44 SAUNDERS v. UNITED KINGDOM JUDGMENT DISSENTING OPINION OF JUDGE MARTENS, JOINED BY JUDGE KURIS inspect correspondence and files, to verify books and accounts, but also to require a certain degree of active cooperation20 by those under investigation, to be informed of passwords and other secret information, to secure the handing over of documents and replies to questions. Normally, such rights are enforceable by threat of punishment. Hence - and because, obviously, such audits may imperceptibly evolve into a criminal investigation - there is an inherent conflict with the right to silence and the privilege against self-incrimination. 18. This conflict may be solved in various ways and I think that we should realise that, even in a given legal system, different solutions may coexist. Legislatures whose starting-point for such audits is the idea that ascertaining the truth is the weightier interest and, consequently, deny those under investigation the right to silence and the privilege against self-incrimination by making it an offence not to answer questions or otherwise to refuse cooperation, have several options concerning the use in evidence of the material thus acquired in subsequent criminal proceedings against those who have been under investigation. Sometimes it is provided that such material cannot be used in evidence at all; sometimes, that such material may only be used in evidence in case of a prosecution for perjury; sometimes it may also be used when a person who has been under investigation, in criminal proceedings against him, gives evidence which is incompatible with the material in question; sometimes the material may be used in evidence unless the trial court finds that under the circumstances such use would be unfair. The present case is an example of the latter type of solution: whilst subsections (1) and (3) of section 434 of the 1985 Act21 leave no doubt that this provision concerns the type of investigation discussed in paragraph 16 above, subsection (5) of that provision explicitly allows the use in evidence of answers given to the DTI inspectors. 19. It follows that the main issue in the present case is whether subsection (5) of section 434 of the 1985 Act is incompatible per se with the right to silence or the privilege against self-incrimination. In view of what I have said in paragraph 17 above on audits it is difficult to deny that this issue is of general importance. The more so since holding that pp. 37 et seq. The introductory paragraph of this very helpful article shows that the problem has been studied within the framework of the OECD, the EU and the UN: the relevant reports and recommendations are quoted. 20 See Chapter III of the appendix to Recommendation No. R (95) 13 referred to in the previous note. Paragraph 10 of that chapter stipulates that "the investigating authorities should have the power to order persons who have data in a computer system under their control to provide all necessary information to enable access to a computer system and the data therein". Paragraph 10 refers to the obligation to cooperate in a criminal procedure "subject to legal privileges or protection". I quote it here since it demonstrates the necessity of a specific duty of cooperation with regard to modern technology. 21 See paragraph 48 of the Court's judgment.