SAUNDERS v. UNITED KINGDOM JUDGMENT
17
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.
63. In the Government’s submission it would be wrong to draw from
the Court’s Funke judgment (referred to at paragraph 60 above) a broad
statement of principle concerning the "right to silence", since the nature of
that right was not defined in the judgment. There can be no absolute rule
implicit in Article 6 (art. 6) that any use of statements obtained under
compulsion automatically rendered criminal proceedings unfair. In this
respect it was necessary to have regard to all the facts of the case including
the many procedural safeguards inherent in the system. For example, at the
stage of the inspectors’ inquiry, injustice was prevented by the facts that the
inspectors were independent and subject to judicial supervision and that the
person questioned was entitled to be legally represented before them and
provided with a transcript of his responses which he could correct or
expand. Moreover, during the course of any subsequent criminal trial, a
defendant who had provided answers to the inspectors under compulsion
was protected by the judge’s powers to exclude such evidence; admissions
which might be unreliable or might have been obtained by oppressive
means had to be excluded and there was a discretion to exclude other
evidence if its admission would have an adverse effect on the fairness of the
proceedings (see paragraphs 51-52 above).
64. The Government further emphasised that, whilst the interests of the
individual should not be overlooked, there was also a public interest in the
honest conduct of companies and in the effective prosecution of those
involved in complex corporate fraud. This latter interest required both that
those under suspicion should be compelled to respond to the questions of
inspectors and that the prosecuting authorities should be able to rely in any
subsequent criminal trial on the responses elicited. In this respect a
distinction could properly be drawn between corporate fraud and other types
of crime, since devices such as complex corporate structures, nominee
companies, complicated financial transactions and false accounting records
could be used to conceal fraudulent misappropriation of corporate funds or
personal responsibility for such misconduct. Frequently the documentary
evidence relating to such transactions would be insufficient for a
prosecution or incomprehensible without the explanations of the individuals
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