SAUNDERS v. UNITED KINGDOM JUDGMENT CONCURRING OPINION OF JUDGE MORENILLA 31 CONCURRING OPINION OF JUDGE MORENILLA I share the conclusion of the majority that the applicant was denied a right to a fair trial on account of the fact that his right not to incriminate himself was infringed. However, in reaching this conclusion, the majority should not have sought to ascertain the use, extensive or otherwise, which was made of the applicant’s statements during the criminal trial. I cannot subscribe to such an approach. For me, the mere fact that the applicant’s statements had been obtained under compulsion and were considered by the prosecution to be incriminating and thus capable of reinforcing their case are sufficient reasons per se to have excluded the statements at the trial. The applicant was compelled to make the statements in the proceedings before the DTI inspectors. Had he refused to testify in the administrative proceedings he would have exposed himself to the sanctions under section 436 of the Companies Act 1985 (see paragraph 49 of the judgment). He was thus under statutory compulsion to contribute actively to the preparation of the case which was subsequently brought against him. In such circumstances, it is my opinion that there is no scope for examining either the weight to be attached to the incriminating material so furnished or the use made of it at the trial. The very fact that such statements were admitted in evidence against him undermined the very essence of the applicant’s right not to incriminate himself, a right which the majority have properly considered to be at the heart of a fair trial (see paragraph 68 of the judgment). The majority refer at paragraph 67 of the judgment to the Court’s earlier judgment in Fayed v. the United Kingdom (21 September 1994, Series A no. 294-B) where it is stated that the purpose of investigations such as the one at issue "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". I should like to stress that this conclusion must be treated with particular caution, especially as regards prosecutions. While agreeing with the majority that statements made under compulsion by an individual during such investigations may be used as the basis for action by, inter alia, the prosecution, I would emphasise that this does not mean that they may be admitted as evidence against that individual in any subsequent criminal proceedings.