Saunders v. the United Kingdom
Strafrecht 3 (nieuw Form. Straf.) (RGBSR00010)
Rijksuniversiteit Groningen
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CONSEIL DEL’EUROPE
COUNCIL OFEUROPE
COUREUROPÉENNEDESDROITSDEL’HOMME
EUROPEANCOURTOFHUMANRIGHTS
COURT (CHAMBER)
CASE OF SAUNDERS v. UNITED KINGDOM
(Application no. 19187/91)
JUDGMENT
STRASBOURG
17 December 1996
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In the case of Saunders v. United Kingdom 1 , The European Court of Human Rights, sitting, in pursuance of Rule 51 of Rules of Court A 2 , as a Grand Chamber composed of the following judges: MM. R. BERNHARDT, President, THÓR VILHJÁLMSSON, F. GÖLCÜKLÜ, L.-E. PETTITI, B. WALSH, A. SPIELMANN, J. DE MEYER, N. VALTICOS, S. MARTENS, Mme E. PALM, MM. R. PEKKANEN, A. LOIZOU, J. MORENILLA, Sir John FREELAND, MM. L. WILDHABER, G. MIFSUD BONNICI, J. MAKARCZYK, D. GOTCHEV, B. REPIK, P. KURIS, and also of Mr H. PETZOLD, Registrar, and Mr P. MAHONEY, Deputy Registrar, Having deliberated in private on 23 February, 22 April and 29 November 1996, Delivers the following judgment, which was adopted on the last-mentioned date:
PROCEDURE
- The case was referred to the Court by the European Commission of Human Rights ("the Commission") and by the Government of the United Kingdom of Great Britain and Northern Ireland ("the Government") on
1 The case is numbered 43/1994/490/572. The first number is the case's position on the list
of cases referred to the Court in the relevant year (second number). The last two numbers indicate the case's position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission. 2 Rules A apply to all cases referred to the Court before the entry into force of Protocol
No. 9 (P9) (1 October 1994) and thereafter only to cases concerning States not bound by that Protocol (P9). They correspond to the Rules that came into force on 1 January 1983, as amended several times subsequently.
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on 3 January 1996. The Government’s memorial in reply was received on 23 January. 7. On 25 January 1996 the President refused a request under Rule 37 para. 2 made on behalf of three of the applicant’s co-accused to file written comments on the case. 8. In accordance with the President’s decision, the hearing took place in public in the Human Rights Building, Strasbourg, on 19 February 1996. The Court had held a preparatory meeting beforehand. There appeared before the Court: - for the Government Mr M. EATON, Deputy Legal Adviser, Foreign and Commonwealth Office, Agent, Mr S. KENTRIDGE QC, Ms E. GLOSTER QC, Mr J. EADIE, Barrister-at-Law, Counsel, Ms T. DUNSTAN, Department of Trade and Industry, Mr J. GARDNER, Department of Trade and Industry, Ms R. QUICK, Department of Trade and Industry, Mr G. DICKINSON, Serious Fraud Office, Mr L. LEIGH, London School of Economics, Advisers; - for the Commission Mr N. BRATZA, Delegate; - for the applicant Mr M. BELOFF QC, Mr M. HUNT, Barrister-at-Law, Counsel, Mr P. WILLIAMS, Solicitor, Mr G. DEVLIN, Ms L. DEVLIN, Advisers. The Court heard addresses by Mr Bratza, Mr Beloff and Mr Kentridge and also replies to its questions. 9. Following deliberations on 23 February 1996 the Chamber decided to relinquish jurisdiction forthwith in favour of a Grand Chamber (Rule 51 para. 1). 10. By virtue of Rule 51 para. 2 (a) and (b), the President and the Vice-President of the Court (Mr Ryssdal and Mr Bernhardt) as well as the other members and the substitute judges (namely, Mr B. Walsh, Mr J. De Meyer, Mr S. Martens and Mr D. Gotchev) of the original Chamber are members of the Grand Chamber. Since Mr Ryssdal had been unable to take part (see paragraph 3 above), the names of the additional eight judges were drawn by lot by the Vice-President, in the presence of a member of the registry, on 1 March 1996, namely, Mr L.-E. Pettiti, Mr R. Macdonald, Mr A. Spielmann, Mrs E. Palm, Mr R. Pekkanen, Mr A. Loizou, Mr L. Wildhaber and Mr G.
Mifsud Bonnici (Rule 51 para. 2 (c)). Subsequently, Mr Macdonald was unable to take part in the further consideration of the case. 11. On 6 March 1996 the Government requested permission to file further brief observations in writing, which request was granted by the President of the Grand Chamber on 19 March 1996. These observations were submitted on 4 April and the Delegate’s and the applicant’s comments in reply were received on 18 April. 12. Having taken note of the opinions of the Agent of the Government, the Delegate of the Commission and the applicant, the Grand Chamber decided on 22 April 1996 that it was not necessary to hold a further hearing following the relinquishment of jurisdiction by the Chamber (Rules 26 and 38, taken together with Rule 51 para. 6). 13. On 8 August 1996 the President admitted to the file an article submitted by the Government.
AS TO THE FACTS
I. PARTICULAR CIRCUMSTANCES OF THE CASE
A. Factual background leading to the appointment of inspectors
- The applicant had become a director and chief executive of Guinness PLC ("Guinness") in 1981.
- In early 1986 Guinness was competing with another public company, Argyll Group PLC ("Argyll"), to take over a third public company, the Distillers Company PLC ("Distillers"). The take-over battle resulted in victory for Guinness. Guinness’s offer to Distillers’ shareholders, like Argyll’s, included a substantial share exchange element, and accordingly the respective prices at which Guinness and Argyll shares were quoted on the Stock Exchange was a critical factor for both sides. During the course of the bid the Guinness share price rose dramatically, but once the bid had been declared unconditional it fell significantly.
- The substantial increase in the quoted Guinness share price during the bid was achieved as a result of an unlawful share-support operation. This involved certain persons ("supporters") purchasing Guinness shares in order to maintain, or inflate, its quoted share price. Supporters were offered secret indemnities against any losses they might incur, and, in some cases, also large success fees, if the Guinness bid was successful. Such inducements were unlawful (1) because they were not disclosed to the market under the City Code on Take-overs and Mergers and (2) because they were paid out of Guinness’s own moneys in breach of section 151 of the Companies Act 1985 ("the 1985 Act"), which prohibits a company from
criminal aspects of the investigation. Transcripts and documents from the inspectors were passed on to the team after receipt and consideration by the DTI. 25. The applicant was interviewed by the inspectors on nine occasions: on 10-11, 20 and 26 February, 4-5 March, 6 May and 11-12 June 1987. He was accompanied by his legal representatives throughout these interviews.
C. The criminal proceedings
- 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.
- The applicant was subsequently charged with numerous offences relating to the illegal share-support operation and, together with his co-defendants, was arraigned before the Crown Court on 27 April 1989. In view of the large number of counsel and the number of defendants two separate trials were subsequently ordered by the trial judge in the Crown Court on 21 September 1989.
- From 6 to 16 November 1989 the court held a voir dire (submissions on a point of law in the absence of the jury) following the application of one of the applicant’s co-defendants, Mr Parnes, to rule the DTI transcripts inadmissible. Mr Parnes argued, principally, that the statements obtained during three interviews before the inspectors should be excluded (i) pursuant to section 76 of the Police and Criminal Evidence Act 1984 ("PACE") on the basis that they had been obtained by oppression or in circumstances which were likely to render them unreliable; (ii) pursuant to section 78 of PACE because of the adverse effect the admission of the evidence would have on the fairness of the proceedings having regard to the circumstances in which it was obtained. In a ruling given on 21 November 1989, the trial judge (Mr Justice Henry) held that the transcripts were admissible. He stated that it was common ground that the interviews were capable of being "confessions" as defined in section 82 (1) of PACE. He found that as a matter of construction of the 1985 Act inspectors could ask witnesses questions that tended to incriminate them, the witnesses were under a duty to answer such questions and the answers were admissible in criminal proceedings. He rejected Mr Parnes’s assertion that the inspectors should have given a warning against self-incrimination. He was satisfied that there was no element of oppression involved in the obtaining of the evidence and that the answers were not obtained in consequence of anything said or done which was likely to render them unreliable in all the circumstances existing at the time.
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From 22 to 24 January 1990 the court held a further voir dire following the application of the applicant to rule inadmissible the DTI transcripts concerning the eighth and ninth interviews on the basis that they should be excluded either as unreliable under section 76 of PACE or pursuant to section 78 of PACE because of the adverse effect the admission of the evidence would have on the fairness of the proceedings having regard to the circumstances in which it was obtained. Reliance was placed on the applicant’s alleged ill-health at the time and on the fact that the two interviews in question had taken place after the applicant had been charged. In his ruling of 29 January 1990 Mr Justice Henry rejected the defence argument as to the applicant’s medical condition. He did, however, exercise his discretion pursuant to section 78 to exclude the evidence from the two above-mentioned interviews which had taken place after the applicant had been charged on the grounds that his attendance could not be said to be voluntary. In his view, moreover, it could not be said to be fair to use material obtained by compulsory interrogation after the commencement of the accusatorial process.
The applicant’s trial
The applicant was tried together with three co-defendants. The trial involved seventy-five days of evidence, ten days of speeches by counsel and a five-day summing-up to the jury by the trial judge. The applicant faced fifteen counts including, inter alia, eight counts of false accounting contrary to section 17 (1) b of the Theft Act 1968 and two counts of theft and several counts of conspiracy. In the course of his trial the applicant, who was the only accused to give evidence (days 63-82) - after the reading of the transcripts (see paragraph 31 below) - testified that he knew nothing about the giving of indemnities or the paying of success fees and that he had not been consulted on such matters. He asserted that he had been guilty of no wrongdoing. The Crown relied heavily on the evidence of Mr Roux (Guinness’s finance director) who had been granted immunity from prosecution. It also referred to the statements made by the applicant in the course of interviews to the DTI inspectors.
The transcripts of the interviews were read to the jury by the prosecution over a three-day period during the trial (days 45-47). They were used in order to establish the state of the applicant’s knowledge and to refute evidence given by the applicant to the jury. For example, counsel for the prosecution used passages from the interviews to demonstrate that Mr Saunders had been aware, inter alia, of the payment to Mr W., who had been allegedly involved in the share-support operation, of more than £5 million, before the inspectors had shown him an invoice for the payment of the money to Mr W. In his answers to the inspectors Mr Saunders had stated that he had agreed on the
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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.
The applicant’s appeal
The applicant applied for leave to appeal against conviction and sentence. He argued, inter alia, that the trial judge had misdirected the jury as to the weight to be allowed to the evidence given by Mr Roux, the finance director of Guinness who had been afforded immunity from prosecution. The applicant was granted leave to appeal against conviction. Following a hearing at which the applicant was represented, the Court of Appeal gave its judgment on 16 May 1991. It held that while there were some blemishes and infelicities in the judge’s summing-up, it was in the main a masterly exposition, which left the main issue of dishonesty to the jury. It commented that the applicant’s counsel had expressed the possibility that he might wish to address the court as to the admissibility of the transcripts. It stated however that the question had been decided, as far as it was
concerned, by the decision given by another division of the Court of Appeal in the case of R. v. Seelig, which had held that such statements were admissible. It went on to reject the applicant’s appeal on all but one count: it found that the judge had erred in his direction on one count and quashed that conviction. It reduced his sentence to two and a half years’ imprisonment.
D. Subsequent reference to the Court of Appeal by the Home Secretary
- On 22 December 1994 the Home Secretary referred the applicant’s case and that of his co-defendants to the Court of Appeal pursuant to section 17 (1) of the Criminal Appeal Act 1968. He did so on the basis of applications by the applicant’s co-defendants - but not the applicant himself
- who submitted that the prosecution had failed to disclose certain documents at their trial.
- At the appeal the applicant argued, inter alia, that the use at the trial of answers given to the DTI inspectors automatically rendered the criminal proceedings unfair. The court rejected this argument, pointing out that Parliament had expressly and unambiguously provided in the 1985 Act that answers given to DTI inspectors may be admitted in evidence in criminal proceedings even though such admittance might override the privilege against self-incrimination. In its judgment the court noted that the interviews with each of the accused "formed a significant part of the prosecution case".
- With reference to the allegation that it was unfair that those interviewed by DTI inspectors should be treated less favourably than those interviewed by the police under PACE, the court noted as follows:
"... the unravelling of complex and devious transactions in those fields is particularly difficult and those who enjoy the immunities and privileges afforded by the Bankruptcy Laws and the Companies Acts must accept the need for a regime of stringent scrutiny especially where fraud is suspected ..." 42. In relation to the argument that the difference between the Companies Act and the Criminal Justice Act regimes (see paragraphs 48 and 54 below) was anomalous the court stated:
"... the explanation lies in the very different regime of interviews by DTI inspectors compared with that of interviews either by police or the SFO [Serious Fraud Office]. DTI inspectors are investigators; unlike the police or SFO they are not prosecutors or potential prosecutors. Here, typically, the two inspectors were a Queen’s Counsel and a senior accountant. They are bound to act fairly, and to give anyone they propose to condemn or criticise a fair opportunity to answer what is alleged against them ... Usually, the interviewee will be represented by lawyers and he may be informed in advance of the points to be raised."
(d) that the company’s members have not been given all the information with respect to its affairs which they might reasonably expect." (section 432 (2)) 46. The Secretary of State is also empowered to appoint inspectors to: "... investigate and report on the membership of any company, and otherwise with respect to the company, for the purpose of determining the true persons who are or have been financially interested in the success or failure (real or apparent) of the company or able to control or materially to influence its policy." (section 442 (1))
B. Function and powers of inspectors
- The function of inspectors is an inquisitorial and not a judicial function. It has been summarised in re Pergamon Press Ltd [1971] Chancery Reports 388, per Sachs LJ at p. 401, as follows:
"The inspectors’ function is in essence to conduct an investigation designed to discover whether there are facts which may result in others taking action; it is no part of their function to take a decision as to whether action be taken and a fortiori it is not for them finally to determine such issues as may emerge if some action eventuates." 48. Section 434 of the 1985 Act provides: "(1) When inspectors are appointed under section 431 or 432, it is the duty of all officers and agents of the company ... (a) to produce to the inspectors all books and documents of or relating to the company ... which are in their custody or power, (b) to attend before the inspectors when required to do so and, (c) otherwise to give the inspectors all assistance in connection with the investigation which they are reasonably able to give ... ... (3) An inspector may examine on oath the officers and agents of the company or other body corporate, and any such person as is mentioned in subsection (2), in relation to the affairs of the company or other body, and may administer an oath accordingly ... ... (5) An answer given by a person to a question put to him in exercise of powers conferred by this section (whether it has effect in relation to an investigation under any of sections 431 to 433, or as applied by any other section in this Part) may be used in evidence against him." 49. Section 436 of the Act provides: "(1) When inspectors are appointed under section 431 or 432 to investigate the affairs of a company, the following applies in the case of - (a) any officer or agent of the company, (b) any officer or agent of another body corporate whose affairs are investigated under section 433 and (c) any such person as is mentioned in section 434 (2).
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Section 434 (4) applies with regard to references in this subsection to an officer or agent. (2) If that person - (a) refuses to produce any book or document which it is his duty under section 434 or 435 to produce, or (b) refuses to attend before the inspectors when required to do so, or (c) refuses to answer any question put to him by the inspectors with respect to the affairs of the company or other body corporate (as the case may be) the inspectors may certify the refusal in writing to the court. (3) The court may thereupon inquire into the case, and, after hearing any witnesses who may be produced against or on behalf of the alleged offender and after hearing any statement which may be offered in defence, the court may punish the offender in like manner as if he had been guilty of contempt of court." 50. Contempt of court in this context may be punished by the imposition of a fine or by committal to prison for a period not exceeding two years.
C. Provisions of the Police and Criminal Evidence Act 1984 and the Criminal Justice Act 1987
- Section 76 of the Police and Criminal Evidence Act 1984 (PACE) provides as relevant:
"1. In any proceedings a confession made by an accused person may be given in evidence against him in so far as it is relevant to any matter in issue in the proceedings and is not excluded by the court in pursuance of this section. 2. If, in any proceedings where the prosecution proposes to give in evidence a confession made by an accused person, it is represented to the court that the confession was or may have been obtained - (a) by oppression of the person who made it; or (b) in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in consequence thereof, the court shall not allow the confession to be given in evidence against him except in so far as the prosecution proves to the court beyond a reasonable doubt that the confession (notwithstanding that it might be true) was not obtained as aforesaid ..." 52. Section 78 provides as relevant: "1. In any proceedings the court may refuse to allow the evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it."
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as self-incriminating, it would still be necessary to assess whether the extremely limited use in fact made of those answers rendered the criminal proceedings unfair. In their submission it did not.
AS TO THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 OF THE
CONVENTION (art. 6-1)
- The applicant contended that he was denied a fair trial in breach of Article 6 para. 1 of the Convention (art. 6-1) which, in so far as relevant, states:
"In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal ..." The Commission found that there had been such a violation, although this was contested by the Government.
A. The right not to incriminate oneself
- The arguments of those appearing before the Court
a) The applicant 60. The applicant complained of the fact that statements made by him under compulsion to the inspectors appointed by the Department of Trade and Industry (DTI) (see paragraph 18 above) during their investigation were admitted as evidence against him at his subsequent criminal trial (see paragraphs 30-33 above). He maintained that implicit in the right to a fair trial guaranteed by Article 6 para. 1 (art. 6-1), as the Court had recognised in its judgments in Funke v. France (25 February 1993, Series A no. 256-A, p. 22, para. 44) and John Murray v. the United Kingdom (8 February 1996, Reports of Judgments and Decisions 1996-I, p. 49, para. 45), was the right of an individual not to be compelled to contribute incriminating evidence to be used in a prosecution against him. This principle was closely linked to the presumption of innocence which was expressly guaranteed by Article 6 para. 2 of the Convention (art. 6-2) and had been recognised by the Court of Justice of the European Communities (Orkem v. Commission, Case 374/ [1989] European Court Reports 3283) and by the Constitutional Court of South Africa (Ferreira v. Levin and Others, judgment of 6 December 1995) amongst others. It should apply equally to all defendants regardless of the nature of the allegations against them or their level of education and
intelligence. It followed that the use made by the prosecution of the transcripts of interviews with the inspectors in subsequent criminal proceedings was contrary to Article 6 (art. 6). 61. Furthermore, the applicant argued that this use of the transcripts was particularly unfair in his case since, in the words of the Court of Appeal, they "formed a significant part of the prosecution case". Three days were spent reading extracts from his interviews with the inspectors to the jury before Mr Saunders decided that he ought to give evidence to explain and expand upon this material. As a result, he was subjected to intensive cross-examination concerning alleged inconsistencies between his oral testimony at trial and his responses to the inspectors’ questions, to which the trial judge drew attention in his summing-up to the jury. The prosecution’s task was thus facilitated when it was able to contrast its own evidence with Mr Saunders’s more specific denials in his interviews.
b) The Government 62. The Government submitted that only statements which are self-incriminating can fall within the privilege against self-incrimination. However, exculpatory answers or answers which, if true, are consistent with or would serve to confirm the defence of an accused cannot be properly characterised as self-incriminating. In their submission, neither the applicant nor the Commission had identified at any stage a single answer given by the applicant to the DTI inspectors which was self-incriminating. There cannot be derived from the privilege against self-incrimination a further right not to be confronted with evidence that requires the accused, in order successfully to rebut it, to give evidence himself. That, in effect, was what the applicant was claiming when he alleged that the admission of the transcript "compelled" him to give evidence. The Government accepted that a defendant in a criminal trial cannot be compelled by the prosecution or by the court to appear as a witness at his own trial or to answer questions put to him in the dock, and that an infringement of this principle would be likely to result in a defendant not having a fair hearing. However, the privilege against self-incrimination was not absolute or immutable. Other jurisdictions (Norway, Canada, Australia, New Zealand and the United States of America) permit the compulsory taking of statements during investigation into corporate and financial frauds and their subsequent use in a criminal trial in order to confront the accused’s and witnesses’ oral testimony. Nor does it follow from an acceptance of the privilege that the prosecution is never to be permitted to use in evidence self-incriminating statements, documents or other evidence obtained as a result of the exercise of compulsory powers. Examples of such permitted use include the prosecution’s right to obtain documents pursuant to search warrants or samples of breath, blood or urine.
including those alleged to have committed complex corporate frauds. In the instant case, the incriminating material, which the applicant was compelled to provide, furnished a not insignificant part of the evidence against him at the trial, since it contained admissions which must have exerted additional pressure on him to take the witness stand. The use of this evidence was therefore oppressive and substantially impaired Mr Saunders’s ability to defend himself against the criminal charges he faced, thereby depriving him of a fair trial. At the hearing before the Court, the Delegate stressed that even steadfast denials of guilt in answer to incriminating questions can be highly incriminating and very damaging to a defendant. This was so in the present case as the answers were used against him both in the opening and closing speeches and in cross-examination to establish that the answers given to the inspectors could not be believed and that the applicant was dishonest.
d) Amicus curiae 66. Liberty, with reference to various international human rights treaties and the law existing in a number of Contracting Parties, requested the Court to find that Article 6 (art. 6) prevents self-incriminating evidence from being obtained from an individual under threat of judicial sanction and from being admissible in criminal proceedings.
- The Court’s assessment
- The Court first observes that the applicant’s complaint is confined to the use of the statements obtained by the DTI inspectors during the criminal proceedings against him. While an administrative investigation is capable of involving the determination of a "criminal charge" in the light of the Court’s case-law concerning the autonomous meaning of this concept, it has not been suggested in the pleadings before the Court that Article 6 para. 1 (art. 6-1) was applicable to the proceedings conducted by the inspectors or that these proceedings themselves involved the determination of a criminal charge within the meaning of that provision (art. 6-1) (see, inter alia, the Deweer v. Belgium judgment of 27 February 1980, Series A no. 35, pp. 21-24, paras. 42-47). In this respect the Court recalls its judgment in Fayed v. the United Kingdom where it held that the functions performed by the inspectors under section 432 (2) of the Companies Act 1985 were essentially investigative in nature and that they did not adjudicate either in form or in substance. Their purpose was to ascertain and record facts which might subsequently be used as the basis for action by other competent authorities - prosecuting, regulatory, disciplinary or even legislative (judgment of 21 September 1994, Series A no. 294-B, p. 47, para. 61). As stated in that case, a requirement that such a preparatory investigation should be subject to the guarantees of a judicial procedure as set forth in Article 6 para. 1 (art. 6-1) would in practice unduly hamper the effective
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regulation in the public interest of complex financial and commercial activities (ibid., p. 48, para. 62). Accordingly the Court’s sole concern in the present case is with the use made of the relevant statements at the applicant’s criminal trial. 68. The Court recalls that, although not specifically mentioned in Article 6 of the Convention (art. 6), the right to silence and the right not to incriminate oneself are generally recognised international standards which lie at the heart of the notion of a fair procedure under Article 6 (art. 6). Their rationale lies, inter alia, in the protection of the accused against improper compulsion by the authorities thereby contributing to the avoidance of miscarriages of justice and to the fulfilment of the aims of Article 6 (art. 6) (see the above-mentioned John Murray judgment, p. 49, para. 45, and the above-mentioned Funke judgment, p. 22, para. 44). The right not to incriminate oneself, in particular, presupposes that the prosecution in a criminal case seek to prove their case against the accused without resort to evidence obtained through methods of coercion or oppression in defiance of the will of the accused. In this sense the right is closely linked to the presumption of innocence contained in Article 6 para. 2 of the Convention (art. 6-2). 69. The right not to incriminate oneself is primarily concerned, however, with respecting the will of an accused person to remain silent. As commonly understood in the legal systems of the Contracting Parties to the Convention and elsewhere, it does not extend to the use in criminal proceedings of material which may be obtained from the accused through the use of compulsory powers but which has an existence independent of the will of the suspect such as, inter alia, documents acquired pursuant to a warrant, breath, blood and urine samples and bodily tissue for the purpose of DNA testing. In the present case the Court is only called upon to decide whether the use made by the prosecution of the statements obtained from the applicant by the inspectors amounted to an unjustifiable infringement of the right. This question must be examined by the Court in the light of all the circumstances of the case. In particular, it must be determined whether the applicant has been subject to compulsion to give evidence and whether the use made of the resulting testimony at his trial offended the basic principles of a fair procedure inherent in Article 6 para. 1 (art. 6-1) of which the right not to incriminate oneself is a constituent element. 70. It has not been disputed by the Government that the applicant was subject to legal compulsion to give evidence to the inspectors. He was obliged under sections 434 and 436 of the Companies Act 1985 (see paragraphs 48-49 above) to answer the questions put to him by the inspectors in the course of nine lengthy interviews of which seven were admissible as evidence at his trial. A refusal by the applicant to answer the questions put to him could have led to a finding of contempt of court and
Saunders v. the United Kingdom
Vak: Strafrecht 3 (nieuw Form. Straf.) (RGBSR00010)
Universiteit: Rijksuniversiteit Groningen
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