CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 19 septembre 2000

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margin-bottom:0pt; text-align:left } .s6D6D4050 { width:15.16pt; display:inline-block } .sF749C1BD { width:270.82pt; display:inline-block } .s86EB6A32 { width:267.97pt; display:inline-block } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s3133A7C8 { font-family:Arial; color:#0069d6 }     THIRD SECTION     CASE OF I.J.L. AND OTHERS v. THE UNITED KINGDOM     (Application nos. 29522/95, 30056/96 and 30574/96)     JUDGMENT     STRASBOURG     19 September 2000       FINAL     19/12/2000         In the case of I.J.L. and Others v. the United Kingdom, The European Court of Human Rights (Third Section), sitting as a Chamber composed of:   Mr   J.-P. Costa , President ,   Mr   W. Fuhrmann ,   Mr   L. Loucaides ,   Mrs   F. Tulkens ,   Mr   K. Jungwiert ,   Sir   Nicolas Bratza ,   Mr   K. Traja , judges , and Mrs S. Dollé , Section Registrar , Having deliberated in private on 6 July 1999 and 29 August 2000, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1.     The case originated in three applications (nos. 29522/95, 30056/96 and 30574/96) against the United Kingdom of Great Britain and Northern Ireland lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by three United Kingdom nationals, Mr I.J.L., Mr G.M.R. and Mr A.K.P. (“the applicants”), on 30 November, 18 December and 8 December 1995 respectively. 2.     The first applicant was represented by Stephenson Harwood, the second applicant by Mishcon de Reya and the third applicant by Peters and Peters, all firms of solicitors based in London. The applicants' representatives were assisted by Mr P.J. Gardner, a lawyer practising in London. The United Kingdom Government (“the Government”) were represented by their Agent, Mr M. Eaton, Deputy Legal Adviser at the Foreign and Commonwealth Office, London. The applicants' request not to have their names disclosed was acceded to in the proceedings before the Commission. Their anonymity was maintained in the proceedings before the Court. 3.     The applicants alleged, in particular, that they were denied a fair trial in breach of Article 6 of the Convention on account of the prosecution's use of statements which they had been compelled to supply at the pre-trial stage of the criminal proceedings, the refusal of the prosecution to disclose documents of relevance to their defence, improper collusion between the prosecution and other agencies and the unreasonable length of the criminal proceedings. 4.     The applications were joined by the Commission. After the adoption of the Commission's partial admissibility decision on 9 April 1997, the joined applications were transmitted to the Court on 1 November 1998, when Protocol No. 11 to the Convention came into force (Article 5 § 2 of Protocol No. 11). 5.     The applications were allocated to the Third Section of the Court (Rule   52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1. 6.     By a decision of 6 July 1999 the Chamber declared the applications partly admissible [1] . 7.     The applicants and the Government each filed observations on the merits and replied to each other's submissions. The Chamber decided, after consulting the parties, that no hearing on the merits was required (Rule 59 §   2 in fine ). THE FACTS I.     THE CIRCUMSTANCES OF THE CASE A.     Factual background leading to the appointment of inspectors 8.     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 takeover battle resulted in victory for Guinness. Guinness's 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. According to the third applicant the share price rose in line with the range of the company's market sector and the fall was a consequence of normal market forces. 9.     There were allegations and rumours of misconduct during the bid to the effect that the substantial increase in the quoted Guinness share price during the bid had been 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. It was alleged that supporters were offered secret indemnities against any losses they might incur and, in some cases, also large success fees if the Guinness's bid was successful. Such inducements, if true, would have been unlawful (1)   because they were not disclosed to the market under the City Code on Takeovers 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. 10.     It was further alleged that supporters who had purchased shares under the unlawful share-support operation were indemnified and rewarded, and that some of those who had helped find supporters were rewarded by the payment of large fees which had also come from Guinness funds. It was rumoured that 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. 11.     These allegations and rumours led the Secretary of State for Trade and Industry on 28 November 1986 to appoint inspectors pursuant to sections   432 and 442 of the 1985 Act to inquire into the acquisition of Distillers by Guinness and to investigate the affairs of Guinness. B.     The inspectors' investigation 12.     The investigation began on 1 December 1986. 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. 13.     On 18 December 1986 the inspectors requested the second applicant to provide documents relating to his company's dealings in the shares of Guinness during the takeover bid. The second applicant's solicitor provided the materials on 24 December 1986, which indicated that his company had been approached by the third applicant about supporting the Guinness takeover bid. 14.     On 12 January 1987 the inspectors informed the Department of Trade and Industry (DTI) of certain matters and, on 13 January 1987, a note from the DTI solicitor recorded that there was concrete evidence of criminal offences having been committed. On the same day 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 inquiry and to pass the transcripts on to the Crown Prosecution Service (CPS) which had come into being in September 1986. All the applicants maintain that they were unaware of these arrangements when they were interviewed by the inspectors. 15.     On 14 January 1987 the Chairman of Guinness, Mr Saunders, was dismissed from the company. 16.     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. The applicants point to official documentation which in their view confirms the collusion which began to take shape. 17.     On 30 January 1987 a meeting was held attended by the inspectors, the solicitor and other officials of the DTI, Mr Wood and a representative from the CPS. Among 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. The applicants maintain that they were never notified of these arrangements during their respective interviews. 18.     On 5 February 1987 Mr 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 applicants state that it is a matter of fact that all the transcripts and documents which existed at that date were passed on to the team of prosecution counsel as well as all material arising after that date. 19.     The interviews conducted by the inspectors were surrounded by a constant wave of media publicity. 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 interviews related to his involvement in advising Guinness on the bid for Distillers and in identifying investors prepared to support the bid by purchasing Guinness shares. The second applicant was interviewed by the inspectors on two occasions: on 14 January and 2 September 1987. The interviews focused on the way in which he was drawn into the support operation for the Guinness bid and on the arrangements for the payment of the success fee to his company. The third applicant was interviewed by the inspectors on 22 and 27   January 1987. He was accompanied by his solicitor throughout these interviews during which he was pressed to answer a number of specific questions. He maintains that he sought either in person or through his solicitor to decline to answer them but was advised throughout of the consequences of his failure to respond. He was further interviewed by the inspectors on 26 May 1987. On 17 July 1987 the third applicant's solicitors confirmed the transcripts of the evidence which he had given, subject to a small amendment. 20.     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, where he arrived on 30 September 1987. He was immediately arrested and detained pursuant to 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 21.     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. 22.     On 7 May 1987 Mr Saunders was charged with numerous offences relating to the illegal share-support operation. The applicants state that these were holding charges and did not relate to the illegal share-support operation. The charges against Mr Saunders related to the alleged destruction of records and documents belonging to Guinness which were created during his time as chief executive of the company. 23.     About one month later the DPP instructed the police to carry out an investigation into the wider aspects of the Guinness takeover. The applicants maintain that an informal police investigation against them was already under way as from 12 January 1987, having regard to the well-documented cooperation between the inspectors, the DTI and the Deputy DPP based on the transcripts of the interviews conducted by the inspectors. 24.     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. 25.     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. 26.     After his return from the United States, the third applicant was charged with six offences relating to two invoices and the success fees which had been charged to Guinness following its takeover of Distillers. 27.     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. 28.     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. The third applicant's application to be tried with the latter category of defendants was refused. 29.     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 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. 30.     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, that 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. 31.     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. 32.     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 have been 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 33.     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. 34.     In the course of the trial, Mr Saunders was the only accused to give evidence. According to the applicants, the testimony of Mr Saunders was irreconcilable with the evidence which each had given to the inspectors and prejudicial to their case that their involvement in the share-support operation had not been dishonest. The third applicant maintains that his participation in the operation was in line with City practice on takeovers, but that he was unable to obtain witnesses who would be prepared to testify to this for fear of repercussions engendered by the criminal proceedings. He claims that at the time of his trial the prosecution had in its possession extensive material arising out of other investigations into takeover bids which confirmed that share-support operations involving indemnities to the purchasers of shares were regarded as an acceptable practice in the City. 35.     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. In the third applicant's submission, the prosecution had acknowledged at the voir dire that this was in fact the only evidence against him. 36.     The transcripts of the interviews were read out to the jury by the prosecution over a three-day period during the trial (days 45 to 47). They were used in order to establish the state of the applicants' knowledge. 37.     In his summing-up to the jury, the judge referred, inter alia , to the answers which the applicants had given to the DTI inspectors. 38.     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 pounds sterling (GBP), with a total of five years' imprisonment in default. He was also ordered to contribute GBP 440,000 towards the prosecution's costs. 39.     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 twelve months and was fined GBP 5,000,000, with a four-year consecutive prison sentence in default. He was also ordered to contribute GBP 440,000 towards the prosecution's costs. 40.     The third applicant was convicted of four counts of false accounting and two counts of theft. He received an overall prison sentence of two and a half years. He was also ordered to contribute GBP 440,000 towards the prosecution's costs. 41.     Mr Saunders was convicted of twelve counts in respect of conspiracy, false accounting and theft. He received an overall prison sentence of five years. E.     The ruling on “abuse of process” claims 42.     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 so that the inspectors could use their powers to obtain confessions. 43.     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 1987. He concluded 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. 44.     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 45.     All three 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. 46.     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. 47.     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 two and a half years' imprisonment. 48.     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. 49.     The third applicant's appeal resulted in a reduction of his sentence to twenty-one months' imprisonment. 50.     The orders for costs made against the second and third applicants were reduced to GBP 300,000 each. A similar order was made by the Court of Appeal in favour of the first applicant. 51.     On 13 December 1991 the Disciplinary Committee of the Council of the Stock Exchange ordered that the third applicant be expelled from the Stock Exchange. 52.     On 20 July 1991 Mr Saunders lodged an application (no. 19187/91) with the European Commission of Human Rights. G.     Subsequent reference to the Court of Appeal by the Home Secretary 53.     On 3 August 1992 the applicants became aware for the first time of the existence of part of the material obtained by and available to the prosecution prior to their trial and which had not been previously disclosed. This evidence had been disclosed by the prosecution to the defendants in the second Guinness trial on 20 December 1991. They maintained that this material showed that share-support operations had been undertaken in relation to a number of other takeovers and had been considered to be an 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). The Licensed Dealers' Tribunal had taken the view that share-support operations were an acceptable City practice. 54.     The applicants sought disclosure of this material from the prosecuting authorities. In view of their failure to do so, they requested the Home Secretary to refer the case back to the Court of Appeal pursuant to section   17(1)(a) of the Criminal Appeal Act 1968. On 22 December 1994 the Home Secretary referred the whole of the applicants' and Mr Saunders' case to the Court of Appeal. The European Commission stayed consideration of the admissibility of Mr Saunders' application pending the outcome of the referral proceedings. After the case was referred, the prosecution disclosed the remainder of the material. The hearing before the Court of Appeal took place between 16 and 26 October 1995. 55.     On 27 November 1995, the Court of Appeal rejected the first applicant's appeal on all but one count, quashing his conviction on one of the conspiracy counts. The appeals by the second and third applicants and Mr Saunders were dismissed. 56.     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. 57.     In its judgment the court noted that the interviews with each of the accused “formed a significant part of the prosecution case”. 58.     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 ...” 59.     In relation to the argument that the difference between the Companies Act and the Criminal Justice Act regimes 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 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.” 60.     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] regime there is an obligation to answer the inspectors' questions on pain of sanctions.” 61.     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.” 62.     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 held: “... it has been argued that the documents which we have seen, or at least some of them, should have been disclosed at the trial. The [applicants] claim that they, by counsel, raised an issue as to the delay in bringing in the police; that being so, disclosure should have been made. Instead a PII [Public Interest Immunity] certificate ... was put before the judge. Again complaint is made that the judge did not look behind the PII certificate and examine the documents himself ... ... Upon a bare assertion that the police should have been brought in earlier, we do not consider that the [applicants] were entitled at trial to the cornucopia of privileged documents before us. The PII certificate fairly and accurately summarised the principal documents to which it referred and we consider it was properly made. No party invited the judge to go behind it and examine the documents himself. At that time the Court of Appeal had not laid down any guidelines requiring the judge to do so. In any event, having seen all the documents, we have ... reached the conclusion that there was no abuse of process or improper collusion.” 63.     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.” 64.     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. II.     RELEVANT DOMESTIC LAW A.     Appointment of inspectors 65.     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)) 66.     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 67.     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 Lord Justice Sachs, 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.” 68.     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.” 69.     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 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.” 70.     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 71.     The relevant part of section 76 of the Police and Criminal Evidence Act 1984 (PACE) provides: “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 ...” 72.     Section 78(1) provides: “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.” 73.     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. 74.     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)). THE LAW i.     scope of the case 75.     The Court observes that the applicants in their submissions alleging unfairness in the criminal proceedings brought against them rely on Article   6 § 1 of the Convention while cross-referring to the more detailed safeguards laid down in Article 6 § 3 thereof. This is especially true of their arguments in support of their complaints, firstly, that there was improper collusion between the DTI inspectors and other agencies and, secondly, that the prosecution had deliberately withheld from them materials of relevance to their defence. As to the latter issue the Court notes that the Commission in its partial admissibility decision adopted on 9 April 1997 (see paragraph   4 above) declared inadmissible the applicants' complaint under Article 6 §   3 (d) that the alleged non-disclosure of materials prevented them from securing the attendance of witnesses favourable to their defence. 76.     In the Commission's opinion, all the materials at issue had been disclosed to the applicants by the time the Court of Appeal reconsidered the applicants' appeal in the reference proceedings. On the basis of the materials disclosed the applicants did not seek the attendance and examination of witnesses and it was not alleged that they were prevented at that stage from doing so. In the Commission's conclusion any defect in the original trial and appeal was remedied by the subsequent procedure before the Court of Appeal and on that account the applicants' complaint was declared inadmissible as being manifestly ill-founded. Although the applicants maintain that they were only able to supply these materials to the Court following the Government's decision to authorise their use in the proceedings before it subject to certain undertakings, the Court does not consider that this factor serves to put in issue the Commission's inadmissibility decision on this complaint. 77.     However, the issue of non-disclosure, in so far as it is pleaded with respect to the wider issues of improper collusion or the lack of an adversarial procedure, is before the Court, having regard to the applicants' reliance on the provisions of Article 6 § 3, including sub ‑ paragraph (d) thereof. In this connection, the Court recalls that the guarantees of paragraph 3 of Article 6 are specific aspects of the right to a fair trial set out in paragraph 1 (see the Edwards v. the United Kingdom judgment of 16   December 1992, Series A no. 247-B, p. 34, § 33). In the circumstances of the case, it does not find it necessary to examine the applicants' allegations separately from the standpoint of paragraph 3 (a) to (d), since they amount to a complaint that the applicants did not receive a fair trial. II.     alleged violation of article 6 § 1 of the convention 78.     The applicants complained that their right to a fair procedure guaranteed by Article 6 § 1 of the Convention was breached in several respects. The relevant part of Article 6 § 1 provides: “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 ...” A.     Improper use by the prosecution of the transcripts of the applicants' interviews with the inspectors 79.     The applicants maintained that the fairness of the criminal proceedings brought against them had been vitiated on account of the use made by the prosecution at their trial of the statements which they had been compelled under statute to supply to the DTI inspectors. 80.     The third applicant further maintained that the prosecution had in fact conceded that he would not have been put on trial had it not been for the transcripts (see paragraph 35 above). However, he stood trial along with three other co-accused whose evidence to the inspectors was read out to the jury. Moreover, the testimony of Mr Saunders from the witness-box in response to the DTI transcripts had prejudiced the fairness of his and his co-applicants' trial. The third applicant asserted in this connection that he had in fact sought to be tried separately to avoid damage being caused to his defence, but this had been refused (see p