SAUNDERS v. UNITED KINGDOM JUDGMENT DISSENTING OPINION OF JUDGE MARTENS, JOINED BY JUDGE KURIS 45 subsection (5) of section 434 of the 1985 Act is incompatible per se with the right to silence or the privilege against self-incrimination may, as a matter of inherent logic, entail that (since no use may be made of the answers of those who have been under investigation by DTI inspectors) the very same prohibition affects facts discovered in consequence of such answers, such as the existence of a foreign bank account or of a secret file! III - DECIDING THE ISSUE(S) 20. In trying to decide the main issue my starting-point is that I accept that the United Kingdom legislature - which in such matters should be allowed a certain margin of appreciation - could reasonably conclude that, where there are serious rumours of fraudulent management, the public interest of protecting society against such fraud demands that the truth comes out and that this justifies the system of inquiry as set up under the 1985 Act, a system under which officers and agents of the investigated company are obliged to cooperate with the DTI inspectors as laid down in section 434 of that Act, without enjoying the immunities under discussion. 21. A first point to make is that subsection (5) of section 434 of the 1985 Act presupposes that the answers are incriminating: it allows their use in evidence "against him". A second point to make is that, although at first blush it may appear that what is at stake is not the right to silence, but rather the privilege against self-incrimination, further analysis suggests that both rights are equally implied: on this view what is in issue is whether it is permissible to use in evidence answers obtained in an investigation in respect of which the legislator has deliberately set aside both the right to silence and the privilege against self-incrimination (see paragraphs 17 and 18 above and the text of sections 434 and 436 of the 1985 Act). 22. I confess that I have hesitated somewhat in deciding the main issue. However, in the end I have come to the conclusion that I had not been persuaded that subsection (5) of section 434 of the 1985 Act is incompatible per se with the right to silence or the - broader - privilege against self-incrimination. It is only fair to say that in this decision the serious consequences of the latter view indicated at the end of paragraph 19 above have played their part. As already indicated in paragraphs 7 to 12 above, I see neither right as absolute and I therefore fundamentally disagree with the sweeping statement in paragraph 74 of the Court’s judgment according to which: "The public interest cannot be invoked to justify the use of answers compulsorily obtained in a non-judicial investigation to incriminate the accused during the trial proceedings." I accept that at the trial of a driver accused of driving when intoxicated the outcome of a breathalyser test to which he has been compelled may be