John Murray V. UK

AS TO THE ADMISSIBILITY OF

Application No. 18731/91
by John MURRAY
against the United Kingdom

The European Commission of Human Rights sitting in private on
18 January 1994, the following members being present:

MM. C.A. NØRGAARD, President
S. TRECHSEL
F. ERMACORA
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G.H. THUNE
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.C. GEUS
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 16 August 1991 by
John Murray against the United Kingdom and registered on 27 August 1991
under file No. 18731/91;

Having regard to:

– reports provided for in Rule 47 of the Rules of Procedure of the
Commission;

– the observations submitted by the respondent Government on 25
February 1993 and the observations in reply submitted by the
applicant on 7 June 1993;

– the observations submitted by the parties at the oral hearing on
18 January 1994;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is an Irish citizen, born in 1950 and presently
detained in HM Prison The Maze, Belfast. He is represented before the
Commission by Messrs. Madden and Finucane, Solicitors, Belfast.

The facts as submitted by the parties may be summarised as
follows.

The applicant was arrested by police officers at 5.40 pm on
7 January 1990 pursuant to section 14 of the Prevention of Terrorism
(Temporary Provisions) Act 1989. The applicant was cautioned by the
police according to the terms of Article 3 of the Criminal Evidence
(Northern Ireland) Order 1988 (hereafter referred to as the Order), the
relevant part of which provides as follows:

“Circumstances in which inferences may be drawn from accused’s
failure to mention particular facts when questioned, charged,
etc.

3. (1) Where, in any proceedings against a person for an
offence, evidence is given that the accused

(a) at any time before he was charged with the offence, on being
questioned by a constable trying to discover whether or by whom
the offence has been committed, failed to mention any fact relied
on in his defence in those proceedings; or

(b) on being charged with the offence or officially informed that
he might be prosecuted for it, failed to mention any such fact,

being a fact which in the circumstances existing at the time the
accused could reasonably have been expected to mention when so
questioned, charged or informed, as the case may be, paragraph
(2) applies.

(2) Where this paragraph applies

(a) the court, in determining whether to commit the accused for
trial or whether there is a case to answer,

(b) a judge, in deciding whether to grant an application made by
the accused under Article 5 of the Criminal Justice (Serious
Fraud) (Northern Ireland) Order 1988 (application for dismissal
of charge where a case of fraud has been transferred from a
magistrates’ court to the Crown Court under Article 3 of that
Order), and

(c) the court or jury, in determining whether the accused is
guilty of the offence charged,

may

(i) draw such inferences from the failure as appear proper;

(ii) on the basis of such inferences treat the failure as,
or as capable of amounting to, corroboration of any evidence
given against the accused in relation to which the failure
is material.

(3) Subject to any directions by the court, evidence tending to
establish the failure may be given before or after evidence
tending to establish the fact which the accused is alleged to
have failed to mention.”

In response to the police caution the applicant stated, “I have
nothing to say.”

The applicant was taken to Castlereagh Police Office at about
7.00 pm. He refused to give his personal details to the officer opening
the custody record. At 7.05 pm, he was informed of his right to have
a friend or relative notified of his detention but indicated that he
did not require that anyone be so notified. At 7.06 pm, the applicant
indicated that he wished to consult with a solicitor named Mr. Francis
Keenan. At 7.30 pm, the applicant’s access to a solicitor was delayed
on the authority of a Detective Superintendent pursuant to section
15(1) of the Northern Ireland (Emergency Provisions) Act 1987. The
delay was authorised for a period of 48 hours from the time of
detention on the basis that the detective Superintendent had reasonable
grounds to believe that the exercise of the right of access

“..<would> lead to interference with the gathering of information
about the commission, preparation or instigation of acts of
terrorism; or by alerting any person <would> make it more
difficult-

i. to prevent an act of terrorism, or

ii. to secure the apprehension, prosecution or conviction of any
person in connection with the commission, preparation or
instigation of an act of terrorism.”

At 9.27 pm, a police officer saw the applicant in a cell at
Castlereagh Police Office. He further cautioned the applicant pursuant
to Article 6 of the Order, the relevant part of which provides as
follows:

“Inferences from failure or refusal to account for presence at
a particular place

6. (1) Where

(a) a person arrested by a constable was found by him at a place
or about the time the offence for which he was arrested is
alleged to have been committed, and

(b) the constable reasonably believes that the presence of the
person at that place and at that time may be attributable to his
participation in the commission of the offence, and

(c) the constable informs the person that he so believes, and
requests him to account for that presence, and

(d) the person fails or refuses to do so,

then if, in any proceedings against the person for the offence,
evidence of those matters is given, paragraph (2) applies.

(2) Where this paragraph applies

(a) the court, in determining whether to commit the accused for
trial or whether there is a case to answer, and

(b) the court or jury, in determining whether the accused is
guilty of the offence charged, may

(i) draw such inferences from the failure or refusal as
appear proper;

(ii) on the basis of such inferences, treat the failure or
refusal as, or as capable of amounting to, corroboration of
any evidence given against the accused in relation to which
the failure or refusal is material.

(3) Paragraphs (1) and (2) do not apply unless the accused was
told in ordinary language by the constable when making the
request mentioned in paragraph (1)(c) what the effect of this
Article would be if he failed or refused to do so.

(4) This Article does not preclude the drawing of any inference
from the failure or refusal of a person to account for his
presence at a place which could properly be drawn apart from this
Article.”

The police officer served the applicant with a written copy of
Article 6 of the Order. The applicant replied, “Nothing to say.”

At 10.40 pm, the applicant requested consultation with a
different firm of solicitors, Madden and Finucane. The reasons for the
delay in access to a solicitor were reviewed but it was concluded that
they remained valid reasons.

On 8 and 9 January 1990, the applicant was interviewed twelve
times by police detectives at Castlereagh Police Office. Before each
interview the applicant was either cautioned under Article 3 of the
Order or reminded that he was under caution. The applicant maintained
silence throughout these interviews.

When he was able to see his solicitor for the first time at 6.33
pm on 9 January 1990, he was advised to remain silent, which he did
during the following two interviews. His solicitor was not permitted
to be present during these interviews.

The applicant was tried by a single judge, the Lord Chief Justice
of Northern Ireland, sitting without a jury, on 8 May 1991, for several
offences including that of conspiracy to murder, aiding and abetting,
with seven other people, the false imprisonment of a certain Mr. L. and
of belonging to a proscribed organisation ie the Provisional Irish
Republican Army.

The Crown case was that for some time prior to January 1990
Mr. L. had been a member of the Provisional I.R.A. and had also been
giving information about the activities of the Provisional I.R.A. to
the Royal Ulster Constabulary. The Provisional I.R.A. discovered that
Mr. L. was an informer and tricked him into going to a house, 124
Carrigart Avenue, in the Lenadoon district of Belfast, on the evening
of Friday 5 January 1990. Once he was in that house, he was falsely
imprisoned on the orders of the Provisional I.R.A. and was kept captive
in one of the rear bedrooms of that house until the arrival of the
police and the army at the house on the afternoon of Sunday 7 January
1990. In addition to the false imprisonment of Mr. L., the Crown also
made the case that there was a conspiracy to murder him as punishment
for being a police informer. The applicant was one of the people in
the house when the police entered on 7 January and rescued Mr. L.. At
no time did the applicant give any explanation for his presence in that
house.

At the close of the prosecution case, the judge, acting in
accordance with Article 4 of the Order, called upon each of the eight
accused to give evidence in their own defence. The relevant part of
Article 4 of the Order provides as follows:

“Accused to be called upon to give evidence at trial

4. (1) At the trial of any person (other than a child) for an
offence paragraphs (2) to (7) apply unless

(a) the accused’s guilt is not in issue, or

(b) it appears to the court that the physical or mental condition
of the accused makes it undesirable for him to be called upon to
give evidence;

but paragraph (2) does not apply if, before any evidence is
called for the defence, the accused or counsel or a solicitor
representing him informs the court that the accused will give
evidence.

(2) Before any evidence is called for the defence, the court

(a) shall tell the accused that he will be called upon by the
court to give evidence in his own defence, and

(b) shall tell him in ordinary language what the effect of this
Article will be if

(i) when so called upon, he refuses to be sworn;

(ii) having been sworn, without good cause he refuses to
answer any question;

and thereupon the court shall call upon the accused to give
evidence.

(3) If the accused

(a) after being called upon by the court to give evidence in
pursuance of this Article, or after he or counsel or a solicitor
representing him has informed the court that he will give
evidence, refuses to be sworn, or

(b) having been sworn, without good cause refuses to answer any
question, paragraph (4) applies.

(4) The court or jury, in determining whether the accused is
guilty of the offence charged, may

(a) draw such inferences from the refusal as appear proper;

(b) on the basis of such inferences, treat the refusal as, or as
capable of amounting to, corroboration of any evidence given
against the accused in relation to which the refusal is
material.”

Acting on the advice of his solicitor and counsel, the applicant
chose not to give any evidence. No witnesses were called on the
applicant’s behalf. Counsel on his behalf, with some support from the
evidence of a co-accused, submitted, inter alia, that the applicant’s
presence in the house just before the police arrived was recent and
innocent.

In finding the applicant guilty of the sole offence of aiding and
abetting the false imprisonment of L., the judge held as follows:

“I now turn to consider the fifth count charging the false
imprisonment of L. against the accused <the applicant>. For the
reasons which I have already stated, I am satisfied that, as L.
described in his evidence, <the applicant> was at the top of the
stairs pulling the tape out of the cassette after the police
arrived outside the house.

I am also satisfied, for the reasons which I have already stated,
that <the applicant> was in the house for longer than the short
period described by D.M.. I am further satisfied that it is an
irresistible inference that while he was in the house <the
applicant> was in contact with the men holding L. captive and
that he knew that L. was being held a captive. I also draw very
strong inferences against <the applicant> under Article 6 of the
1988 Order by reason of his failure to give an account of his
presence in 124 when cautioned by the police on the evening of
7 January 1990 under Article 6, and I also draw very strong
inferences against <the applicant> under Article 4 of the 1988
Order by reason of his refusal to give evidence in his own
defence when called upon by the Court to do so.

Therefore I find <the applicant> guilty of aiding and abetting
the false imprisonment of L. because, knowing he was being held
captive in the house, he was present in the house concurring in
L. being falsely imprisoned. As Vaughan J. stated in R. v. Young
8C and P 644 at 653, 173 ER 655 at 659 cited with approval by
Cave J. in R. v. Coney (1882) 8 QBD 534 at 541, <the applicant>
was ‘near enough to give <his> aid and to give <his> countenance
and assistance.'”

The applicant was sentenced to eight years’ imprisonment.

The applicant appealed against conviction and sentence to the
Court of Appeal in Northern Ireland on the ground, inter alia, that the
judge had erred in holding that the words of the Article 6 caution
conformed with the requirement that an accused be told in ordinary
language what the effect would be if he failed or refused to account
for his presence at the scene of a crime.

In its judgment of 7 July 1992, the Court dismissed the
applicant’s appeal. It held, inter alia:

“We consider that there was a formidable case against <the
applicant>. He was the only one of the accused whom <L.> observed
and identified as playing a positive part in the activities
touching his captivity. <L.>’s evidence therefore called for an
answer. No answer was forthcoming of any kind to the police or
throughout the length of his trial. It was inevitable that the
judge would draw “very strong inferences” against him.”

COMPLAINTS

The applicant complains that he is the victim of a violation of
Article 6 paras. 1 and 2 and Article 14 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 16 August 1991 and registered
on 27 August 1991.

On 10 September 1992, the Commission decided to communicate the
application to the Government and to ask for written observations on
the admissibility and merits of the application.

The Government’s observations were submitted on 25 February 1993
after two extensions in the time-limit fixed for this purpose and the
applicant’s observations in reply were submitted on 7 June 1993 after
one extension in the time-limit.

On 8 April 1993, the Commission decided to grant legal aid to
the applicant.

On 30 August 1993, the Commission decided to invite the parties
to an oral hearing.

At the hearing, which took place on 18 January 1994, the parties
were represented as follows:

For the Government

Mr. H. Llewellyn Agent
Mr. P. Coghlin Q.C. Counsel
Mr. J. Eadie Counsel

Three advisers were also present.

For the applicant

Mr. S. Treacy Counsel
Mr. K. Winters Solicitor, Madden and Finucane
Ms. K. Quinlivan Adviser
Mr. L. McStay Adviser

THE LAW

The applicant complains that he was deprived of the right of
silence in the criminal proceedings brought against him as a result of
the operation of the provisions of the Criminal Evidence (Northern
Ireland) Order 1988 which permitted a judge, sitting without a jury,
to draw inferences from his failure to answer police questions and from
his failure to give evidence in his own defence during the trial. He
further complains that he was deprived of access to his solicitor in
the first 48 hours of his detention and that his solicitor was not
permitted to be present during interviews which took place after that
initial period. The latter was in conformity with the practice in
Northern Ireland, which differs from that in England and Wales. The
applicant invokes Article 6 paras. 1 and 2 and Article 14
(Art. 6-1, 6-2, 14) of the Convention, which provide as relevant:

Article 6 para. 1 (Art. 6-1):

“In the determination of his civil rights and obligations or 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…”

Article 6 para. 2 (Art. 6-2):

“Everyone charged with a criminal offence shall be presumed
innocent until proved guilty according to law.”

Article 14 (Art. 14):

“The enjoyment of the rights and freedoms set forth in this
Convention shall be secured without discrimination on any ground
such as sex, race, colour, language, religion, political or other
opinion, national or social origin, association with a national
minority, property, birth or other status.”

The Government submit that the provisions of the 1988 Order did
not operate to deprive the applicant either of a fair hearing contrary
to Article 6 para. 1 (Art. 6-1) or of the presumption of innocence
contrary Article 6 para. 2 (Art. 6-2). They refer to the safeguards
provided in the Order: no inference may be drawn unless the
suspect/accused has been warned in advance of the possible effect;
before any inference is drawn, the prosecution must have established
a prima facie case against the accused; the judge has a discretion
whether to draw an inference and is limited to drawing only such
inferences as may be proper. The Order merely allows the trier of fact
to draw such inferences as common sense dictates. In the present case,
there was a formidable case against the applicant which called for
evidence from the applicant if there was an innocent explanation for
his conduct. The burden of proof remained throughout on the
prosecution.

As regards the denial of access by the applicant to his solicitor
for 48 hours, the Government contend that this delay did not
disadvantage the applicant in the conduct of his defence and therefore
discloses no violation of Article 6 (Art. 6) of the Convention. Since
the police have similar powers to delay access in England and Wales,
they submit that there is no discrimination in this respect within the
meaning of Article 14 (Art. 14) of the Convention.

As regards the refusal of permission to the applicant’s solicitor
to be present during his interviews with the police, the Government
state that this too did not affect the conduct of the applicant’s
defence and disclosed no violation of Article 6 (Art. 6) of the
Convention. The difference in this respect between the position in
England and Wales and that in Northern Ireland, based as it was solely
on the geographical location at which a person was arrested and
detained, did not amount to discriminatory treatment within the meaning
of Article 14 (Art. 14) of the Convention.

The applicant submits that the 1988 Order, which permits
inferences to be drawn from the failure of an accused to answer police
questions or to give evidence, and the reliance placed upon it by the
trial judge in the instant case, violate Article 6 para. 1 (Art. 6-1)
of the Convention. The very strong inferences drawn by the trial judge
in the applicant’s case played a crucial role in his conviction. It is
submitted that it is a generally recognised principle of international
law that an accused person cannot be required to incriminate himself,
that Article 6 (Art. 6) of the Convention enshrines this principle, and
that the drawing of an incriminating inference from an accused’s
failure to give evidence infringes his right to a fair trial.

The applicant also submits that the drawing of an incriminating
inference from the failure of an accused person to give evidence has
the effect of placing the burden of proof on an accused and is
manifestly inconsistent with the presumption of innocence guaranteed
in Article 6 para. 2 (Art. 6-2) of the Convention. Further, the denial
of access by the applicant to his solicitor for 48 hours and the
discriminatory practice of not permitting solicitors to be present at
any stage while a person arrested under prevention of terrorism
provisions is being interviewed, violates Article 6 (Art. 6) either
alone or read in conjunction with Article 14 (Art. 6+14) of the
Convention. The discriminatory element derives, inter alia, from the
fact that in England and Wales, contrary to the practice in Northern
Ireland, all detained persons, including those detained under
prevention of terrorism legislation, are permitted to have their legal
representative present during the police interviews.

The Commission has taken cognizance of the submissions of the
parties. It considers that the applicant’s complaints raise serious
issues of fact and law under the Convention, the determination of which
should depend on an examination of the merits. It follows that the
application cannot be dismissed as manifestly ill-founded. No other
ground for declaring it inadmissible has been established.

For these reasons, the Commission by a majority

DECLARES THE APPLICATION ADMISSIBLE, without prejudging the
merits.

Secretary to the Commission President of the Commission

(H.C. KRUGER) (C.A. NØRGAARD)