The use by the prosecution at an accused's trial for offences of fraud and conspiracy of statements which the accused had been compelled by law to make to Department of Trade and Industry investigators constituted an infringement of the accused's right not to incriminate himself and was accordingly a breach of article 6 of the European Convention on Human Rights, which guarantees the right to a fair trial.
The European Court of Human Rights ruled by 16 votes to 4 that there had been a violation of article 6 of the Convention in the trial of the applicant, Ernest Saunders, and others involved in the "Guinness affair". The court declined to award compensation but awarded him pounds 75,000 in costs and expenses.
Mr Saunders was tried between April 1989 and August 1990 on 15 counts including theft, false accounting and conspiracy. His prosecution followed an investigation by the DTI into the conduct of a battle between Guinness plc, of which Mr Saunders was then chief executive officer, and Argyll plc for the takeover of Distillers plc, which Guinness finally bought in April 1986.
During the DTI investigation, Mr Saunders was required by law, on pain of being fined or imprisoned for contempt of court, to answer questions put to him by the inspectors. At his subsequent trial the prosecution were permitted to use in evidence transcripts of the statements made by him to the DTI inspectors. Mr Saunders was convicted and sentenced to five years' imprisonment. This was reduced on appeal to two and a half years, but save on one count his appeals against conviction were all rejected.
Mr Saunders complained to the European Court of Human Rights that the use at his trial of the DTI material infringed his right against self- incrimination and that his trial was accordingly unfair.
Article 6 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.
The European Court of Human Rights said the right not to incriminate oneself, like the right to silence, was a generally recognised international standard which lay at the heart of the notion of a fair procedure under article 6. The right, which had close links with the presumption of innocence in article 6.2, was primarily concerned with respecting the will of the accused to remain silent. It did not extend to the use in criminal proceedings of material which might be obtained from the accused under legal compulsion but which had an existence independent of the accused's will, such as breath, blood and urine samples.
Whether there had been infringement of the accused's right not to incriminate himself depended on the use made by the prosecution at the trial of the statements which he had been obliged to give the inspectors under pain of sanction. It was irrelevant that they might not have been self- incriminating. The right not to incriminate oneself could not reasonably be confined to admissions of wrongdoing or to directly incriminating remarks, since even neutral evidence might be deployed in support of the prosecution's case.
In this case, the prosecution had used Mr Saunders' statements to the DTI in an incriminating manner, to cast doubt on his honesty and to establish his involvement in an unlawful share support operation. Part of the transcript of his answers to the inspectors had been read out to the jury over a three-day period despite his objections.
Accordingly, there had been an infringement of his right not to incriminate himself. The public interest in combating fraud could not be invoked to justify the use of answers compulsorily obtained in a non-judicial investigation to incriminate him at his trial.
The court declined to make an award for Mr Saunders's pecuniary loss pursuant to article 50 of the Convention, noting that it could not speculate on the question whether the outcome of the trial would have been any different had use not been made of the DTI material by the prosecution, and its finding of a breach of article 6 was not to be taken to suggest this. But the court awarded him pounds 75,000 to cover his costs and expenses in the Strasbourg proceedings.
Paul Magrath, Barrister