John Murray V. UK

EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 18731/91

John MURRAY

against

the United Kingdom

REPORT OF THE COMMISSION

(adopted on 27 June 1994)

TABLE OF CONTENTS

page

I. INTRODUCTION
(paras. 1-18) . . . . . . . . . . . . . . . . . . . . . . . . 1

A. The application
(paras. 2-4). . . . . . . . . . . . . . . . . . . . . . . 1

B. The proceedings
(paras. 5-13) . . . . . . . . . . . . . . . . . . . . . . 1

C. The present Report
(paras. 14-18). . . . . . . . . . . . . . . . . . . . . . 2

II. ESTABLISHMENT OF THE FACTS
(paras. 19-43). . . . . . . . . . . . . . . . . . . . . . . . 3

A. Particular circumstances of the case
(paras. 19-35). . . . . . . . . . . . . . . . . . . . . . 3

B. Relevant domestic law and practice
(paras. 36-43). . . . . . . . . . . . . . . . . . . . . . 6

III. OPINION OF THE COMMISSION
(paras. 44-82). . . . . . . . . . . . . . . . . . . . . . . .11

A. Complaints declared admissible
(para. 44). . . . . . . . . . . . . . . . . . . . . . . .11

B. Points at issue
(para. 45). . . . . . . . . . . . . . . . . . . . . . . .11

C. Article 6 of the Convention
(paras. 46-74). . . . . . . . . . . . . . . . . . . . . .11

1. The right to silence
(paras. 47-65) . . . . . . . . . . . . . . . . . . . . .12

Conclusion
(para. 66). . . . . . . . . . . . . . . . . . . . . .15

2. Access to a solicitor
(paras. 67-73) . . . . . . . . . . . . . . . . . . . . .16

Conclusion
(para. 74). . . . . . . . . . . . . . . . . . . . . .17

D. Article 14 of the Convention
(paras. 75-79). . . . . . . . . . . . . . . . . . . . . .17

Conclusion
(para. 79). . . . . . . . . . . . . . . . . . . . . .18

Recapitulation
(paras. 80-82). . . . . . . . . . . . . . . . . . . . . .18

CONCURRING OPINION OF MR. H. G. SCHERMERS . . . . . . . . . . . . .19

PARTLY CONCURRING, PARTLY DISSENTING OPINION OF MR. E. BUSUTTIL . .20

PARTLY CONCURRING, PARTLY DISSENTING OPINION OF MR. N. BRATZA . . .23

PARTLY DISSENTING OPINION OF MR. F. MARTINEZ. . . . . . . . . . . .26

DISSENTING OPINION OF MR. L. LOUCAIDES. . . . . . . . . . . . . . .27

APPENDIX I HISTORY OF THE PROCEEDINGS . . . . . . . . . . . .28

APPENDIX II DECISION ON ADMISSIBILITY. . . . . . . . . . . . 29

I. INTRODUCTION

1. The following is an outline of the case as submitted to the
European Commission of Human Rights, and of the procedure before the
Commission.

A. The application

2. The applicant is John Murray, a British citizen born in 1950 and
currently serving a sentence of imprisonment in HM Prison Maze,
Northern Ireland. He is represented by Messrs. Madden and Finucane,
solicitors practising in Belfast.

3. The application is directed against the United Kingdom. The
respondent Government are represented by Mr. Iain Christie as Agent,
from the Foreign and Commonwealth Office.

4. The case concerns the complaints of the applicant that he was
deprived of the right to silence in the criminal proceedings brought
against him, 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 applicant alleges discriminatory treatment as
regards the latter aspect of case in that the practice concerning
access to solicitors differs between Northern Ireland and England and
Wales. The application raises issues under Article 6 paras. 1 and 2 and
Article 14 of the Convention.

B. The proceedings

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

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

7. The Government submitted their written observations on
25 February 1993. The applicant submitted his written observations in
reply on 7 June 1993.

8. On 30 August 1993, the Commission decided to invite the parties
to an oral hearing on the admissibility and merits.

9. At the hearing which was held on 18 January 1994, the Government
were represented by Mr. H. Llewellyn, as Agent, Mr. P. Coghlin Q.C.,
Counsel, Mr. J. Eadie, Counsel, and three advisers. The applicant was
represented by Mr. S. Treacy, Counsel, Mr. K. Winters, Solicitor, and
Ms. K. Quinlivan and Mr. L. McStay as advisers.

10. On 18 January 1994, the Commission declared the application
admissible.

11. The parties were then invited to submit any additional
observations on the merits of the application.

12. On 24 February 1994, the applicant submitted further
observations.

13. After declaring the case admissible, the Commission, acting in
accordance with Article 28 para. 1 (b) of the Convention, placed itself
at the disposal of the parties with a view to securing a friendly
settlement of the case. In the light of the parties’ reactions, the
Commission now finds that there is no basis on which a friendly
settlement can be effected.

C. The present Report

14. The present Report has been drawn up by the Commission in
pursuance of Article 31 of the Convention and after deliberations and
votes, the following members being present:

MM. C.A. NØRGAARD, President
S. TRECHSEL
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

15. The text of the Report was adopted by the Commission on
27 June 1994 and is now transmitted to the Committee of Ministers in
accordance with Article 31 para. 2 of the Convention.

16. The purpose of the Report, pursuant to Article 31 para. 1 of the
Convention, is

1) to establish the facts, and

2) to state an opinion as to whether the facts found disclose
a breach by the State concerned of its obligations under
the Convention.

17. A schedule setting out the history of the proceedings before the
Commission is attached hereto as Appendix I and the Commission’s
decision on the admissibility of the application as Appendix II.

18. The full text of the parties’ submissions, together with the
documents lodged as exhibits, are held in the archives of the
Commission.

II. ESTABLISHMENT OF THE FACTS

A. Particular circumstances of the case

19. 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),
which provides for circumstances in which inferences may be drawn from
an accused’s failure to mention particular facts when questioned or
charged (see para. 36 below).

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

21. 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,
inter alia, interfere with the gathering of information about the
commission of acts of terrorism or make it more difficult to prevent
an act of terrorism (see paras. 41-42 below).

22. 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 (see para. 37 below) which provides for
inferences to be drawn from failure or refusal to account for presence
at a particular place.

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

24. 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.

25. During 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.

26. 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.

27. 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 (I.R.A.).

28. 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.

29. 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. According to L., he was forced under
threat of being killed to make a confession to his captors that he was
an informer and required to read out a written confession which was
taped. The applicant was one of the people in the house when the police
entered on 7 January and rescued Mr. L. The latter stated that on the
arrival of the police he saw the applicant pulling tape out of a
cassette. The police gave evidence that on their arrival the applicant
was at the top of the stairs while the other occupants of the house
were in a downstairs room and that, on a search of the house, tangled
tape was discovered in an upstairs bathroom. At no time did the
applicant give any explanation for his presence in that house.

30. 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. Article 4 provides that
where an accused does not then give evidence, the court or jury, in
determining whether the accused is guilty of the offence charged, may
draw such inferences from the refusal as appear proper or 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 (see para. 38 below).

31. 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.

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

“I accept the submissions of counsel for the accused that as
demonstrated by his replies in cross-examination, L. is a man who
is fully prepared to lie on oath to advance his own interests and
is a man of no moral worth whatever. I, therefore, accept the
further submissions of counsel for the accused that, unless his
evidence were confirmed by other evidence, a court should not act
on his evidence, particularly against accused persons in a
criminal trial…

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.'”

33. The applicant was sentenced to eight years’ imprisonment.

34. 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.

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

“…to suggest, with respect, that <the applicant> went into the
house just as the police were arriving outside, immediately went
upstairs, attempted to destroy a tape and then walked downstairs,
and that this was the sum of his time and activity in the house
defies common sense…

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.”

B. Relevant domestic law and practice

Provisions governing inferences which may be drawn from an
accused’s silence

36. Article 3 of the Criminal Evidence (Northern Ireland) Order 1988
(hereafter referred to as the Order) provides as relevant:

“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.”

37. Article 6 of the Order provides as relevant:

“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.”

38. Article 4 of the Order provides as relevant:

“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.”

39. In the case of R. v. Kevin Sean Murray, the Court of Appeal in
Northern Ireland were called on to consider the effect of Article 4.
On 25 October 1991, the Court of Appeal held inter alia :

“The right of the court under Article 4 to draw inferences as
appear proper arises once the Crown has established a prima facie
case and does not require that the Crown case constituted by the
evidence should be `on the brink’ of proving guilt or should
create a situation which at common law would be regarded as
`confession and avoidance’ situation. But whether the court will
draw inferences will depend upon the circumstances of the
particular case and, if inferences are drawn, the strength of
those inferences will also depend upon the particular
circumstances of the case.

There may be cases where, despite the refusal of the accused to
give evidence when called upon by the court to do so pursuant to
Article 4, the court may think it inappropriate to draw any
inferences against him. Moreover, before convicting the court,
having regard to the evidence adduced by the Crown and to the
inferences (if any) which it draws under Article 4, must always
be satisfied that the Crown has discharged the burden of proving
that the accused is guilty beyond a reasonable doubt. …

The refusal of the accused to give evidence on his own behalf
does not in itself indicate guilt. Under Article 4 it would be
improper for the court to draw the bare inference that because
the accused refused to give evidence in his onw defence he was
therefore guilty. But where commonsense permits it, it is proper
in an appropriate case for the court to draw the inference from
the refusal of the accused to give evidence that there is no
reasonable possibility of an innocent explanation to rebut the
prima facie case established by the evidence adduced by the
Crown, and for the drawing of this inference to lead on to the
conclusion, after all the evidence in the case has been
considered, that the accused is guilty.”

40. Lord Slynn in the leading judgment of the House of Lords given
on 29 October 1992 stated:

“The accused cannot be compelled to give evidence but he must
risk the consequences if he does not do so. Those consequences
are not simply as the appellant contends, that specific
inferences may be drawn from specific facts. They include in a
proper case the drawing of an inference that the accused is
guilty of the events with which he is charged.

This does not mean that the court can conclude simply because the
accused does not give evidence that he is guilty. In the first
place the prosecutor must establish a prima facie case – a case
for him to answer. In the second place in determining whether the
accused is guilty the judge or jury can draw only `such
inferences from the refusal as appear proper’. As Lord Diplock
said in Haw Tua Tau v. the Public Prosecutor at p. 153B:

`What inferences are proper to be drawn from an accused’s
refusal to give evidence depend upon the circumstances of
the particular case, and is a question to be decided by
applying ordinary commonsense.’

There must thus be some basis derived from the circumstances
which justify the inference.

If there is no prima facie case shown by the prosecution there
is no case to answer. Equally if parts of the prosecution had so
little evidential value that they called for no answer, a failure
to deal with those specific matters cannot justify an inference
of guilt.

On the other hand if aspects of the evidence taken alone or in
combination with other facts clearly call for an explanation
which the accused ought to be in a position to give, if an
explanation exists, then a failure to give any explanation may
as a matter of common sense allow the drawing of an inference
that there is no explanation and that the accused is guilty…”

Provisions governing access to a solicitor

41. Section 15 of the Northern Ireland (Emergency Provisions) Act
1987 provides as relevant:

“15 Right of access to legal advice

(1) A person who is detained under the terrorism provisions and
is being held in police custody shall be entitled, if he so
requests, to consult a solicitor privately…

(4) If a person makes such a request, he must be permitted to
consult a solicitor as soon as is practicable except to the
extent that any delay is permitted by this section…

(8) An officer may only authorise a delay in complying with a
request under subsection (1) where he has reasonable grounds for
believing that the exercise of the right conferred by that
subsection at the time when the detained person desires to
exercise it –

(d) will lead to interference with the gathering of
information about the commission, preparation or
instigation of acts of terrorism; or

(e) by alerting any person, will 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.”

42. The delay must be authorised by a police officer of at least the
rank of superintendent (sub-section (5)(a) and the detained person must
be told the reason for the delay (subsection (7)). The maximum delay
is 48 hours.

43. The courts in Northern Ireland have taken the view that the
provisions of the 1988 Order should not be read subject to section 15
of the 1987 Act above. In the case of R. v. Dermott Quinn, the trial
judge in his judgment of 23 December 1991 rejected a submission to the
effect that an adverse inference under Article 3 of the 1988 Order
should not be drawn where the accused had asked for access to his
solicitor but been interviewed by the police before his solicitor
arrived to advise him. He noted that the 1988 Order had come into force
after section 15 of the 1987 Act and considered that Parliament had not
intended that an inference dictated by common sense which was permitted
by Article 3 of the 1988 Order should not be drawn because of the right
to access to legal advice given by section 15. In its judgment of
17 September 1993, the Court of Appeal in Northern Ireland upheld the
trial judge’s ruling, finding no unfairness in the circumstances of the
case in drawing an adverse inference in respect of the accused’s
failure to respond to questions by the police before the receipt of
legal advice from his solicitor. In rejecting the applicant’s
application for leave to appeal to the House of Lords, it commented
that a breach of section 15 might in certain circumstances allow the
trial judge in his discretion to refuse to draw an adverse inference
under Article 3 of the 1988 Order.

III. OPINION OF THE COMMISSION

A. Complaints declared admissible

44. The Commission has declared admissible the applicant’s complaints
that he was deprived of the right to silence in the criminal
proceedings brought against him; that he was denied access to his
solicitor for 48 hours after arrest and subsequent to that time his
solicitor was not allowed to attend the applicant’s interviews with the
police; and that the practice in Northern Ireland of excluding
solicitors from interviews, which differs from that followed in England
and Wales, is discriminatory.

B. Points at issue

45. The issues to be determined are:

– whether there has been a violation of Article 6 para. 1
(Art. 6-1) and/or para. 2 (Art. 6-2) as regards the applicant’s
right to silence;

– whether there has been a violation of Article 6 para. 1 in
conjunction with Article 6 para. 3 (c) (Art. 6-1+6-3-c) of the
Convention as regards the applicant’s lack of access to a
solicitor;

– whether there has been discrimination contrary to Article 14
in conjunction with Article 6 (Art. 14+6) in the Convention.

C. Article 6 (Art. 6) of the Convention

46. The provisions of Article 6 (Art. 6) relevant to the examination
of this application provide as relevant:

Article 6 para. 1 (Art. 6-1) of the Convention:

“In the determination 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 6 para. 3 (c) (Art. 6-3-c):

“3. Everyone charged with a criminal offence has the following
minimum rights:

c. to defend himself in person or through legal
assistance of his own choosing or, if he has not sufficient
means to pay for legal assistance, to be given it free when
the interests of justice so require;”

1. The right to silence

47. 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.

48. 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.

49. 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 to 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, in the Government’s submission,
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. Furthermore, the burden of proof
remained throughout on the prosecution.

50. The Commission observes that the right to silence is not
expressly guaranteed in the provisions of Article 6 (Art. 6) of the
Convention.

51. In the case of Funke (Eur. Court H.R., Funke judgment of
25 February 1993, Series A no. 256-A, p. 22, para. 44), the Court held,
in the context of a prosecution of an applicant for refusing to
disclose incriminating documents at the request of the customs
authorities, that the “special features of customs law … cannot
justify such an infringement of the right of anyone ‘charged with a
criminal offence’, within the meaning of this expression in Article 6
(Art. 6), to remain silent and not to contribute to incriminating
himself”.

52. The Court appears in the above passage to find that the right to
silence and the privilege against self-incrimination are an inherent
part of the protection given to an accused under Article 6 para. 1
(Art. 6-1).

53. In the case of Saunders (No. 19187/91, Comm. Rep. 10.5.94), the
Commission found a violation of Article 6 para. 1 (Art. 6-1) where the
applicant had been compelled under threat of penalty to make
incriminating statements to Department of Trade and Industry Inspectors
and that information given to them had been used against him in a
subsequent criminal prosecution. It considered (at para. 72):

“In the Commission’s opinion, the privilege against self-
incrimination is an important element in safeguarding an accused
from oppression and coercion during criminal proceedings. The
very basis of a fair trial presupposes that the accused is
afforded the opportunity of defending himself against the charges
brought against him. The position of the defence is undermined
if the accused is under compulsion, or has been compelled, to
incriminate himself. The privilege against self-incrimination is
also closely allied to the principle of presumption of innocence
protected in Article 6 para. 2 (Art. 6-2) of the Convention in
that it reflects the expectation that the State bear the general
burden of establishing the guilt of an accused, in which process
the accused is entitled not to be required to furnish any
involuntary assistance by way of confession.”

54. The Government argue that there is a very clear and sharp
distinction between the circumstances in which a person is forced,
subject to a penalty by fine or imprisonment, to provide incriminating
information and the situation where a judge exercises a discretionary
power to draw inferences. In the present case, they submit that the
applicant was not deprived of his right to silence, being entitled to
remain silent and facing no penalty for doing so.

55. The applicant submits that the right to silence conferred on an
accused becomes worthless if the exercise of the right constitutes
evidence against him, as it did in this case. He adopts the
observations of Amnesty International in its paper concerning the right
to silence, where it is argued, inter alia:

“Moreover a system which permits such compulsion – and permitting
adverse inferences to be drawn is an effective means of
compulsion – is also inconsistent with the right not to be
compelled to testify against oneself or to confess guilt because
the accused is left with no reasonable choice between silence –
which will be taken as testimony against oneself – and
testifying.” (Fair Trial Concerns in Northern Ireland : the Right
of Silence, AI Index: EUR 45/02/92)

56. While the Commission in the Saunders case (loc. cit.) found a
violation, it agreed with the Government’s argument to the extent that
it accepted that the right to silence may not be unqualified. The
essential issue under Article 6 para. 1 (Art. 6-1) remains, in the
Commission’s view, whether an applicant received a fair trial. Whether
a particular applicant has been subject to compulsion to incriminate
himself in such a way as to render the criminal proceedings unfair or
as to deprive him of the presumption of innocence will depend on an
assessment of the circumstances of the case as a whole.

57. In the present case, the Commission recalls that the applicant
did not make any statements to the police and that he did not give
evidence in court. It is therefore apparent that the applicant
exercised his right of silence and, unlike the applicant in the
Saunders case (loc. cit.) did not provide any incriminating evidence
to be used against himself. No penalty was imposed on the applicant for
exercising that right. The applicant was however under indirect
pressure to give evidence as a result of the threat of the adverse
inferences which could be drawn and which might contribute towards
securing his conviction. The Commission must therefore examine the role
which adverse inferences played in the criminal proceedings brought
against the applicant. In this examination it considers that the issues
arising as regards any effects on fairness or the presumption of
innocence represent aspects of the same complaint that are so closely
connected that they cannot usefully be separated. It will therefore
consider both aspects together.

58. The Commission notes that, in convicting the applicant, the trial
judge drew “very strong inferences” from the applicant’s failure to
give an account to the police of his presence in the house where L. was
imprisoned (pursuant to Article 6 of the Order) and also from his
refusal to give evidence in his own defence when called upon by the
Court to do so (pursuant to Article 4 of the Order). The inferences
were however not the sole evidence against the applicant. Inferences
from a failure to give explanations or evidence in court only become
permissible under the Order when there is a prima facie case, ie. the
prosecution has submitted material which might lead to the conviction
of the accused. It is apparent that, if the prosecution fails to make
such a case to the court’s satisfaction, the question of inferences
will never arise. Moreover the Commission is satisfied that the burden
of proof remains on the prosecution throughout to prove an accused’s
guilt beyond a reasonable doubt. However, where a prima facie case has
been presented to the court, certain conclusions may always be drawn
from the failure of the accused to rebut in defence the evidence
against him.

59. Further, the Commission notes that a judge is not required to
draw inferences and may only draw such inferences, and such degree of
inferences, as may be proper. In the context of Northern Ireland where
judges sit without a jury, a judge gives a reasoned judgment as to the
basis on which he decides to draw adverse inferences and the weight
which he gives them. Whether he has properly exercised his discretion
may then be examined on appeal by the Court of Appeal in Northern
Ireland.

60. In the present case, the Commission recalls that, in accordance
with the requirements of the Order, the applicant was warned in effect
that there was a prima facie case against him, ie. a basis on which he
could be convicted, and that, if he did not answer it, inferences might
then be drawn. The Commission notes that there was evidence against the
applicant in the testimony of L. as to the applicant’s involvement and
in the statements of the police who had found the applicant at the top
of the stairs in the house and in the mangled tape in the bathroom
nearby. Both the trial judge and the Court of Appeal considered that
this constituted a formidable case against the applicant in relation
to the charge of aiding and abetting the false imprisonment of L. The
applicant however did not give evidence in court to counter the
prosecution case. The Commission finds that the adverse inferences
drawn against him as a result were a formal expression of the
inevitable doubt that no innocent explanation for conduct may exist
where an accused, against whom considerable suspicion already lies,
fails to offer any innocent explanation.

61. It is submitted on behalf of the applicant that he was advised
to remain silent both in the police detention and in the court. By the
time the solicitor was permitted access to the applicant, the applicant
had already failed to respond to the Article 6 caution and therefore
if he had given a statement to the police it would still have been
possible for inferences to be drawn from the earlier silence. Further
it is stated that the solicitor was also motivated to give the advice
to remain silent since he could not be present to safeguard the
applicant’s position during the following interviews. As to the
applicant’s remaining silent in court, the applicant submits that since
he had been silent in police detention this would have furnished
grounds if he gave evidence in court for Article 3 inferences to come
into play, ie. failure to mention facts which were later relied on in
his defence. On this view the applicant’s position was irrevocably
prejudiced from his initial silence when cautioned by the police in the
first hours of his detention.

62. There is no suggestion in the present case however that the
applicant failed to understand the significance of the warnings given
to him pursuant to the 1988 Order before he was advised by his
solicitor. The caution under Article 6 is also subject to the
limitation that it may only be given where a police officer has
reasonable belief that the presence of a person at a particular place
or at a particular time may be attributable to his participation in the
offence alleged to have been committed there. In light of the
applicant’s presence in a house where a suspected I.R.A. informer was
being held prisoner and interrogated, the Commission does not consider
that the application of this provision to the applicant was arbitrary
or unreasonable. To the extent that the applicant complains of the
restrictions of his access to his solicitor during his detention by the
police and the way this impinged on his defence, the Commission
proposes to examine this issue separately (see paras. 67-73 below).

63. The Commission has also considered the significance of the fact
that the applicant would, if he had given evidence in his defence, have
been required to do so on oath. It appears from the submissions of the
parties that a conviction for perjury if an accused lied rather than
incriminated himself would be possible – one example of a prosecution
has been supplied to the Commission by the applicant. However this case
concerned an exceptional situation where both the accused and a police
officer were involved in giving alleged perjured testimony to the court
and were also facing charges of conspiracy to pervert the course of
justice. It has not been established before the Commission that the
risk of a prosecution for perjury in respect of the evidence given by
the accused in his own defence is a real or significant one. The
situation is therefore in essence not very different from that which
obtains in other countries where the accused may not testify on oath
and where his refusal to answer questions or to account for certain
facts may be an important element in the evaluation of the evidence
against him. In any case, the Commission does not find that the conduct
of the applicant in the present case with regard to his decision not
to give evidence in court was influenced by any fear of prosecution.

64. The Commission is of the opinion that the provisions of the 1988
Order constitute a formalised system which aims at allowing common
sense implications to play an open role in the assessment of evidence.
The Commission finds no indication on the facts of this case that it
deprived the applicant of the right to silence or that the consequences
which flowed from his exercise of that right were unfair.

65. Consequently, the Commission finds that the applicant was not
deprived of a fair trial contrary to the requirements of Article 6
para. 1 (Art. 6-1) of the Convention nor that his right to presumption
of innocence was violated contrary to Article 6 para. 2 (Art. 6-2) of
the Convention.

Conclusion

66. The Commission concludes, by 15 votes to 2, that there has been
no violation of Article 6 para. 1 (Art. 6-1) or para. 2 (Art. 6-2) of
the Convention as regards the applicant’s right to silence.

2. Access to a solicitor

67. The applicant complains that he was denied access to a lawyer at
a critical stage of the criminal proceedings brought against him. He
submits that in Northern Ireland the preliminary investigations by the
police take on special importance in light of the provisions of the
1988 Order which allow inferences to be drawn if an accused fails to
respond to certain questions or to mention certain facts later relied
on in his defence. During the period of 48 hours before he was allowed
to see a solicitor, he was interviewed ten times by the police, while
after he had seen his solicitor he was interviewed twice more by the
police in the solicitor’s absence. This, in the applicant’s submission,
influenced the position of the defence and affected the fairness of his
trial contrary to Article 6 paras. 1 and 3 (c) (Art. 6-1) (Art. 6-3-c)
of the Convention, particularly in view of the “very strong inferences”
which were drawn by the judge from the applicant’s failure to give an
explanation to the police of his presence in the house where L. was
held captive.

68. The Government contend that the 48 hour delay did not
disadvantage the applicant in the conduct of his defence. His position
was one of resolute refusal to answer questions both before and after
he saw his solicitor and his position was not prejudiced or affected
in any way. As regards the refusal of permission to the applicant’s
solicitor to be present during the subsequent 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.

69. The Commission recalls that the Convention does not expressly
guarantee the right of an accused to communicate freely with his
defence counsel for the preparation of his defence or otherwise, or for
the defence counsel to be present during pre-trial examinations.
Article 6 para. 3 (c) (Art. 6-3-c), which reflects a specific aspect
of the general concept of a fair trial set out in the para. 1 of the
same Article (Art. 6-1), confers the right on an accused to defend
himself through legal assistance. The Commission recalls that the
Convention is intended to guarantee rights which are not theoretical
or illusory but rights that are practical and effective; this is of
particular relevance to the rights of the defence given the prominent
place held in a democratic society by the right to a fair trial (see
eg. Eur. Court H.R., Artico judgment of 13 May 1980, Series A no. 37,
p. 16, para. 33). Restrictions on an accused’s access to his lawyer and
the refusal to allow the lawyer to attend during examinations of his
client may influence the material position of the defence at the trial
and therefore also the outcome of the proceedings. The Court and the
Commission have accordingly considered that guarantees of Article 6
(Art. 6) normally extend to an accused the right to assistance and
support by a lawyer throughout the proceedings (see eg. Can v. Austria,
No. 9300/81, Comm. Rep. 12.7.84, Eur. Court H.R. Series A no. 96,
p. 15 et seq., paras. 49 et seq.; Eur. Court H.R., Imbroscia judgment
of 24 November 1993, Series A no. 275, paras. 59-61, and Comm. Rep.
14.5.92, Series A no. 275, p. 23 para. 65).

70. In the absence, however, of an express provision it cannot be
excluded that the right of access to and support by a lawyer during
proceedings may be susceptible of restrictions. Regard must be had to
the circumstances of the case, including the nature, duration and
effect of any restriction, to determine whether, in the context of the
proceedings as a whole, an accused has been deprived of a fair hearing.

71. In the present case, the Commission recalls that, as the
Government point out, the applicant remained silent both before and
after he had seen his solicitor. It appears however that the solicitor
gave the advice to the applicant to maintain his silence, partly
because he had already been silent and Article 6 was already triggered
and partly because he would not be able to attend the interviews to
ensure their fairness. The Commission notes that the applicant’s
silence during his detention by the police also had significance for
the conduct of his trial in that, if he chose to give evidence in his
defence, Article 3 would have permitted inferences to be drawn from his
failure to mention any facts relied on in his defence to the police.
The domestic case-law indicates that silence by an accused in police
detention prior to his receiving the advice of his solicitor is not
generally excepted from the drawing of inferences under the 1988 Order
(cf. para. 43 above).

72. The fact that, according to the 1988 Order, adverse inferences
could be drawn from the applicant’s failure to answer questions by the
police or to account for certain facts already at the pre-trial stage
is an element which made it particularly important for the applicant
to be assisted by his solicitor at an early stage.

73. The Commission is therefore of the opinion that in the present
case the applicant’s rights of defence were adversely affected by the
restrictions on his access to a solicitor and that these restrictioons
were not in conformity with his right to a fair hearing under Article 6
para. 1 (Art. 6-1) and his right to legal assistance under Article 6
para. 3 (c) (Art. 6-3-c) of the Convention.

Conclusion

74. The Commission concludes, by 13 votes to 4, that there has been
a violation of Article 6 para. 1 in conjunction with Article 6
para. 3 (c) (Art. 6-1+6-3-c) of the Convention as regards the
applicant’s lack of access to a solicitor.

D. Article 14 (Art. 14) of the Convention

75. Article 14 (Art. 14) of the Convention provides:

“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.”

76. The applicant submits that the practice regarding access of
solicitors to suspects in Northern Ireland is in violation of
Article 14 in conjunction with Article 6 (Art. 14+6) of the Convention.
He refers in particular to the practice whereby solicitors in Northern
Ireland are not permitted to be present at any stage while a person
arrested under prevention of terrorism provisions is being interviewed,
whereas all detained suspects in England and Wales may on request have
a solicitor present.

77. The Government state that the police in England and Wales have
powers to delay access to a solicitor similar to those of the police
in Northern Ireland in which respect there is accordingly no difference
in treatment. Insofar as there is a difference in treatment between
terrorist suspects in England and Wales and in Northern Ireland with
regard to the presence of solicitors during interviews, the Government
submit this is based solely on the geographical location at which a
person was arrested and detained and does not therefore constitute
discriminatory treatment within the meaning of Article 14 (Art. 14) of
the Convention.

78. In view of its finding in para. 74 above, the Commission does not
consider it necessary to examine the complaint that the applicant, as
a result of his denial of access to a solicitor, suffered
discrimination contrary to Article 14 in conjunction with Article 6
(Art. 14+6) (cf. mutatis mutandis eg. Eur. Court H.R. Beldjoudi
judgment of 26 March 1992, Series A no. 234-A, p. 29, para. 81).

Conclusion

79. The Commission concludes, by 14 votes to 3, that it is not
necessary to examine whether there has been a violation of Article 14
in conjunction with Article 6 (Art. 14+6) of the Convention.

E. Recapitulation

80. The Commission concludes, by 15 votes to 2, that there has been
no violation of Article 6 para. 1 (Art. 6-1) or para. 2 (Art. 6-2) of
the Convention as regards the applicant’s right to silence (para. 66
above).

81. The Commission concludes, by 13 votes to 4, that there has been
a violation of Article 6 para. 1 in conjunction with Article 6
para. 3 (c) (Art. 6-1+6-3-c) of the Convention as regards the
applicant’s lack of access to a solicitor (para. 74 above).

82. The Commission concludes, by 14 votes to 3, that it is not
necessary to examine whether there has been a violation of Article 14
in conjunction with Article 6 (Art. 14+6) of the Convention (para. 79
above).

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

Or. English

CONCURRING OPINION OF MR. H. G. SCHERMERS

I share the opinion of the Commission that there has been a
violation of Article 6 as regards the absence of a solicitor. However,
I am not of the opinion that full access to a solicitor is required.

The main task of the police in pre-trial investigation is to find
the truth. For that purpose it is necessary that the police obtain as
much information as possible. Interrogation of suspects may be an
important source of information. The questions arise why a solicitor
should be present at such investigation and whether his position in
pre-trial proceedings should be the same as during trial.

The main argument raised against the presence of a solicitor is
that not all solicitors are always cooperative in finding the truth.
For them, obtaining the best position for the defence during trial may
take priority over finding the truth. Often solicitors recommend
silence rather than cooperation. In the absence of a solicitor a
voluntary confession may be more easily obtained. Finding the truth
is in the general interest and in the interest of the law and should
therefore not be hampered in any way. Normally, investigation by the
police aims at establishing the facts. Legal qualifications are not
involved and therefore the presence of a legal expert may not be
necessary.

On the other hand there are at least two reasons why solicitors
should be present at any interrogation. First, the solicitor has an
interest in knowing all facts of the prosecution. It is in the
interest of a fair trial that the solicitor should hear statements of
a suspect. A police report on a detainee’s statement may use different
wording and may not exactly reflect hesitations and accents in the
statement. Second, a suspect is under the full power of the police and
may easily be subject to undue pressure. To prevent such undue
pressure being exerted the presence of a solicitor is important.

In my opinion, the arguments for the presence of a solicitor at
pre-trial interrogations are stronger than those against. In order to
meet the arguments against, I would, however, be willing to accept a
fully passive presence, that is, to allow a solicitor to observe the
interrogation without permitting him to speak with the detainee.

Or. English

PARTLY CONCURRING, PARTLY DISSENTING OPINION OF
MR. E. BUSUTTIL

I share the opinion of the majority that there was in this case
a violation of Article 6 para. 1 in conjunction with Article 6
para. 3(c) of the Convention in regard to the applicant’s lack of
access to a solicitor, but I am unable to endorse their conclusion that
Article 6 paragraphs 1 and 2 have not been violated in respect of the
applicant’s right to silence.

The majority acknowledge in para. 52 of the Report that the Court
in Funke (ECHR Funke judgment of 25th February 1993, Series A
No. 266-A, paragraph 44) has recently held that everyone charged with
a criminal offence, within the autonomous meaning of this expression
in Article 6, is entitled to remain silent and not to contribute to
incriminating himself.

More recently still, in the case of Saunders v. the United
Kingdom (No. 19187/91, Comm. Rep. 10.5.94), the Commission itself held
by an overwhelming majority of 14 votes to 1 as follows:

“The privilege against self-incrimination is an important element
in safeguarding an accused from oppression and coercion during
criminal proceedings. The very basis of a fair trial presupposes
that the accused is afforded the opportunity of defending himself
against charges brought against him. The position of the defence
is undermined if the accused is under compulsion, or has been
compelled, to incriminate himself ” (paragraph 72).

The Commission in that case then proceeded to add a rider to the
effect that whether a particular applicant has been subject to
compulsion to incriminate himself and whether the use made of the
incriminating material has rendered criminal proceedings unfair will
depend on an assessment of the circumstances of each case.

In my view, the attachment of adverse inferences to the exercise
of the right to silence in the pre-trial stage is a means of
compulsion, in that it can constitute a form of direct pressure
exercised by the police to obtain evidence from a suspect. The co-
operation of the detainee can be obtained during his interrogation with
the threat of adverse inferences being drawn against him for remaining
silent. Thus the suspect is faced with Hobson’s choice – he either
testifies or, if he chooses to remain silent, he has to risk the
consequences, thereby automatically losing his protection against self-
incrimination. The situation is particularly acute in Northern Ireland
where a detained person can be kept incommunicado without access to
legal advice for a period of up to 48 hours under Section 15 of the
Northern Ireland (Emergency Provisions) Act 1987.

In the present case, the applicant was denied access to a
solicitor for 48 hours, during which time he was interviewed ten times
by the police. Furthermore, after he had been given access, he was
interviewed twice more by the police in the solicitor’s absence. The
majority of the Commission rightly noted in paragraph 71 of the Report
that the applicant’s silence during his detention by the police also
had significance for the conduct of his trial in that, if he chose to
give evidence in his defence at the trial stage, Article 3 of the
Criminal Evidence (Northern Ireland) Order 1988 would still have
permitted adverse inferences to be drawn from his initial failure to
mention any facts relied on in his defence to the police. The domestic
case-law demonstrates that inferences can still be drawn under the 1988
Order even were the accused was silent in police detention prior to
having access to legal advice. This being the case, the applicant’s
position was irretrievably prejudiced from the time of his initial
silence in police detention before his first contact with a solicitor.
The position is further aggravated by the absence from the mandate of
Article 3 of the Order of a corresponding obligation on the police to
keep an official record or to take a tape-recording of the preliminary
questioning.

The majority considered this situation significant for the
conduct of his trial but only drew the conclusion that there was a
violation of Article 6 paragraph 1 in that the restrictions on his
access to a solicitor were not in conformity with his right to a fair
trial. Astonishingly, however, they fought shy of the further
conclusion that there was a further violation of Article 6 paragraph 1,
in that the applicant was deprived of a fair trial by the drawing of
incriminating inferences from his failure to answer questions by the
police at the pre-trial stage of the proceedings before he had had the
benefit of legal advice. To my mind, the question of access to a
solicitor is inextricably entwined with that of the drawing of adverse
inferences from pre-trial silence under police questioning while the
suspect is being held incommunicado. In the instant case, the effect
of the abridgement of the right to silence by the application of the
provisions of the 1988 Order coupled with the denial of access to a
solicitor in the early stages of detention was such as to deprive the
applicant of the benefit of a fair trial. There has, accordingly, been
a further violation of Article 6 paragraph 1 in this respect.

In parallel with this, I am of the opinion that the curtailment
of the right to silence violated the presumption of innocence contrary
to Article 6 paragraph 2 of the Convention.

All persons (whatever their antecedents) are presumed innocent
until proven guilty after a fair trial in which the prosecutor bears
the burden of proving guilt beyond a reasonable doubt. The right to
remain silent throughout the pre-trial and trial stages of the criminal
proceedings is an essential dimension of that presumption. To require
the accused to testify shifts the burden of proof from the prosecution
to the accused. To permit the drawing of incriminating inferences from
the silence of the accused dilutes the quality of the evidence required
to prove guilt since the incriminating inferences permit the court to
establish the guilt of the accused on the basis of evidence which might
otherwise be inadequate to sustain a conviction.

As far as the present case goes, the case against the applicant
(apart from the adverse inferences subsequently drawn) rested
essentially on L’s evidence, the police informer who was falsely
imprisoned in the house in question and who the trial judge accepted
was a man of no moral worth and fully prepared to lie to advance his
own interests. Nevertheless, the judge preferred his evidence to that
of M, one of the co-accused, who stated that the applicant’s presence
in the house at the time the police arrived was recent and innocent.
The only other evidence was that of the police officers who testified
that, at the time of their entry into the house, the applicant was half
way down the flight of stairs from the half-landing to the hall and
wearing a raincoat over his other clothes. Against this, M had stated
that the applicant, who entered the house in his company after hearing
the whining noise of police jeeps, had run up the stairs to a window
to ascertain the whereabouts of the police.

The fact that the police had observed the applicant was wearing
a raincoat as he came down the stairs is consistent with M’s version
that the applicant’s arrival at the house was recent. Equally material
is the fact that the authorities had found no fingerprints of the
applicant in the upstairs rooms, while they had found fingerprints of
some of the co-accused who were also in the house. Furthermore, from
forensic examinations conducted at the Northern Ireland Forensic
Laboratory nothing was found to indicate that the applicant or M had
been in close recent contact with L, while such evidence was found in
respect of some of the other co-accused.

In the circumstances of the present case, it was something of an
extravagance for the courts to describe the evidence against the
applicant, before the adverse inferences were drawn, as “formidable”.
Indeed, it seems to me that it constituted, without the incriminating
inferences, insufficient proof of guilt beyond reasonable doubt.

Or. English

PARTLY CONCURRING, PARTLY DISSENTING OPINION OF
MR. N. BRATZA

I share the view of the majority of the Commission that there has
in the present case been no violation of Article 6 para. 1 and/or
para. 2 of the Convention insofar as adverse inferences were drawn by
the domestic courts from the failure of the applicant to answer police
questions or to give evidence at his trial.

I also agree with the reasoning of the majority of the Commission
in paragraphs 47-66 of the Report but would add two points by way of
amplification.

(1) In reaching the view that there has been no violation of the
Convention I attach considerable importance to the fact that adverse
inferences under the 1988 Order are drawn by a judge sitting without
a jury. Not only is a judge, by his training and legal experience,
likely to be better equipped than a lay juryman to draw only such
inferences as are justified from a defendant’s silence but, as pointed
out by the Commission, a judge in Northern Ireland gives a reasoned
judgment as to the grounds on which he decides to draw inferences and
the weight which he gives to such inferences in any particular case:
whether the inferences have been properly drawn in all the
circumstances and whether proper weight has been given to them by the
trial judge is then subject to review by the Court of Appeal in
Northern Ireland. The same safeguards against unfairness do not appear
to me to exist in the case of a jury trial. When it is a jury which
must decide, without giving reasons, what adverse inferences, if any,
to draw against an accused from his silence and what weight to attach
to such inferences in arriving at a verdict, the risk of unfairness
occurring appears to me to be substantially increased, however
carefully formulated a judge’s direction to the jury might be.

(2) The fact that an accused has access to legal advice before
deciding whether to remain silent in the face of police questioning is
also a significant safeguard against unfairness. In this regard I note
that in the recent Report of the Royal Commission on Criminal Justice,
the minority of the Royal Commission, who were in favour of changing
the existing rules in England and Wales to permit adverse comment on
silence in the face of police questioning, were only prepared to see
this change if the accused had at least been offered the opportunity
of taking legal advice before answering questions put by the police.

Under the 1988 Order there is no requirement that an accused
should have had access to legal advice before adverse inferences can
be drawn from his silence: on the contrary, in the case of R. v.
Dermott Quinn the Court of Appeal in Northern Ireland upheld the trial
judge’s rejection of a submission to the effect that the provisions of
the 1988 Order should be read subject to Section 15 of the 1987 Act and
that an adverse inference under Article 3 of the 1988 Order should not
be drawn where an accused had asked for access to a solicitor but been
interviewed by the police before his solicitor arrived to advise him.

Nevertheless, the fact that an accused has been denied access to
a solicitor is not an irrelevant consideration, the Court of Appeal
commenting in the same case that the denial of access in breach of the
provisions of Section 15 of the 1987 Act may justify a judge in
refusing to draw an adverse inference under Article 3 of the 1988
Order. Moreover, while I consider it highly desirable that access to
legal advice should be available to an accused, it does not in my view
follow that the drawing of inferences from the silence of an accused
who has not had such access will inevitably result in unfairness:
whether it does or not will depend on all the circumstances of the
particular case.

In the present case, inferences were drawn by the trial judge
against the applicant under Article 6 of the Order by reason of his
failure to account for his presence in the house at 124 Carrigart
Avenue when cautioned by the police on the evening of 7 January 1990.
The applicant did not at the time of his caution and when deciding to
remain silent have the benefit of legal advice. However, I do not
consider that the drawing of inferences under the Article (or under
Article 4 of the Order by reason of his refusing to give evidence in
his own defence) deprived the applicant in all the circumstances of a
fair trial. In this regard I attach particular importance to the fact
that

(i) the adverse inferences were in no sense the sole evidence
against the applicant: the evidence of L. as to the applicant’s
involvement, and the police evidence as to the circumstances in which
the applicant had been found in the house, gave rise to what the Court
of Appeal described as a “formidable case” against the applicant of
aiding and abetting the kidnapping of L.;

(ii) there is no suggestion that the applicant failed to
understand the significance of the caution given to him pursuant to
Article 6 of the 1988 Order before he was advised by his solicitor;

(iii) the applicant remained silent both before and after he had
seen his solicitor and there is nothing to suggest that his persistent
refusal to answer any questions put to him by the police would have
been any different had he received legal advice at an earlier stage.

For these reasons I agree with the majority of the Commission
that the drawing of adverse inferences from the applicant’s silence did
not deprive him of a fair trial.

For the same reasons I regret that I cannot share the majority’s
view that the applicant’s defence rights were affected and that he was
deprived of a fair hearing in consequence of the restrictions placed
on his access to a solicitor.

While I accept that the guarantees of Article 6 may require that
an accused has the assistance and support of a lawyer at a pre-trial
stage including during his police interrogation, the question in each
case is whether a restriction on access to legal advice is such as to
prejudice the position of the defence at trial and thereby deprive the
accused of a fair hearing.

In the present case there is nothing in my view to suggest that
the restrictions had this effect. The applicant remained steadfastly
silent at all stages of the proceedings from the moment of his initial
arrest. His stance throughout his police interview remained unchanged
even after access to a solicitor had been granted. In these
circumstances I can find no indication that the rights of the defence
were in the present case affected by the inability of the applicant to
consult a solicitor at an early stage or by the absence of a solicitor
during his police interviews.

The applicant further complains that he has been the victim of
discrimination in breach of Article 14 read in conjunction with
Article 6 of the Convention, by reason of the difference in practice
followed in Northern Ireland and in England and Wales regarding the
presence of solicitors during interviews of detained suspects.

In my view the difference in practice is not capable of amounting
to discriminatory treatment for the purposes of Article 14. Article 14
is not concerned with all differences in treatment but only with
differences related to personal characteristics. As the Court pointed
out in its Kjeldsen, Busk Madsen and Pedersen judgment of
7 December 1976, Series A no. 23, p. 29 para. 56,

“…Article 14 prohibits, within the ambit of the rights and
freedoms guaranteed discriminatory treatment having as its basis
or reason a personal characteristic (“status”) by which persons
or groups of persons are distinguishable from each other”.

Insofar as there exists a difference in the treatment of detained
suspects in the two jurisdictions with regard to their access to
solicitors, this difference is not based on personal status or
characteristics but on the geographical location where the suspect is
arrested and detained. Such a difference does not amount to
discriminatory treatment within the meaning of Article 14 of the
Convention.

Or. French

PARTLY DISSENTING OPINION OF MR. F. MARTINEZ

I agree with the dissenting part of Mr. Bratza’s opinion.

(Or. Eng.)

DISSENTING OPINION BY MR. L. LOUCAIDES

I am unable to agree with the conclusion of the majority that in
this case there has been no violation of Article 6 para. 1 or 2 of the
Convention as regards the applicant’s right to silence.

My disagreement refers to the application of the 1988 order to
the silence of the applicant during his pre-trial detention by the
police.

I had the opportunity in my dissenting opinion in the Saunders
case (Application No. 19187/91) to explain that the presumption of
innocence safeguarded under Article 6 para. 2 of the Convention entails
the right to remain silent and not to be compelled to incriminate
oneself. The right in question aims at the protection of the innocent
against abuses by law-enforcing agencies. Therefore it is particularly
important to secure this right during pre-trial police detention.

Subject to the following, I share the view of Amnesty
International (para. 55 of the Report) according to which a system
which permits adverse inferences to be drawn against an accused person
because of his silence is inconsistent with the right to remain silent.
I believe that this view should only be applicable as regards the
exercise of such right at pre-trial stages when the danger of abuses
by state organs (i.e. the raison d’être of the right) exist and not at
the stage when the accused chooses to offer no explanation to the court
after a prima facie case is made in court against him.

Apart from the danger of abuse, which I believe does not exist
at the stage of the judicial proceedings, there are other factors which
distinguish the above-mentioned two stages for the purposes of the
right in issue. In contrast with the trial stage an accused person,
when faced with the law-enforcing agencies before trial, alone and
without the legal guidance of a counsel, lacks the necessary safeguards
for an effective presentation of his version in an inherently coercive
setting in which the prosecutorial forces have the upper hand.
Although he may not be guilty he may not be in a position to establish
effectively his innocence. In this respect it is useful to recall that
the Commission found that in this case there has been a violation of
Article 6 para. 1 in conjunction with Article 6 para. 3 (c) of the
Convention as regards the applicant’s lack of access to a solicitor
during the preliminary investigations by the police.

In the light of the above and in view of the fact that the
failure of the applicant to give an account to the police of his
presence in the house where L. was imprisoned, was relied on by the
trial judge in drawing “very strong inferences” against the applicant
(pursuant to Article 6 of the Order) I find there has been a breach of
the presumption of innocence which is protected in absolute terms in
Article 6 para. 2 of the Convention.

Appendix I

HISTORY OF THE PROCEEDINGS

Date Item
________________________________________________________________

16.08.91 Introduction of the application

27.08.91 Registration of the application

Examination of admissibility

10.09.92 Commission’s decision to invite the parties to
submit observations on the admissibility and
merits

25.02.93 Government’s observations

08.04.93 Commission’s grant of legal aid

07.06.93 Applicant’s reply

30.08.93 Commission’s decision to invite the parties to
an oral hearing

18.01.94 Hearing on admissibility and merits

18.01.94 Commission’s decision to declare the application
admissible

Examination of the merits

18.01.94 Commission’s deliberations

24.02.94 Applicant’s observations on the merits

13.05.94 Consideration of the state of proceedings

27.07.94 Commission’s deliberations on the merits, final
votes and adoption of the Report