CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 9 avril 1997

.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 }                          AS TO THE ADMISSIBILITY OF       Application No. 29522/95                      Application No. 30056/96 by I.J.L.                               by G.M.R. against the United Kingdom              against the United Kingdom                           Application No. 30574/96                       by A.K.P.                       against the United Kingdom          The European Commission of Human Rights (First Chamber) sitting in private on 9 April 1997, the following members being present:              Mrs.   J. LIDDY, President            MM.    M.P. PELLONPÄÄ                  E. BUSUTTIL                  A. WEITZEL                  C.L. ROZAKIS                  L. LOUCAIDES                  B. MARXER                  B. CONFORTI                  I. BÉKÉS                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL                  M. VILA AMIGÓ            Mrs.   M. HION            Mr.    R. NICOLINI              Mrs.   M.F. BUQUICCHIO, Secretary to the Chamber        Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;        Having regard to Application No. 29522/95, introduced on 30 November 1995 by I.J.L. against the United Kingdom and registered on 12 December 1995; Application No. 30056/96 introduced on 18 December 1995 by G.M.R. against the United Kingdom and registered on 5 February 1996 and Application No. 30574/96 introduced on 8 December 1995 by A.K.P. against the United Kingdom and registered on 25 March 1996;        Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;        Having deliberated;        Decides as follows: THE FACTS        The three applicants are British citizens born in 1916, 1939 and 1945, respectively.        The first applicant is a former company director and financier and resides in Switzerland. He is represented by Stephenson Harwood, London, and by Mr. J.P. Gardner, a solicitor practising in London.        The second applicant is a company director and resides in London. He is represented by Mishcon de Reya, London, and by Mr. J.P. Gardner.        The third applicant is a former stockbroker and resides in London. He is represented by Peters & Peters, London, and by Mr. J.P. Gardner.        The facts, as submitted by the applicants, are closely related to the facts of the Saunders case (Eur. Court HR, Saunders v. the United Kingdom judgment of 17 December 1996, to be published in Reports 1996) and may be summarised as follows.   A.    Particular circumstances of the case   a.    Factual background leading to the appointment of Inspectors        In early 1986 Guinness was competing with another public company, Argyll Group PLC ("Argyll"), to take over a third public company, the Distillers Company PLC ("Distillers"). The take-over battle resulted in victory for Guinness. Guinness' offer to the Distillers' shareholders, like Argyll's, included a substantial share exchange element, and accordingly the respective prices at which Guinness and Argyll shares were quoted on the stock exchange was a critical factor for both sides. During the course of the bid the Guinness share price rose dramatically, but once the bid had been declared unconditional it fell significantly.        The substantial increase in the quoted Guinness share price during the bid was achieved as a result of an unlawful share support operation. This involved certain persons ("supporters") purchasing Guinness shares in order to maintain, or inflate, its quoted share price. Supporters were offered secret indemnities against any losses they might incur, and, in some cases, also large success fees, if the Guinness bid was successful. Such inducements were unlawful (1) because they were not disclosed to the market under the City Code on Take-overs and Mergers and (2) because they were paid out of Guinness' own monies in breach of section 151 of the Companies Act 1985 ("the 1985 Act"), which prohibits a company from giving financial assistance for the purpose of the acquisition of its own shares.        Supporters who had purchased shares under the unlawful share support operation were indemnified and rewarded. In addition, some of those who had helped find supporters were rewarded by the payment of large fees. These too came from Guinness' funds. In most cases payments were made using false invoices which concealed the fact that payment was being made in respect of the supporters or other recipients' participation in the unlawful share support operation.      Allegations and rumours of misconduct during the course of the bid led the Secretary of State for Trade and Industry to appoint Inspectors some months after the events pursuant to sections 432 and 442 of the 1985 Act (see infra, Relevant domestic law under a.). The Inspectors were empowered to investigate the affairs of Guinness.   b.    The Inspectors' investigation        On 10 December 1986, the Inspectors began taking oral evidence. Mr. Seelig, a director of the merchant bank advisers to Guinness, was the first witness.        On 12 January 1987, the Inspectors informed the Department of Trade and Industry ("DTI") that there was concrete evidence of criminal offences having been committed. On the same date the DTI contacted Mr. John Wood of the Director of Public Prosecutions' office ("DPP"). It was decided that the proper thing to do was to permit the Inspectors to carry on with their enquiry and to pass the transcripts on to the Crown Prosecution Service ("CPS") which had come into being in September 1986.        On 14 January 1987, the Chairman of Guinness, Mr. Saunders, was dismissed from the company.        On 29 January 1987, the Secretary of State required the Inspectors to inform him of any matters coming to their knowledge as a result of their investigation pursuant to section 437(1A) of the 1985 Act. Thereafter the Inspectors passed on to the Secretary of State transcripts of their hearings and other documentary material which came into their possession.        On 30 January 1987, a meeting was held attended by the Inspectors, the Solicitor to and other officials of the DTI, Mr. John Wood and a representative from the CPS. Amongst other matters, potential accused were identified, possible charges were discussed and it was stated that a decision had to be made as to when to start a criminal investigation. All concerned agreed on the need to work closely together in preparing the way for bringing charges as soon as possible. The Inspectors indicated their readiness to cooperate although they reserved the right to conduct their investigations as they thought right.        On 5 February 1987 Mr. John Wood, who had been appointed head of legal services at the CPS, appointed a team of counsel to advise on the criminal aspects of the investigation. Transcripts and documents from the Inspectors were passed on to the team after receipt and consideration by the DTI.        The first applicant was interviewed by the Inspectors on five occasions: on 29 January, 12 February, 11 March, 16 March and 10 April 1987.        The second applicant was interviewed by the Inspectors on two occasions: on 14 January and 2 September 1987.        The third applicant was interviewed by the Inspectors on 22 and 27 January 1987. He was accompanied by his solicitor throughout these interviews. He was further interviewed by the Inspectors on 26 May 1987.        After having informed the Inspectors of the particulars of his travel plans and having confirmed his availability through his solicitors or in person should it be required, the third applicant left for the United States of America, where he arrived on 30 September 1987. He was immediately arrested and detained on grounds of an extradition request by the United Kingdom to the United States. He returned voluntarily to the United Kingdom on 23 March 1988.   c.    The criminal proceedings        During the first week of May 1987 the police were formally asked by the DPP's office to carry out a criminal investigation. The transcripts and documents obtained as a result of the Inspectors' interviews were then passed on to the police.        In the beginning of May 1987, Mr. Saunders was charged with numerous offences relating to the illegal share support operation.        About one month later, the DPP instructed the police to carry out an investigation into the wider aspects of the Guinness takeover.        On 8 October 1987, the first applicant was charged with nine offences relating to invoices he had caused to be submitted for advice he had given during the bid. These invoices had been submitted after the successful outcome of the Guinness bid.        On 13 October 1987, the second applicant was charged with eight offences relating to invoices which two companies, being wholly owned subsidiaries of the company of which the second applicant was director, had submitted for the loss on the sale of Guinness shares and for the success fee paid after the successful outcome of the Guinness bid.        After his return from the United States of America, the third applicant was charged with six offences relating to two invoices and the success fees which had been charged to Guinness following this company's takeover of Distillers.        In total, seven persons were charged with offences in connection with the Guinness takeover. All seven defendants together were arraigned before the Crown Court on 27 April 1989.        In view of the large number of counsel and the number of defendants two separate trials were subsequently ordered by the trial judge in the Crown Court on 21 September 1989. The applicants and Mr. Saunders were to be tried together in a first set of proceedings and the remaining three co-defendants in a separate set of proceedings.        From 6-16 November 1989 the court held a voir dire (submissions on a point of law in the absence of the jury) following the application of the third applicant to rule the DTI transcripts inadmissible. He argued, principally, that the statements obtained during three interviews before the Inspectors should be excluded:        i.     pursuant to section 76 of the Police and Criminal Evidence      Act 1984 ("PACE") on the basis that they had been obtained by      oppression or in circumstances which were likely to render them      unreliable;        ii.    pursuant to section 78 of PACE because of the adverse      effect the admission of the evidence would have on the fairness      of the proceedings having regard to the circumstances in which      it was obtained.        In a ruling given on 21 November 1989, the trial judge (Mr. Justice Henry) held that the transcripts were admissible. He stated that it was common ground that the interviews were capable of being "confessions" as defined in section 82 (1) of PACE. He found that as a matter of construction of the 1985 Act Inspectors could ask witnesses questions that tended to incriminate them, the witnesses were under a duty to answer such questions and the answers were admissible in criminal proceedings. He rejected the third applicant's assertion that the Inspectors should have given a warning against self- incrimination. He was satisfied that there was no element of oppression involved in the obtaining of the evidence and that the answers were not obtained in consequence of anything said or done which was likely to render them unreliable in all the circumstances existing at the time.        From 22 to 24 January 1990 the court held a further voir dire following the application of Mr. Saunders to rule inadmissible the DTI transcripts concerning the eighth and ninth interviews with him on the basis that they should be excluded either as unreliable under section 76 of PACE or pursuant to section 78 of PACE because of the adverse effect the admission of the evidence would have on the fairness of the proceedings having regard to the circumstances in which it was obtained. Reliance was placed on Mr. Saunders' alleged ill-health at the time and on the fact that the two interviews in question had taken place after he had been charged.        In his ruling of 29 January 1990 Mr. Justice Henry rejected the defence argument as to Mr. Saunders' medical condition. He did, however, exercise his discretion pursuant to section 78 to exclude the evidence from the two above-mentioned interviews which had taken place after Mr. Saunders had been charged on the grounds that the latter's attendance could not be said to be voluntary. In his view, moreover, it could not be said to be fair to use material obtained by compulsory interrogation after the commencement of the accusatorial process.   d.    The applicants' trial        The applicants were tried together with Mr. Saunders. The trial opened on 16 February 1990 and involved seventy-five days of evidence, ten days of speeches by counsel and a five-day summing up to the jury by the trial judge.        In the course of the trial, Mr. Saunders was the only accused to give evidence. A large part of the evidence against the applicants consisted of evidence gathered by the DTI Inspectors. In the course of the proceedings evidence was further taken from the former finance director of Guinness, Mr. Roux, who had been granted immunity from prosecution. The prosecution also referred to the statements made by the applicants in the course of their interviews by the DTI Inspectors.        The transcripts of the interviews were read to the jury by the prosecution over a three-day period during the trial (days 45-47). They were used in order to establish the state of the applicants' knowledge.        In his summing-up to the jury, the judge referred, inter alia, to the answers which the applicants had given to the DTI Inspectors.        On 22 August 1990, the first applicant was convicted of two counts of conspiracy, three counts of false accounting and one count of theft. He was fined £3,000,000 with a total of five years' imprisonment in default. He was also ordered to contribute £440,000 towards the prosecution's costs.        The second applicant was convicted of one count of conspiracy, two counts of false accounting and one count of theft. He received an overall prison sentence of 12 months and was fined £5,000,000 with a 4 years' consecutive prison sentence in default. He was also ordered to contribute £440,000 towards the prosecution's costs.        The third applicant was convicted of four counts of false accounting and two counts of theft. He received an overall prison sentence of 21/2 years. He was also ordered to contribute £440,000 towards the prosecution's costs.        Mr. Saunders was convicted of 12 counts in respect of conspiracy, false accounting and theft. He received an overall prison sentence of 5 years.   e.    Ruling on 'abuse of process' claims        In the second set of proceedings concerning the other co- defendants, further challenge was made to the admissibility of the transcripts of the interviews on the ground, inter alia, that there was an abuse of process in that there was misconduct by the Inspectors and/or the prosecuting authorities in the use of the Inspectors' statutory powers for the purpose of constructing a criminal case. In particular, it was alleged by one of the co-defendants, Mr. Seelig, that there was a deliberate delay in charging the accused in order that the Inspectors could use their powers to obtain confessions.        In a ruling given on 10 December 1990, Mr. Justice Henry found that there was no prima facie case of abuse by either the Inspectors or the prosecuting authorities. He had heard evidence from both the Inspectors and the police officer in charge of the criminal investigation. In a ruling given on 14 December 1990, the judge rejected the application for a stay, finding that there had been no abuse of the criminal process in the questioning of the defendants or in the passing of Mr. Seelig's depositions to the Inspectors to the prosecuting authorities or in their conduct of the prosecution. He saw nothing improper or sinister in the decision by Mr. Wood not to involve the police until the beginning of May. He concluded rather that proper use had been made of the statutory powers. The judge also refused an application to exclude the evidence of the interviews under section 78 of PACE as constituting evidence which had such an adverse effect on the fairness of the proceedings that the court ought not to admit it.        On appeal the Court of Appeal in a judgment dated 2 May 1991 (R. v. Seelig) upheld the trial judge's ruling as to the admissibility of the interviews before the Inspectors. On 24 July 1991 leave to appeal was refused by the House of Lords.   f.    The applicants' appeal        All applicants applied for leave to appeal against conviction and sentence.   However, on 18 December 1990, the first applicant withdrew his appeal on grounds of his precarious state of health. On 20 March 1991, the first applicant's knighthood was annulled.        The second and third applicants, like Mr. Saunders, were granted leave to appeal against conviction. Following a hearing, the Court of Appeal gave its judgment on 16 May 1991. It held, inter alia, that while there were some blemishes and infelicities in the judge's summing-up, it was in the main a masterly exposition. As regards the admissibility of the transcripts, it was held that the question had been decided, as far as it was concerned, by the decision given by another division of the Court of Appeal in the case of R. v. Seelig, which had held that such statements were admissible.        Mr. Saunders' appeal was rejected on all but one count. The Court of Appeal found that the judge had erred in his direction on one count and quashed that conviction. It reduced his sentence to 21/2 years' imprisonment.        The second applicant's appeal resulted in a moderation of his sentence in that the period to be served in default of payment of his fine was reduced and the time within which he was to pay the fine was extended.        The third applicant's appeal resulted in a reduction of his sentence to 21 months' imprisonment.        The orders for costs made against the second and third applicants were reduced to £300,000 each. A similar order was made by the Court of Appeal in favour of the first applicant.   g.    Subsequent reference to the Court of Appeal by the Home Secretary        On 22 December 1994 the Home Secretary referred the whole case of the applicants and Mr. Saunders to the Court of Appeal pursuant to section 17(1) of the Criminal Appeal Act 1968. He did so on the basis of requests by the applicants, who submitted that the prosecution had failed to disclose certain materials at their trial. That material showed that share support operations had been undertaken in relation to a number of other takeovers and had been considered to be acceptable practice by the professional advisers involved in them. The material also included the outcome of an investigation undertaken on the initiative of the DTI and concluded on 8 December 1988 by the Licensed Dealers' Tribunal (a former disciplinary body) which related to share support operations.        By judgment of 27 November 1995, the Court of Appeal rejected the first applicant's appeal on all but one count. It quashed the applicant's conviction of one of the conspiracy counts. The appeals by the second and third applicants and Mr. Saunders were dismissed.        The Court of Appeal subsequently refused to certify that the case involved a point of public importance and denied leave to appeal to the House of Lords. Following this decision no further avenue of appeal was open to the applicants.        In its judgment of 27 November 1995, the Court of Appeal rejected the argument that the use at trial of answers given to the DTI Inspectors automatically rendered the criminal proceedings unfair. It pointed out that Parliament had expressly and unambiguously provided in the 1985 Act that answers given to DTI Inspectors may be admitted in evidence in criminal proceedings even though such admittance might override the privilege against self-incrimination.        In its judgment the Court noted that the interviews with each of the accused "formed a significant part of the prosecution case".        With reference to the allegation that it was unfair that those interviewed by DTI Inspectors should be treated less favourably than those interviewed by the police under PACE, the Court noted as follows:        "... the unravelling of complex and devious transactions in those      fields is particularly difficult and those who enjoy the      immunities and privileges afforded by the Bankruptcy Laws and the      Companies Acts must accept the need for a regime of stringent      scrutiny especially where fraud is suspected..."        In relation to the argument that the difference between the Companies Act and the Criminal Justice Act regimes (see infra, Relevant domestic law under b. and c.) was anomalous the prosecution contended that:        "... the explanation lies in the very different regime of      interviews by DTI Inspectors compared with that of interviews      either by police or the SFO [Serious Fraud Office]. DTI      Inspectors are investigators; unlike the police or SFO they are      not prosecutors or potential prosecutors. Here, typically, the      two Inspectors were a Queen's Counsel and a senior accountant.      They are bound to act fairly, and to give anyone they propose to      condemn or criticize a fair opportunity to answer what is alleged      against them... Usually, the interviewee will be represented by      lawyers and he may be informed in advance of the points to be      raised."        The Court of Appeal held on this point:        "Whether or not these matters constitute a sufficient explanation      and whether or not the distinction is "an anomaly", the fact      remains that the distinction exists because Parliament has      created it. When enacting section 2(8) of the 1987 Act, it would      have been open to Parliament to have amended section 434(5) of      the Companies Act and other similar provisions so as to bring      them into line with section 2(8). Their decision not to do so was      no oversight. This is clear from the speech of Lord Caithness      during the passage of the 1987 Bill... He said the Government had      deliberately not followed in that Bill the precedent in the      Companies legislation on this very issue... Parliament has made      its intentions quite clear in section 434(5). It cannot be right      for a judge to exercise his discretion to exclude evidence of      interviews simply on the ground that Parliament ought not to have      countenanced the possibility of self-incrimination...      However,..., a judge can, in our view, as part of the background      setting, have in mind that under that [statutory] régime there      is an obligation to answer the Inspectors' questions on pain of      sanctions."        The court also rejected an allegation that there had been an abuse of process in that the DTI Inspectors were used wrongly as "evidence gatherers" for the prosecution or that there had been improper or unfair "collusion", as follows:        "We have carefully considered the effect of the events of      November 1986 to October 1987 in the light of all the documents.      We conclude that to allow the Inspectors to continue their      inquiry and to bring in the police only in May 1987 was a proper      course subject to two essentials:        (1)    That the Inspectors were left to conduct their inquiries      and interviews independently without instruction, briefing or      prompting by the prosecuting authority. We are quite satisfied      that the Inspectors themselves made that clear and abided by it.      Counsel also laid down those ground rules correctly and they were      observed...        (2)    That the interviews were conducted fairly and      unobjectionably. It was not suggested to the trial judge or      before us that the Inspectors could be criticised on this score.      These were carefully structured sessions of proper length in      suitable conditions. The appellants, experienced business men of      high intelligence, were each represented either by counsel      (usually Queen's Counsel) or a senior solicitor. The questions      were put scrupulously fairly and the Code laid down in the      Pergamon case ... was observed."        The Court also rejected the allegation that non-disclosure prior to the trial of the material alleged to indicate abuse caused any unfairness to the applicants. It further rejected the second applicant's complaint that there had been an improper delay in charging him.        The Court of Appeal rejected the applicants' complaint on the non-disclosure of certain material by the prosecution. It concluded on this point:        "In the case of all four appellants, whilst we have held that the      undisclosed material should have been disclosed, we are satisfied      that the procedural irregularity which occurred as a result of      non-disclosure in fact occasioned no prejudice to them. The      verdicts of the jury would inevitably have been the same had      disclosure been made."   B.    Relevant domestic law and practice   a.    Appointment of inspectors        By section 432 of the Companies Act 1985 (the "1985 Act") the Secretary of State may appoint one or more competent inspectors to investigate the affairs of a company and to report on them in such manner as he may direct. The Secretary of State may make such appointment if it appears that there are circumstances suggesting:        "(a)   that the Company's affairs are being or have been conducted      with intent to defraud its creditors or the creditors of any      other person, or otherwise for a fraudulent or unlawful purpose,      or in a manner which is unfairly prejudicial to some part of its      members, or        (b)    that any actual or proposed act or omission of the company      (including an act or omission on its behalf) is or would be so      prejudicial, or that the company was formed for any fraudulent      or unlawful purpose, or        (c)    that persons concerned with the company's formation or the      management of its affairs have in connection therewith been      guilty of fraud, misfeasance or other misconduct towards it or      towards its members, or        (d)    that the company's members have not been given all the      information with respect to its affairs which they might      reasonably expect." (Section 432(2))        The Secretary of State is also empowered to appoint inspectors to:      "... investigate and report on the membership of any company, and      otherwise with respect to the company, for the purpose of      determining the true persons who are or have been financially      interested in the success or failure (real or apparent) of the      company or able to control or materially to influence its      policy." (Section 442(1))   b.    Function and powers of inspectors        The function of inspectors is an inquisitorial and not a judicial function. It has been summarised in re Pergamon Press Ltd [1971] Chancery Reports 388, per Sachs LJ at p. 401, as follows:        "The Inspectors' function is in essence to conduct an      investigation designed to discover whether there are facts which      may result in others taking action; it is no part of their      function to take a decision as to whether action be taken and a      fortiori it is not for them finally to determine such issues as      may emerge if some action eventuates."        Section 434 of the 1985 Act provides:        "(1)   When inspectors are appointed under Section 431 or 432, it      is the duty of all officers and agents of the company ...              (a)    to produce to the inspectors all books and documents            of or relating to the company ... which are in their            custody or power,              (b)    to attend before the inspectors when required to do so            and,              (c)    otherwise to give the inspectors all assistance in            connection with the investigation which they are reasonably            able to give...        ...        (3)    An inspector may examine on oath the officers and agents of      the company or other body corporate, and any such person as is      mentioned in subsection (2), in relation to the affairs of the      company or other body, and may administer an oath accordingly...        ...        (5)    An answer given by a person to a question put to him in      exercise of powers conferred by this section (whether it has      effect in relation to an investigation under any of sections 431      to 433, or as applied by any other section in this Part) may be      used in evidence against him."        Section 436 of the Act provides:        "(1)   When inspectors are appointed under section 431 or 432 to      investigate the affairs of a company, the following applies in      the case of -              (a)    any officer or agent of the company,              (b)    any officer or agent of another body corporate whose            affairs are investigated under section 433 and              (c)    any such person as is mentioned in section 434(2).              Section 434(4) applies with regard to references in this            sub-section to an officer or agent.        (2)    If that person -              (a)    refuses to produce any book or document which it is            his duty under section 434 or 435 to produce, or              (b)    refuses to attend before the inspectors when required            to do so, or              (c)    refuses to answer any question put to him by the            inspectors with respect to the affairs of the company or            other body corporate (as the case may be) the inspectors            may certify the refusal in writing to the court.        (3)    The court may thereupon enquire into the case, and, after      hearing any witnesses who may be produced against or on behalf      of the alleged offender and after hearing any statement which may      be offered in defence, the court may punish the offender in like      manner as if he had been guilty of contempt of the court."        Contempt of court in this context may be punished by the imposition of a fine or by committal to prison for a period not exceeding two years.   c.    Provisions of the Police and Criminal Evidence Act 1984 and the      Criminal Justice Act 1987        Section 76 of the Police and Criminal Evidence Act 1984 (PACE) provides as relevant:        "1.    In any proceedings a confession made by an accused person      may be given in evidence against him in so far as it is relevant      to any matter in issue in the proceedings and is not excluded by      the court in pursuance of this section.        2.     If, in any proceedings where the prosecution proposes to      give in evidence a confession made by an accused person, it is      represented to the court that the confession was or may have been      obtained -              (a)    by oppression of the person who made it; or              (b)    in consequence of anything said or done which was            likely, in the circumstances existing at the time, to            render unreliable any confession which might be made by him            in consequence thereof,        the court shall not allow the confession to be given in evidence      against him except in so far as the prosecution proves to the      court beyond a reasonable doubt that the confession      (notwithstanding that it might be true) was not obtained as      aforesaid..."        Section 78 provides as relevant:        "1.    In any proceedings the court may refuse to allow the      evidence on which the prosecution proposes to rely to be given      if it appears to the court that, having regard to all the      circumstances, including the circumstances in which the evidence      was obtained, the admission of the evidence would have such an      adverse effect on the fairness of the proceedings that the court      ought not to admit it."        Under section 82 (1) of PACE a "'confession' includes any statement wholly or partly adverse to the person who made it, whether made to a person in authority or not and whether made in words or otherwise."        The Criminal Justice Act 1987 confers on the Director of the Serious Fraud Office special powers to assist him in the investigation and prosecution of serious fraud. Section 2(2) requires a person whose affairs are being investigated to answer questions even if by so doing he might incriminate himself. Failure to answer may give rise to criminal sanctions (section 2(13)). Answers in this context cannot be used in evidence against a suspect unless he is prosecuted for failure, without reasonable excuse, to answer questions or unless he makes a statement in evidence which is inconsistent with a previous answer (section 2(8)).     COMPLAINTS        The applicants complain under Article 6 paras. 1 and 3 (d) of the Convention that they did not receive a fair trial. They submit that the decision taken by the prosecution involved an impermissible degree of co-operation between the DPP and the DTI which postponed the opening of a police investigation and thus postponed the procedural protection to which the applicants were entitled under the Convention, that self- incriminating evidence was used which had been obtained under exceptional powers and without their having been given notice of the prosecution's involvement and that the prosecution withheld evidence relevant for the defence. Given the non-disclosure of evidence, they could not obtain the attendance of potential witnesses on the same terms as the prosecution as the defence was unaware of the existence of such witnesses, who were known to the prosecution but not relied on by it as their evidence would not be helpful to the prosecution itself. The applicant considers that in these circumstances there has been a violation of the principle of equality of arms.        The applicants further complain under Article 6 para. 1 of the Convention that the criminal proceedings against them have exceeded a reasonable time.        The applicants complain that the use of evidence obtained by the DTI Inspectors was contrary to the presumption of innocence within the meaning of Article 6 para. 2 of the Convention. They submit that this principle reflects the requirement in English law that the prosecution must prove a criminal case beyond reasonable doubt and that the principle of presumption of innocence operates to allow a person not to answer questions and an accused to remain silent without adverse inference being drawn from that fact.        The applicants complain that the Inspectors' investigation, the criminal proceedings, their convictions, the resulting publicity and the effects of the consequential blight on their reputation, including the annulment of the first applicant's knighthood, constitute an unjust interference with their rights under Article 8 para. 1 of the Convention.        The applicants complain that, given the unfairness and thus unlawfulness of the criminal proceedings against them, the judgment and their convictions affirmed by the Court of Appeal on 27 November 1995 constituted an impermissible interference with their right to respect for their possessions protected by Article 1 of Protocol No. 1.        The applicants finally complain under Article 13 of the Convention that they have no remedy as regards their complaints under Article 6, Article 8 and Article 1 of Protocol No. 1.     THE LAW   1.    The applicants complain under Article 6 paras. 1 and 3 (d) (Art. 6-1, 6-3-d) of the Convention that they did not receive a fair trial in that, given the non-disclosure of evidence, they could not obtain the attendance of potential witnesses on the same terms as the prosecution as the defence was unaware of the existence of such witnesses, who were known to the prosecution but not relied on by it as their evidence would not be helpful to the prosecution itself. The applicants consider that in these circumstances there has been a violation of the principle of equality of arms.        The applicants further complain under Article 6 para. 1 (Art. 6-1) of the Convention that the criminal proceedings against them exceeded a reasonable time.        The applicants finally complain under Article 6 paras. 1 and 2 (Art. 6-1, 6-2)) of the Convention that they did not receive a fair hearing in that self-incriminating evidence was used which had been obtained under exceptional powers and without their having been given notice of the prosecution's involvement. They further contend that the authorities, in operating this way, acted contrary to the presumption of innocence.        The applicants also complain under Article 13 (Art. 13) of the Convention that they have no remedy as regards their complaints under Article 6 (Art. 6).        Article 6 (Art. 6) of the Convention, insofar as relevant, reads:        "1.    In the determination of ... any criminal charge      against him, everyone is entitled to a fair and public      hearing within a reasonable time by an independent and      impartial tribunal established by law...        2.     Everyone charged with a criminal offence shall be      presumed innocent until proved guilty according to law.        3.     Everyone charged with a criminal offence has the      following minimum rights:            ...            d.     to examine or have examined witnesses against      him and to obtain the attendance and examination of      witnesses on his behalf under the same conditions as      witnesses against him;"        Article 13 (Art. 13) of the Convention provides as follows:        "Everyone whose rights and freedoms as set forth in this      Convention are violated shall have an effective remedy      before a national authority notwithstanding that the      violation has been committed by persons acting in an      official capacity."   a)    As regards the applicants' complaint under Article 6 paras. 1 and 3 (d) (Art. 6-1, 6-3-d) of the Convention that they did not receive a fair trial in that, given the non-disclosure of evidence, they could not obtain the attendance of potential witnesses on the same terms as the prosecution as the defence was unaware of the existence of such witnesses, who were known to the prosecution but not relied on by it as their evidence would not be helpful to the prosecution itself, the Commission notes that this evidence was disclosed to the defence when the Home Secretary referred the applicants' whole case to the Court of Appeal on 22 December 1994.        Following this referral, the Court of Appeal examined the applicants' cases in their entirety including the material which had not been previously disclosed by the prosecution.        It does not appear that the applicants, on the basis of this newly disclosed material, sought the attendance and examination of any witnesses before the Court of Appeal. It further has not been alleged that the applicants were unable to do so at this stage of the proceedings, or that the principle of equality of arms was violated in any other way in the proceedings at issue.        In these circumstances, the Commission considers that this defect of the original trial was remedied by the subsequent procedure before the Court of Appeal (cf. Eur. Court HR, Edwards v. the United Kingdom judgment of 16 December 1992, Series A no. 247-B, p. 35, paras. 36-39).        Insofar as the applicants rely on Article 13 (Art. 13) of the Convention in conjunction with the above complaint under Article 6 paras. 1 and 3 (d) (Art. 6-1, 6-3-d) of the Convention, the Commission recalls that Article 13 (Art. 13) does not require a remedy under domestic law in respect of any alleged violation of the Convention. It only applies if the individual can be said t