in evidence against the applicant at his trial whether or not he chose to give evidence himself. It was accepted by the Government that the applicant's evidence to the Inspectors constituted a significant element of the prosecution case against the applicant. During the trial, the prosecution used the other transcripts of the DTI interviews to establish the state of the applicant's knowledge and to point out the inconsistencies in the applicant's oral evidence. The judge also made reference in summing-up to the jury to the contradictions between the applicant's evidence to the Inspectors and to the court.   75.    The Commission finds that the applicant was in effect compelled to incriminate himself and that the incriminating material furnished a not insignificant part of the evidence against him at his trial. While the Government contest that the reason for the applicant deciding to give evidence was the necessity for him to counter the evidence of the DTI interviews, the Commission notes that on the Government's own submissions it is not denied that, though the real value of the transcripts was in cross-examination (pointing out inconsistencies in the applicant's explanations), the evidence contained admissions in itself. In these circumstances, the Commission considers this must have exerted additional pressure on the applicant to take the witness stand rather than exercise his right to remain silent at the trial and leave it to the prosecution to prove its case.   76.    In light of the above, the Commission finds that the use at the applicant's trial of incriminating evidence obtained from him under compulsory powers was oppressive and substantially impaired his ability to defend himself against the criminal charges facing him. He was therefore deprived of a fair hearing within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention. Given this conclusion the Commission finds it unnecessary to decide whether in addition the prosecuting authorities' delay in instituting the police investigation was improperly motivated by the desire to gather incriminating evidence from the DTI investigation for use at the applicant's trial.   CONCLUSION   77.    The Commission concludes, by 14 votes to 1, that there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention.   Secretary to the Commission             President of the Commission         (H.C. KRÜGER)                          (C.A. NØRGAARD)                     CONCURRING OPINION OF MR. LOUCAIDES         I agree with the conclusion of the majority that in this case there has been a violation of Article 6 para. 1 of the Convention for the reasons set out in para. 76 of the Report, but I would like to add the following:         In my view this case concerns more directly the right to remain silent and not to be compelled t