*29 Murray v United Kingdom

Application No. 18731/91

Before the European Court of Human Rights

8 February 1996

(1996) 22 E.H.R.R. 29

(The President , Judge Ryssdal ; Judges Bernhardt , Matscher , Pettiti , Walsh , Valticos , Martens ,Palm , Foighel , Pekkanen , Loizou , Bigi , Freeland , Lopes Rocha , Wildhaber , Makarczyk , Gotchev

, Jungwiert , L#hmus )

8 February 1996

On 8 May 1991, the applicant was found guilty of aiding and abetting unlawful imprisonment andsentenced to eight years in prison. He had been arrested on 7 January 1990 under thePrevention of Terrorism (Temporary Provisions) Act 1989 . Following arrest he was cautionedunder the Criminal Evidence (Northern Ireland) Order 1988 ( “the Order” ) and informed thatadverse inferences could be drawn at his trial if he elected to remain silent and not answer policequestions. He was also denied legal advice for 48 hours. On finding the applicant guilty, thejudge informed him that he had drawn adverse inferences from the fact that he had not answeredpolice questions and that he had not given evidence at his trial. In his application to theCommission on 16 August 1991, the applicant complained that the denial of legal advice for 48hours and the fact that inferences were drawn had resulted in him not having a fair trial underArticle 6. He also claimed that he was discriminated against under Article 14, in that he wastreated differently in Northern Ireland than he would, had he been English in England.

Held:

(1) by 14 votes to 5, that there has been no violation of Article 6(1) and (2) of the Conventionarising out of the drawing of adverse inferences on account of the applicant's silence;

(2) by 12 votes to 7 that there has been a violation of Article 6(1) in conjunction with 3(c) ofthe Convention as regards the applicant's lack of access to a lawyer during the first 48 hoursof his police detention;

(3) unanimously that it is not necessary to examine the applicant's complaint of a violation ofArticle 14 in conjunction with Article 6 ;

(4) unanimously that, as regards pecuniary and non-pecuniary damage, the findings of aviolation of Article 6(1) in conjunction with 3(c) constitutes, in itself, sufficient just satisfactionfor the purposes of Article 50 of the Convention;

(5) unanimously

(a) that the respondent state is to pay, within three months, for costs and expenses£15,000, less 37,968.50 FF to be converted into pounds sterling at the rate of exchangeapplicable on the date of delivery of the present judgment;

(b) that simple interest at an annual rate of 8 per cent shall be *30 payable from theexpiry of the above mentioned three months until settlement;

(6) unanimously that the remainder of the claims for just satisfaction be dismissed.

1. Applicability of Article 6(1) and (2): drawing adverse inferences from the right to silence.

(a) The Court pointed out that it was not its role to examine whether in general the drawingof inferences from exercising the right to remain silent is compatible with Article 6 . Rather itconfined itself to the facts of the present case and considered whether the drawing ofinferences rendered the applicant's trial unfair. However the Court makes clear thatalthough not specifically mentioned, the right to remain silent under police questioning andthe privilege against self-incrimination are generally recognised international standardswhich lie at the heart of Article 6. [44–45]

Page1

(b) These standards are not absolute. Therefore whilst it would be incompatible with Article6 to base a conviction solely or mainly on the accused's silence or on a refusal to answerquestions or to give evidence himself, where a situation clearly calls for an explanation theaccused's silence can be taken into account in assessing the persuasiveness of theevidence adduced by the prosecution. All the circumstances of the case have to be takeninto consideration. [47]

(c) The Court considered that there were safeguards built into the order and that there wasno compulsion to give evidence in that his insistence in maintaining his silence throughoutthe proceedings did not amount to a criminal offence or contempt of court. Neither is silencein itself regarded as an indication of guilt. [48]

(d) Therefore having regard to the circumstances of the particular case, it was commonsense that an explanation from the applicant was reasonable and therefore the drawing ofinferences was not unfair. [54]

2. Access to a lawyer.

(a) Article 6 applies even at the stage of the preliminary investigation into an offence by thepolice. Article 6 normally requires the accused access to a lawyer at the initial stages of apolice interrogation. However this right, which is not explicitly set out in the Convention, maybe subject to restrictions for good cause. Even a lawfully exercised power of restriction iscapable of depriving an accused, in certain circumstances, of a fair procedure. [62–65]

(b) The scheme under the order places the accused in a fundamental dilemma. Under suchconditions fairness requires the assistance of a lawyer at the initial stages of interrogation.The applicant was directly affected by the denial of access and the ensuing interferencewith the rights of the defence. Therefore the denial of access to a lawyer for the first 48hours of his detention amounted to the denial of a fair trial in that there was a breach ofArticle 6(1) in conjunction with 6(3)(c) . [66–68]

3. Just Satisfaction (Art. 50).

(a) The finding of a violation was limited to the lack of access to a solicitor. The Courttherefore found that finding of a violation was sufficient just satisfaction. [76]

Representation

Mr J. J. Rankin , Legal Counsellor, Foreign and Commonwealth*31Office (Agent), Rt Hon. Sir N. Lyell Q.C. , Attorney-General for England and Wales andAttorney-General for Northern Ireland, Mr P. Coghlin, Q.C. , Mr J. Eadie (Counsel), Mr C.Whomersley , Legal Secretariat to the Law Officers, Mr R. Heaton , Home Office, Mr A.Whysall , Northern Ireland Office (Advisers) for the Government. Mr H. Danelius (Delegate)for the Commission.

Mr S. Treacy , barrister (Counsel), Mr K. Winters , of Madden and Finucane (Solicitor), Mr A.Campbell (Adviser) for the applicant.

The following cases are referred to in the judgment:

1. Brogan and Others v. United Kingdom (A/145-B): (1989) 11 E.H.R.R. 117 .

2. Funke v. France (A/256-A): (1993) 16 E.H.R.R. 297 .

3. Imbrioscia v. Switzerland (A/275): (1994) 17 E.H.R.R. 441 .

The following case is referred to in the dissenting opinion of Judges Ryssdal, Matscher, Palm,Foighel, Freeland, Wildhaber and Jungwiert:

4. Brannigan and McBride v. United Kingdom (A/258-B): (1994) 17 E.H.R.R. 539 .

The following additional cases are referred to in the Partly Dissenting Opinions of Judge Pettiti (joinedby Judge Valticos) and Judge Walsh (joined by Judges Makarczyk and L#hmus):

5. Griffin v. State of California (1965) 380 US 609 .

Page2

6. Miranda v. Arizona (1966) 384 US 436 .

The following additional cases are referred to in the Commission's Report:

7. Artico v. Italy (A/37): (1981) 3 E.H.R.R. 1 .

8. Can v. Austria (A/96): (1986) 8 E.H.R.R. 121 .

9. Beldjoudi v. France (A/234-A): (1992) 14 E.H.R.R. 801 .

The Facts

I. Particular circumstances of the case

The applicant's arrest and detention

11. The applicant was arrested by police officers at 17.40 on 7 January 1990 under section 14 of thePrevention of Terrorism (Temporary Provisions) Act 1989 . Pursuant to Article 3 of the CriminalEvidence (Northern Ireland) Order 1988 ( “the Order” ), 1 he was cautioned by the police in thefollowing terms: *32

You do not have to say anything unless you wish to do so but I must warn you that if you fail tomention any fact which you rely on in your defence in court, your failure to take this opportunity tomention it may be treated in court as supporting any relevant evidence against you. If you dowish to say anything, what you say may be given in evidence.

In response to the police caution the applicant stated that he had nothing to say.

12. On arrival at Castlereagh Police Office at about 19.00, he refused to give his personal details tothe officer in charge of the custody record. At 19.05 he was informed of his right to have a friend orrelative notified of his detention and indicated that he did not require anyone to be so notified. At19.06 he indicated that he wished to consult with a solicitor. At 19.30 his access to a solicitor wasdelayed on the authority of a detective superintendent pursuant to section 15(1) of the NorthernIreland (Emergency Provisions) Act 1987 ( “the 1987 Act” ). The delay was authorised for a period of48 hours from the time of detention ( i.e. from 17.40 on 7 January) on the basis that the detectivesuperintendent had reasonable grounds to believe that the exercise of the right of access would, interalia , interfere with the gathering of information about the commission of acts of terrorism or make itmore difficult to prevent an act of terrorism. 2

13. At 21.27 on 7 January a police constable cautioned the applicant pursuant to Article 6 of theOrder, inter alia , requesting him to account for his presence at the house where he was arrested. Hewas warned that if he failed or refused to do so, a court, judge or jury might draw such inference fromhis failure or refusal as appears proper. He was also served with a written copy of Article 6 of theOrder. 3

In reply to this caution the applicant stated: “nothing to say” .

14. At 22.40 he was reminded of his right to have a friend or relative notified of his detention andstated that he did not want anyone notified. He was also informed that his right of access to a solicitorhad been delayed. He then requested consultation with a different firm of solicitors. A police inspectorreviewed the reasons for the delay and concluded that the reasons remained valid.

15. The applicant was interviewed by police detectives at Castlereagh Police Office on 12 occasionsduring 8 and 9 January. In total he was interviewed for 21 hours and 39 minutes. At thecommencement of these interviews he was either cautioned pursuant to Article 3 of the Order orreminded of the terms of the caution.

16. During the first 10 interviews on 8 and 9 January the applicant made no reply to any questions putto him. He was able to see his solicitor for the first time at 18.33 on 9 January. At 19.10 he wasinterviewed again and reminded of the Article 3 caution. He replied: “I have been advised by mysolicitor not to answer any of your *33 questions” . A final interview, during which the applicant saidnothing, took place between 21.40 and 23.45 on 9 January.

Page3

His solicitor was not permitted to be present at any of these interviews.

The trial proceedings

17. In May 1991 the applicant was tried by a single judge, the Lord Chief Justice of Northern Ireland,sitting without a jury, for the offences of conspiracy to murder, the unlawful imprisonment, with sevenother people, of a certain Mr L and of belonging to a proscribed organisation, the Provisional IrishRepublican Army (IRA).

18. According to the Crown, Mr L had been a member of the IRA who had been providing informationabout their activities to the Royal Ulster Constabulary. On discovering that Mr L was an informer, theIRA tricked him into visiting a house in Belfast on 5 January 1990. He was falsely imprisoned in oneof the rear bedrooms of the house and interrogated by the IRA until the arrival of the police and thearmy at the house on 7 January 1990. It was also alleged by the Crown that there was a conspiracyto murder Mr L as punishment for being a police informer.

19. In the course of the trial, evidence was given that when the police entered the house on 7January, the applicant was seen by a police constable coming down a flight of stairs wearing araincoat over his clothes and was arrested in the hall of the house. Mr L testified that he was forcedunder threat of being killed to make a taped confession to his captors that he was an informer. Hefurther said that on the evening of 7 January he had heard scurrying and had been told to take off hisblindfold, that he had done so and had opened the spare bedroom door. He had then seen theapplicant standing at the stairs. The applicant had told him that the police were at the door and to godownstairs and watch television. While he was talking to him the applicant was pulling tape out of acassette. On a search of the house by the police items of clothing of Mr L were subsequently found inthe spare bedroom, whilst a tangled tape was discovered in the upstairs bedroom. The salvagedportions of the tape revealed a confession by Mr L that he had agreed to work for the police and hadbeen paid for so doing. At no time, either on his arrest or during the trial proceedings, did theapplicant give any explanation for his presence in the house.

20. At the close of the prosecution case the trial judge, acting in accordance with Article 4 of theOrder, called upon each of the eight accused to give evidence in their own defence. The trial judgeinformed them inter alia :

I am also required by law to tell you that if you refuse to come into the witness box to be sworn orif, after having been sworn, you refuse, without good reason, to answer any question, then thecourt in deciding whether *34 you are guilty or not guilty may take into account against you to theextent that it considers proper your refusal to give evidence or to answer any questions.

21. Acting on the advice of his solicitor and counsel, the applicant chose not to give any evidence. Nowitnesses were called on his behalf. Counsel, with support from the evidence of a co-accused, DM,submitted, inter alia , that the applicant's presence in the house just before the police arrived wasrecent and innocent.

22. On 8 May 1991 the applicant was found guilty of the offence of aiding and abetting the unlawfulimprisonment of Mr L and sentenced to eight years' imprisonment. He was acquitted of the remainingcharges.

23. The trial judge rejected DM's evidence 4 as untruthful. He considered that:

the surrounding facts, including the finding of the tangled tape in the bathroom with the brokencassette case, and the fact that, on entering the house some appreciable time after they arrivedoutside it and some appreciable time after they first knocked on the door, the police found Murraycoming down the stairs at the time when all the other occupants of the house were in the livingroom, strongly confirm L's evidence that after the police knocked on the door Murray was upstairspulling the tape out of the cassette.

24. In rejecting a submission by the applicant that Articles 4 and 6 of the Order did not operate topermit the Court to draw an adverse inference against him, where, at the end of the Crown case,there was a reasonably plausible explanation for the accused's conduct consistent with his innocence,the trial judge stated as follows:

Page4

There can be debate as to the extent to which, before the making of the Criminal Evidence(Northern Ireland) Order 1988 , a tribunal of fact in this jurisdiction was entitled to draw anadverse inference against an accused because he failed to give evidence on his own behalf, orto account for his presence at a particular place or to mention particular facts when questionedby the police. But I consider that the purpose of Article 4 and of Articles 3 and 6 of the 1988Order was to make it clear that, whatever was the effect of the previous legal rules, a judge tryinga criminal case without a jury, or a jury in a criminal case, was entitled to apply common sense indrawing inferences against the accused in the circumstances specified in Article 4, and in Articles3 and 6 …

… I think it is clear that the purpose of Article 4 is to permit the tribunal of fact to draw suchinferences against the accused from his failure to give evidence in his own defence as commonsense requires.

The inference which it is proper to draw against an accused will vary from case to casedepending on the particular circumstances of the case and, of course, the failure of the accusedto give evidence on his own behalf does not in itself indicate guilt. Nor does the failure to mentionparticular facts when questioned or the failure to account for presence in a particular place initself indicate guilt. But I consider that the intendment of … Article 4 and Article 6 is to enable thetribunal of fact to exercise ordinary common sense in drawing inferences against an accused …*35

Therefore when I come to consider the case against the accused … I propose to draw suchinferences against [him] under Article 4 and under Article 6 as ordinary common sense dictates.

25. In concluding that the applicant was guilty of the offence of aiding and abetting falseimprisonment, the trial judge drew adverse inferences against the applicant under both Articles 4 and6 of the Order. The judge stated that in the particular circumstances of the case he did not propose todraw inferences against the applicant under Article 3 of the Order. He stated furthermore:

I accept the submissions of counsel for the accused that as demonstrated by his replies incross-examination, L is a man who is fully prepared to lie on oath to advance his own interestsand is a man of no moral worth whatever. I, therefore, accept the further submissions of counselfor the accused that, unless his evidence were confirmed by other evidence, a court should notact 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 inhis evidence, [the applicant] was at the top of the stairs pulling the tape out of the cassette afterthe police arrived outside the house.

I am also satisfied, for the reasons which I have already stated, that [the applicant] was in thehouse for longer than the short period described by his co-accused, [DM]. I am further satisfiedthat it is an irresistible inference that while he was in the house [the applicant] was in contact withthe men holding L captive and that he knew that L was being held a captive. I also draw verystrong inferences against [the applicant] under Article 6 of the 1988 Order by reason of his failureto give an account of his presence in the house when cautioned by the police on the evening of 7January 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 defencewhen 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 Lbeing falsely imprisoned. As Vaughan J. stated in R. v. Young … [the applicant] was 'nearenough to give [his] aid and to give [his] countenance and assistance'.

The appeal proceedings

26. The applicant appealed against conviction and sentence to the Court of Appeal in NorthernIreland. In a judgment of 7 July 1992, the court dismissed the applicant's appeal holding, inter alia :

Page5

… to suggest, with respect, that [the applicant] went into the house just as the police werearriving outside, immediately went upstairs, attempted to destroy a tape and then walkeddownstairs, and that this was the sum of his time and activity in the house defies common sense…

We are satisfied that it can reasonably be inferred that [the applicant] knew before he came tothe house that [L] was being held captive there. With this knowledge he assisted in the falseimprisonment by directing the captive from the bedroom where he had been held and by givinghim *36 the directions and admonition [L] said. Accordingly [the applicant] aided and abetted thecrime. We do not accept that [L] would have been free to leave the house, if the police and Armyhad been taken in by the pretence of the television watching and had departed without makingany arrests. We have no doubt that [L] remained under restraint in the living room when thepolice were there and if they had left, he would have remained a prisoner to await the fate thathis captors would determine.

We consider that there was a formidable case against [the applicant]. He was the only one of theaccused whom [L] observed and identified as playing a positive part in the activities touching hiscaptivity. L's evidence therefore called for an answer. No answer was forthcoming of any kind tothe police or throughout the length of his trial. It was inevitable that the judge would draw 'verystrong inferences' against him.

The Crown case deeply implicated [the applicant] in the false imprisonment of [L].

II. Relevant domestic law and practice

Criminal Evidence (Northern Ireland) Order 1988

27. The 1988 Order includes the following provisions:

(4) A person shall not be committed for trial, have a case to answer or be convicted of an offencesolely on an inference drawn from such a failure or refusal as is mentioned in Article 3(2), 4(4),5(2) or 6(2).

…

(7) Nothing in this Order prejudices any power of a court, in any proceedings, to excludeevidence (whether by preventing questions from being put or otherwise) at its discretion.

Circumstances in which inferences may be drawn from accused's failure tomention particular facts when questioned, charged, etc.

(1) Where, in any proceedings against a person for an offence, evidence is given that theaccused

(a) at any time before he was charged with the offence, on being questioned by a constabletrying to discover whether or by whom the offence had been committed, failed to mentionany 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 forit, failed to mention any such fact, being a fact which in the circumstances existing at thetime 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 acase to answer,

(b) …

(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;

Page6

(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 ismaterial. *37

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

…

Accused to be called upon to give evidence at trial

(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 itundesirable 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 solicitorrepresenting 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 owndefence, 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 afterhe or counsel or a solicitor representing him has informed the court that he will giveevidence, 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 ismaterial.

(5) This Article does not render the accused compellable to give evidence on his own behalf, andhe shall accordingly not be guilty of contempt of court by reason of a refusal to be sworn.

…

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

(1) Where

(a) a person arrested by a constable was found by him at a place or about the time theoffence 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 atthat 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 forthat presence, and *38

Page7

(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 acase 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 ofamounting to, corroboration of any evidence given against the accused in relation to whichthe failure or refusal is material.

(3) Paragraphs (1) and (2) do not apply unless the accused was told in ordinary language by theconstable when making the request mentioned in paragraph (1)(c) what the effect of this Articlewould 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 aperson to account for his presence at a place which could properly be drawn apart from thisArticle.

…

28. In the case of R. v. Kevin Sean Murray , the House of Lords considered the effect of Article 4 ofthe Order. In the leading judgment of the House of Lords, Lord Slynn stated that

— at common law there was a divergence of view as to whether, and if so, when and inwhat manner a judge might comment on the failure of the accused to give evidence;

— the Order intended to change the law and practice and to lay down new rules as to thecomments which could be made and the inferences which could be drawn when theaccused failed to give evidence at his trial;

— under the Order the accused could not be compelled to give evidence but had to risk theconsequences if he did not do so; and

— the inferences which might be drawn from the accused's failure to give evidence in hisown defence included in a proper case the drawing of an inference that the accused wasguilty of the offences with which he was charged.

29. He added:

… This does not mean that the court can conclude simply because the accused does not giveevidence that he is guilty. In the first place the prosecutor must establish a prima facie case—acase for him to answer. In the second place in determining whether the accused is guilty thejudge or jury can draw only 'such inference from the refusal as appear proper'. As Lord Diplocksaid in Haw Tua Tau v. Public Prosecutor at page 153B:

What inferences are proper to be drawn from an accused's refusal to give evidence dependupon the circumstances of the particular case, and is a question to be decided by applyingordinary common sense.

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 ifparts of the prosecution had so little evidential value that they called for no answer, a failure todeal with those specific matters cannot justify an inference of guilt. *39

On the other hand if aspects of the evidence taken alone or in combination with other facts

Page8

clearly call for an explanation which the accused ought to be in a position to give, if anexplanation exists, then a failure to give any explanation may as a matter of common sense allowthe drawing of an inference that there is no explanation and that the accused is guilty …

30. Lord Mustill in R. v. Kevin Sean Murray (cited above) 5 stated that the expression “a prima faciecase”

was intended to denote a case which is strong enough to go to a jury— i.e. a case consisting ofdirect evidence which, if believed and combined with legitimate inferences based upon it, couldlead a properly directed jury to be satisfied beyond reasonable doubt (…) that each of theessential elements of the offence is proved.

31. Even if a prima facie case is established, the trial judge has a discretion whether or not to drawinferences on the facts of the particular case. In the present case, the Court of Appeal indicated that ifa judge accepted that an accused did not understand the warning given in the caution required byArticle 6 or if he had doubts about it “we are confident that he would not activate Article 6 against him”.

32. In R. v. Director of Serious Fraud Office, ex parte Smith [1992] 3 W.L.R. 66 , Lord Mustill statedthat it was necessary to analyse which aspect of the right to silence is involved in any particularsituation, because

… In truth it does not denote any single right, but rather refers to a disparate group of immunities,which differ in nature, origin, incidence and importance, and also as to the extent to which theyhave already been encroached upon by statute.

Amongst the group of immunities which were covered by the expression “right to silence” Lord Mustillidentified the following:

(1) A general immunity, possessed by all persons and bodies, from being compelled on pain ofpunishment to answer questions posed by other persons or bodies.

(2) A general immunity, possessed by all persons and bodies, from being compelled on pain ofpunishment to answer questions the answers to which may incriminate them.

(3) A specific immunity, possessed by all persons under suspicion of criminal responsibility whilstbeing interviewed by police officers or others in similar positions of authority, from beingcompelled on pain of punishment to answer questions of any kind.

(4) A specific immunity, possessed by accused persons undergoing trial, from being compelled togive evidence, and from being compelled to answer questions put to them in the dock.

(5) A specific immunity, possessed by persons who have been charged with a criminal offence,from having questions material to the offence addressed to them by police officers or persons ina similar position of authority.

(6) A specific immunity (…) persons undergoing trial, from having adverse comment made on anyfailure (a) to answer questions before the trial, or (b) to give evidence at the trial. *40

Provisions governing access to a solicitor

33. 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 custodyshall be entitled, if he so requests, to consult a solicitor privately.

(2) A person shall be informed of the right conferred on him by subsection (1) as soon aspracticable after he has become a person to whom the subsection applies.

(3) A request made by a person under subsection (1), and the time at which it is made, shall be

Page9

recorded in writing unless it is made by him while at a court and being charged with an offence.

(4) If a person makes such a request, he must be permitted to consult a solicitor as soon aspracticable 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) wherehe has reasonable grounds for believing that the exercise of the right conferred by thatsubsection 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 withthe commission, preparation or instigation of an act of terrorism …

34. The delay must be authorised by a police officer of at least the rank of superintendent ( s.15(5)(a)) and the detained person must be told the reason for the delay ( s.15(9)(a) ). The maximum delay is48 hours.

35. The courts in Northern Ireland have taken the view that the provisions of the 1988 Order shouldnot be read subject to section 15 of the 1987 Act above. In the case of R. v. Dermot Quinn , 6 the trialjudge rejected a submission to the effect that an adverse inference under Article 3 of the 1988 Ordershould not be drawn where the accused had asked for access to his solicitor but been interviewed bythe police before his solicitor arrived to advise him. He noted that the 1988 Order had come into forceafter section 15 of the 1987 Act and considered that Parliament had not intended that an inferencedictated by common sense which was permitted by Article 3 of the 1988 Order should not be drawnbecause 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'sruling, finding no unfairness in the circumstances of the case in drawing an adverse inference inrespect of the accused's failure to respond to questions by the police *41 before the receipt of legaladvice from his solicitor. The Court commented that a breach of section 15 might in certaincircumstances allow the trial judge in his discretion to refuse to draw an adverse inference underArticle 3 of the 1988 Order.

PROCEEDINGS BEFORE THE COMMISSION

36. The applicant lodged his application 7 with the Commission on 16 August 1991. He complained,under Article 6(1) and (2) of the Convention, that he was deprived of the right to silence in the criminalproceedings against him. He further complained, under Article 6(3)(c) , of his lack of access to asolicitor during his detention and the fact that the practice concerning access to solicitors differsbetween Northern Ireland and England and Wales in violation of Article 14 of the Convention.

37. The Commission declared the application admissible on 18 January 1994. In its report of 27 June1994, 8 the Commission expressed the opinion that there had been no violation of Article 6(1) and (2)(15 votes to 2), that there had been a violation of Article 6(1) in conjunction with Article 6(3)(c) (13votes to 4) and that it was not necessary to examine whether there had been a violation of Article 14in conjunction with Article 6 (14 votes to 3).

The full text of the Commission's Opinion and of the separate Opinions contained in the reportfollows.

Opinion

A. Complaints declared admissible

Page10

44. 9 The Commission has declared admissible the applicant's complaints that he wasdeprived of the right to silence in the criminal proceedings brought against him; that hewas denied access to his solicitor for 48 hours after arrest and subsequent to that timehis solicitor was not allowed to attend the applicant's interviews with the police; and thatthe practice in Northern Ireland of excluding solicitors from interviews, which differs fromthat 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(1) and/or (2) as regards theapplicant's right to silence;

— whether there has been a violation of Article 6(1) in *42 conjunction with Article6(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 withArticle 6 of the Convention.

C. Article 6 of the Convention

46. The provisions of Article 6 relevant to the examination of this application provide asrelevant:

In the determination of … any criminal charge against him, everyone is entitled to a fair andpublic hearing within a reasonable time by an independent and impartial tribunal established bylaw …

Everyone charged with a criminal offence shall be presumed innocent until proved guiltyaccording to law.

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

…

c. to defend himself in prison or through legal assistance of his own choosing or, if he hasnot sufficient means to pay for legal assistance, to be given it free when the interests ofjustice so require;

1. The right to silence

47. The applicant submits that the 1988 Order, which permits inferences to be drawnfrom the failure of an accused to answer police questions or to give evidence, and thereliance placed upon it by the trial judge in the instant case, violate Article 6(1) of theConvention. The very strong inferences drawn by the trial judge in the applicant's caseplayed a crucial role in his conviction. It is submitted that it is a generally recognisedprinciple of international law that an accused person cannot be required to incriminatehimself, that Article 6 of the Convention enshrines this principle, and that the drawing ofan incriminating inference from an accused's failure to give evidence infringes his rightto a fair trial.

48. The applicant also submits that the drawing of an incriminating inference from thefailure of an accused person to give evidence has the effect of placing the burden ofproof on an accused and is manifestly inconsistent with the presumption of innocenceguaranteed in Article 6(2) of the Convention.

49. The Government submit that the provisions of the 1988 Order did not operate todeprive the applicant either of a fair hearing contrary to Article 6(1) or of thepresumption of innocence contrary to Article 6(2) . They refer to the safeguardsprovided in the Order: no inference may be drawn unless the suspect/accused has been

Page11

warned in advance of the possible effect; before any inference is drawn, the *43prosecution must have established a prima facie case against the accused; the judgehas a discretion whether to draw an inference and is limited to drawing only suchinferences as may be proper. The Order, in the Government's submission, merelyallows the trier of fact to draw such inferences as common sense dictates. In thepresent case, there was a formidable case against the applicant which called forevidence 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 inthe provisions of Article 6 of the Convention.

51. In the case of Funke, 10 the Court held, in the context of a prosecution of anapplicant for refusing to disclose incriminating documents at the request of the customsauthorities, that the “special features of customs law … cannot justify such aninfringement of the right of anyone 'charged with a criminal offence', within the meaningof this expression in Article 6 , to remain silent and not to contribute to incriminatinghimself” .

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

53. In the case of Saunders , 11 the Commission found a violation of Article 6(1) wherethe applicant had been compelled under threat of penalty to make incriminatingstatements to Department of Trade and Industry Inspectors and that information givento them had been used against him in a subsequent criminal prosecution. It considered12 :

In the Commission's opinion, the privilege against self-incrimination is an important element insafeguarding an accused from oppression and coercion during criminal proceedings. The verybasis of a fair trial presupposes that the accused is afforded the opportunity of defending himselfagainst the charges brought against him. The position of the defence is undermined if theaccused is under compulsion, or has been compelled, to incriminate himself. The privilegeagainst self-incrimination is also closely allied to the principle of presumption of innocenceprotected in Article 6(2) of the Convention in that it reflects the expectation that the State bear thegeneral burden of establishing the guilt of an accused, in which process the accused is entitlednot 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 thecircumstances 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 adiscretionary power to draw inferences. In the present case, they submit that theapplicant was not deprived of his right to silence, being entitled to remain silent andfacing no penalty for doing so. *44

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

Moreover a system which permits such compulsion—and permitting adverse inferences to bedrawn is an effective means of compulsion—is also inconsistent with the right not to becompelled to testify against oneself or to confess guilt because the accused is left with noreasonable choice between silence—which will be taken as testimony against oneself—andtestifying. 13

56. While the Commission in the Saunders case 14 found a violation, it agreed with theGovernment's argument to the extent that it accepted that the right to silence may notbe unqualified. The essential issue under Article 6(1) remains, in the Commission'sview, whether an applicant received a fair trial. Whether a particular applicant has beensubject to compulsion to incriminate himself in such a way as to render the criminal

Page12

proceedings unfair or as to deprive him of the presumption of innocence will depend onan assessment of the circumstances of the case as a whole.

57. In the present case, the Commission recalls that the applicant did not make anystatements to the police and that he did not give evidence in court. It is thereforeapparent that the applicant exercised his right of silence and, unlike the applicant in theSaunders case 15 did not provide any incriminating evidence to be used against himself.No penalty was imposed on the applicant for exercising that right. The applicant washowever under indirect pressure to give evidence as a result of the threat of the adverseinferences which could be drawn and which might contribute towards securing hisconviction. The Commission must therefore examine the role which adverse inferencesplayed in the criminal proceedings brought against the applicant. In this examination itconsiders that the issues arising as regards any effects on fairness or the presumptionof innocence represent aspects of the same complaint that are so closely connectedthat 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 “verystrong inferences” from the applicant's failure to give an account to the police of hispresence in the house where L was imprisoned (pursuant to Article 6 of the Order) andalso from his refusal to give evidence in his own defence when called upon by the Courtto do so (pursuant to Article 4 of the Order). The inferences were however not the soleevidence against the applicant. Inferences *45 from a failure to give explanations orevidence in court only become permissible under the Order when there is a prima faciecase, i.e. the prosecution has submitted material which might lead to the conviction ofthe accused. It is apparent that, if the prosecution fails to make such a case to thecourt's satisfaction, the question of inferences will never arise. Moreover theCommission is satisfied that the burden of proof remains on the prosecution throughoutto prove an accused's guilt beyond a reasonable doubt. However, where a prima faciecase has been presented to the court, certain conclusions may always be drawn fromthe 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 andmay only draw such inferences, and such degree of inferences, as may be proper. Inthe context of Northern Ireland where judges sit without a jury, a judge gives a reasonedjudgment as to the basis on which he decides to draw adverse inferences and theweight which he gives them. Whether he has properly exercised his discretion may thenbe examined on appeal by the Court of Appeal in Northern Ireland.

60. In the present case, the Commission recalls that, in accordance with therequirements of the Order, the applicant was warned in effect that there was a primafacie case against him, i.e. a basis on which he could be convicted, and that, if he didnot answer it, inferences might then be drawn. The Commission notes that there wasevidence against the applicant in the testimony of L as to the applicant's involvementand in the statements of the police who had found the applicant at the top of the stairs inthe house and in the mangled tape in the bathroom nearby. Both the trial judge and theCourt of Appeal considered that this constituted a formidable case against the applicantin relation to the charge of aiding and abetting the false imprisonment of L. Theapplicant however did not give evidence in court to counter the prosecution case. TheCommission finds that the adverse inferences drawn against him as a result were aformal expression of the inevitable doubt that no innocent explanation for conduct mayexist where an accused, against whom considerable suspicion already lies, fails to offerany innocent explanation.

61. It is submitted on behalf of the applicant that he was advised to remain silent both inthe police detention and in the court. By the time the solicitor was permitted access tothe applicant, the applicant had already failed to respond to the Article 6 caution andtherefore if he had given a statement to the police it would still have been possible forinferences to be drawn from the earlier silence. Further it is stated that the solicitor wasalso motivated to give the advice to remain silent since he could not be present tosafeguard the applicant's position during the following interviews. As to the applicant'sremaining silent in court, the applicant submits that since he had been silent in policedetention this would have furnished grounds if he gave evidence in court for *46 Article3 inferences to come into play, i.e. failure to mention facts which were later relied on in

Page13

his defence. On this view the applicant's position was irrevocably prejudiced from hisinitial 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 tounderstand the significance of the warnings given to him pursuant to the 1988 Orderbefore he was advised by his solicitor. The caution under Article 6 is also subject to thelimitation that it may only be given where a police officer has reasonable belief that thepresence of a person at a particular place or at a particular time may be attributable tohis participation in the offence alleged to have been committed there. In light of theapplicant's presence in a house where a suspected IRA informer was being heldprisoner and interrogated, the Commission does not consider that the application of thisprovision to the applicant was arbitrary or unreasonable. To the extent that the applicantcomplains of the restrictions of his access to his solicitor during his detention by thepolice and the way this impinged on his defence, the Commission proposes to examinethis issue separately. 16

63. The Commission has also considered the significance of the fact that the applicantwould, if he had given evidence in his defence, have been required to do so on oath. Itappears from the submissions of the parties that a conviction for perjury if an accusedlied rather than incriminated himself would be possible—one example of a prosecutionhas been supplied to the Commission by the applicant. However this case concerned anexceptional situation where both the accused and a police officer were involved in givingalleged perjured testimony to the court and were also facing charges of conspiracy topervert the course of justice. It has not been established before the Commission that therisk of a prosecution for perjury in respect of the evidence given by the accused in hisown defence is a real or significant one. The situation is therefore in essence not verydifferent from that which obtains in other countries where the accused may not testify onoath and where his refusal to answer questions or to account for certain facts may be animportant element in the evaluation of the evidence against him. In any case, theCommission does not find that the conduct of the applicant in the present case withregard to his decision not to give evidence in court was influenced by any fear ofprosecution.

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

65. Consequently, the Commission finds that the applicant was not deprived of a fairtrial contrary to the requirements of Article 6(1) of *47 the Convention nor that his rightto presumption of innocence was violated contrary to Article 6(2) of the Convention.

Conclusion

66. The Commission concludes, by 15 votes to 2, that there has been no violation ofArticle 6(1) or (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 ofthe criminal proceedings brought against him. He submits that in Northern Ireland thepreliminary investigations by the police take on special importance in light of theprovisions of the 1988 Order which allow inferences to be drawn if an accused fails torespond 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 wasinterviewed 10 times by the police, while after he had seen his solicitor he wasinterviewed twice more by the police in the solicitor's absence. This, in the applicant'ssubmission, influenced the position of the defence and affected the fairness of his trialcontrary to Article 6(1) and (3)(c) of the Convention, particularly in view of the “verystrong inferences” which were drawn by the judge from the applicant's failure to give anexplanation to the police of his presence in the house where L was held captive.

Page14

68. The Government contends that the 48 hour delay did not disadvantage the applicantin the conduct of his defence. His position was one of resolute refusal to answerquestions both before and after he saw his solicitor and his position was not prejudicedor affected in any way. As regards the refusal of permission to the applicant's solicitor tobe present during the subsequent interviews with the police, the Government states thatthis too did not affect the conduct of the applicant's defence and disclosed no violationof Article 6 of the Convention.

69. The Commission recalls that the Convention does not expressly guarantee the rightof an accused to communicate freely with his defence counsel for the preparation of hisdefence or otherwise, or for the defence counsel to be present during pre-trialexaminations. Article 6(3)(c) , which reflects a specific aspect of the general concept ofa fair trial set out in the paragraph 1 of the same Article, confers the right on an accusedto defend himself through legal assistance. The Commission recalls that the Conventionis intended to guarantee rights which are not theoretical or illusory but rights that arepractical and effective; this is of particular relevance to the rights of the defence giventhe prominent place held in a democratic society by the right to a fair trial. 17 Restrictionson an accused's access to his lawyer and the *48 refusal to allow the lawyer to attendduring examinations of his client may influence the material position of the defence atthe trial and therefore also the outcome of the proceedings. The Court and theCommission have accordingly considered that guarantees of Article 6 normally extendto an accused the right to assistance and support by a lawyer throughout theproceedings. 18

70. In the absence, however, of an express provision it cannot be excluded that the rightof access to and support by a lawyer during proceedings may be susceptible ofrestrictions. 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 theproceedings as a whole, an accused has been deprived of a fair hearing.

71. In the present case, the Commission recalls that, as the Government points out, theapplicant 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, partlybecause he had already been silent and Article 6 was already triggered and partlybecause he would not be able to attend the interviews to ensure their fairness. TheCommission notes that the applicant's silence during his detention by the police alsohad significance for the conduct of his trial in that, if he chose to give evidence in hisdefence, Article 3 would have permitted inferences to be drawn from his failure tomention any facts relied on in his defence to the police. The domestic case law indicatesthat silence by an accused in police detention prior to his receiving the advice of hissolicitor is not generally excepted from the drawing of inferences under the 1988 Order.19

72. The fact that, according to the 1988 Order, adverse inferences could be drawn fromthe applicant's failure to answer questions by the police or to account for certain factsalready at the pre-trial stage is an element which made it particularly important for theapplicant 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'srights of defence were adversely affected by the restrictions on his access to a solicitorand that these restrictions were not in conformity with his right to a fair hearing underArticle 6(1) and his right to legal assistance under Article 6(3)(c) of the Convention.

Conclusion

74. The Commission concludes, by 13 votes to 4, that there has been a violation ofArticle 6(1) in conjunction with Article 6(3)(c) of the Convention as regards theapplicant's lack of access to a solicitor. *49

D. Article 14 of the Convention

75. Article 14 of the Convention provides:

Page15

The enjoyment of the rights and freedoms set forth in this Convention shall be secured withoutdiscrimination on any ground such as sex, race, colour, language, religion, political or otheropinion, national or social origin, association with a national minority, property, birth or otherstatus.

76. The applicant submits that the practice regarding access of solicitors to suspects inNorthern Ireland is in violation of Article 14 in conjunction with Article 6 of theConvention. He refers in particular to the practice whereby solicitors in Northern Irelandare not permitted to be present at any stage while a person arrested under prevention ofterrorism provisions is being interviewed, whereas all detained suspects in England andWales may on request have a solicitor present.

77. The Government states that the police in England and Wales have powers to delayaccess to a solicitor similar to those of the police in Northern Ireland in which respectthere is accordingly no difference in treatment. In so far as there is a difference intreatment between terrorist suspects in England and Wales and in Northern Ireland withregard to the presence of solicitors during interviews, the Government submits this isbased solely on the geographical location at which a person was arrested and detainedand does not therefore constitute discriminatory treatment within the meaning of Article14 of the Convention.

78. In view of its finding in paragraph 74 above, the Commission does not consider itnecessary to examine the complaint that the applicant, as a result of his denial ofaccess to a solicitor, suffered discrimination contrary to Article 14 in conjunction withArticle 6 . 20

Conclusion

79. The Commission concludes, by 14 votes to 3, that it is not necessary to examinewhether there has been a violation of Article 14 in conjunction with Article 6 of theConvention.

E. Recapitulation

80. The Commission concludes, by 15 votes to 2, that there has been no violation ofArticle 6(1) or (2) of the Convention as regards the applicant's right to silence. 21

81. The Commission concludes, by 13 votes to 4, that there has been a violation ofArticle 6(1) in conjunction with Article 6(3)(c) of the Convention as regards theapplicant's lack of access to a solicitor. 22

82. The Commission concludes, by 14 votes to 3, that it is not *50 necessary toexamine whether there has been a violation of Article 14 in conjunction with Article 6 ofthe Convention. 23

Concurring Opinion of Mr H. G. Schermers

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

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

The main argument raised against the presence of a solicitor is that not all solicitors arealways co-operative in finding the truth. For them, obtaining the best position for thedefence during trial may take priority over finding the truth. Often solicitors recommend

Page16

silence rather than co-operation. In the absence of a solicitor a voluntary confessionmay be more easily obtained. Finding the truth is in the general interest and in theinterest 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 notinvolved 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 anyinterrogation. First, the solicitor has an interest in knowing all facts of the prosecution. Itis in the interest of a fair trial that the solicitor should hear statements of a suspect. Apolice report on a detainee's statement may use different wording and may not exactlyreflect hesitations and accents in the statement. Second, a suspect is under the fullpower of the police and may easily be subject to undue pressure. To prevent suchundue 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 arestronger 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 theinterrogation without permitting him to speak with the detainee.

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(1) inconjunction with Article 6(3)(c) of the Convention in regard to the applicant's lack ofaccess to a solicitor, but I am unable to endorse their conclusion that Article 6(1) and (2)have not been violated in respect of the applicant's right to silence.

The majority acknowledge in paragraph 52 of the Report that the *51 Court in Funke 24

has recently held that everyone charged with a criminal offence, within the autonomousmeaning of this expression in Article 6, is entitled to remain silent and not to contributeto incriminating himself.

More recently still, in the case of Saunders v. United Kingdom, 25 the Commission itselfheld by an overwhelming majority of 14 votes to 1 as follows:

The privilege against self-incrimination is an important element in safeguarding an accused fromoppression and coercion during criminal proceedings. The very basis of a fair trial presupposesthat the accused is afforded the opportunity of defending himself against charges brought againsthim. The position of the defence is undermined if the accused is under compulsion, or has beencompelled, to incriminate himself. 26

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

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

In the present case, the applicant was denied access to a solicitor for 48 hours, duringwhich time he was interviewed 10 times by the police. Furthermore, after he had beengiven 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 theapplicant's silence during his detention by the police also had significance for the

Page17

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 havepermitted adverse inferences to be drawn from his initial failure to mention any factsrelied on in his defence to the police. The domestic case law demonstrates thatinferences can still be drawn under the 1988 Order even where the accused was silentin police detention prior to having *52 access to legal advice. This being the case, theapplicant's position was irretrievably prejudiced from the time of his initial silence inpolice detention before his first contact with a solicitor. The position is furtheraggravated by the absence from the mandate of Article 3 of the Order of acorresponding obligation on the police to keep an official record or to take atape-recording of the preliminary questioning.

The majority considered this situation significant for the conduct of his trial but only drewthe conclusion that there was a violation of Article 6(1) in that the restrictions on hisaccess 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 ofArticle 6(1), in that the applicant was deprived of a fair trial by the drawing ofincriminating inferences from his failure to answer questions by the police at the pre-trialstage of the proceedings before he had had the benefit of legal advice. To my mind, thequestion of access to a solicitor is inextricably entwined with that of the drawing ofadverse inferences from pre-trial silence under police questioning while the suspect isbeing held incommunicado. In the instant case, the effect of the abridgement of the rightto silence by the application of the provisions of the 1988 Order coupled with the denialof access to a solicitor in the early stages of detention was such as to deprive theapplicant of the benefit of a fair trial. There has, accordingly, been a further violation ofArticle 6(1) in this respect.

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

All persons (whatever their antecedents) are presumed innocent until proven guilty aftera fair trial in which the prosecutor bears the burden of proving guilt beyond a reasonabledoubt. The right to remain silent throughout the pre-trial and trial stages of the criminalproceedings is an essential dimension of that presumption. To require the accused totestify shifts the burden of proof from the prosecution to the accused. To permit thedrawing of incriminating inferences from the silence of the accused dilutes the quality ofthe evidence required to prove guilt since the incriminating inferences permit the court toestablish the guilt of the accused on the basis of evidence which might otherwise beinadequate to sustain a conviction.

As far as the present case goes, the case against the applicant (apart from the adverseinferences subsequently drawn) rested essentially on L's evidence, the police informerwho was falsely imprisoned in the house in question and who the trial judge acceptedwas 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, whostated that the applicant's presence in the house at the time the police arrived wasrecent and innocent. The only other evidence was that of the police officers who testifiedthat, at the time of their entry into the house, the applicant was half way down the flightof *53 stairs from the half-landing to the hall and wearing a raincoat over his otherclothes. Against this, M had stated that the applicant, who entered the house in hiscompany after hearing the whining noise of police jeeps, had run up the stairs to awindow to ascertain the whereabouts of the police.

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

In the circumstances of the present case, it was something of an extravagance for the

Page18

courts to describe the evidence against the applicant, before the adverse inferenceswere drawn, as “formidable” . Indeed, it seems to me that it constituted, without theincriminating inferences, insufficient proof of guilt beyond reasonable doubt.

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 casebeen no violation of Article 6(1) and/or (2) of the Convention in so far as adverseinferences were drawn by the domestic courts from the failure of the applicant to answerpolice questions or to give evidence at his trial.

I also agree with the reasoning of the majority of the Commission in paragraphs 47–66of 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 attachconsiderable importance to the fact that adverse inferences under the 1988 Order aredrawn by a judge sitting without a jury. Not only is a judge, by his training and legalexperience, likely to be better equipped than a lay juryman to draw only such inferencesas are justified from a defendant's silence but, as pointed out by the Commission, ajudge in Northern Ireland gives a reasoned judgment as to the grounds on which hedecides to draw inferences and the weight which he gives to such inferences in anyparticular case: whether the inferences have been properly drawn in all thecircumstances and whether proper weight has been given to them by the trial judge isthen subject to review by the Court of Appeal in Northern Ireland. The same safeguardsagainst unfairness do not appear to me to exist in the case of a jury trial. When it is ajury which must decide, without giving reasons, what adverse inferences, if any, to drawagainst an accused *54 from his silence and what weight to attach to such inferences inarriving at a verdict, the risk of unfairness occurring appears to me to be substantiallyincreased, 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 toremain silent in the face of police questioning is also a significant safeguard againstunfairness. In this regard I note that in the recent Report of the Royal Commission onCriminal Justice, the minority of the Royal Commission, who were in favour of changingthe existing rules in England and Wales to permit adverse comment on silence in theface of police questioning, were only prepared to see this change if the accused had atleast been offered the opportunity of taking legal advice before answering questions putby the police.

Under the 1988 Order there is no requirement that an accused should have had accessto legal advice before adverse inferences can be drawn from his silence: on thecontrary, in the case of R. v. Dermott Quinn the Court of Appeal in Northern Irelandupheld the trial judge's rejection of a submission to the effect that the provisions of the1988 Order should be read subject to section 15 of the 1987 Act and that an adverseinference under Article 3 of the 1988 Order should not be drawn where an accused hadasked for access to a solicitor but been interviewed by the police before his solicitorarrived to advise him.

Nevertheless, the fact that an accused has been denied access to a solicitor is not anirrelevant consideration, the Court of Appeal commenting in the same case that thedenial of access in breach of the provisions of section 15 of the 1987 Act may justify ajudge 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 beavailable to an accused, it does not in my view follow that the drawing of inferencesfrom the silence of an accused who has not had such access will inevitably result inunfairness: whether it does or not will depend on all the circumstances of the particularcase.

In the present case, inferences were drawn by the trial judge against the applicant underArticle 6 of the Order by reason of his failure to account for his presence in the house at124 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

Page19

the benefit of legal advice. However, I do not consider that the drawing of inferencesunder the Article (or under Article 4 of the Order by reason of his refusing to giveevidence in his own defence) deprived the applicant in all the circumstances of a fairtrial. 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: theevidence of L as to the applicant's involvement, and the police evidence as to thecircumstances in which the applicant had been found in the house, gave rise to what theCourt of Appeal described as a “formidable case” against the applicant of aiding andabetting the kidnapping of L; *55

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

(iii) the applicant remained silent both before and after he had seen his solicitor and there isnothing to suggest that his persistent refusal to answer any questions put to him by thepolice 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 ofadverse 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'sdefence rights were affected and that he was deprived of a fair hearing in consequenceof the restrictions placed on his access to a solicitor.

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

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

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

In my view the difference in practice is not capable of amounting to discriminatorytreatment for the purposes of Article 14. Article 14 is not concerned with all differencesin treatment but only with differences related to personal characteristics. As the Courtpointed out in Kjeldsen, Busk Madsen and Pedersen , 27

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

In so far as there exists a difference in the treatment of detained suspects in the twojurisdictions with regard to their access to solicitors, this difference is not based onpersonal status or characteristics but on the geographical location where the suspect isarrested and detained. *56 Such a difference does not amount to discriminatorytreatment within the meaning of Article 14 of the Convention.

Partly Dissenting Opinion of Mr F. Martinez

Page20

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

Dissenting Opinion of Mr L. Loucaides

I am unable to agree with the conclusion of the majority that in this case there has beenno violation of Article 6(1) or (2) of the Convention as regards the applicant's right tosilence.

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

I had the opportunity in my dissenting opinion in the Saunders case 28 to explain that thepresumption of innocence safeguarded under Article 6(2) of the Convention entails theright to remain silent and not to be compelled to incriminate oneself. The right inquestion aims at the protection of the innocent against abuses by law-enforcingagencies. Therefore it is particularly important to secure this right during pre-trial policedetention.

Subject to the following, I share the view of Amnesty International 29 according to whicha system which permits adverse inferences to be drawn against an accused personbecause of his silence is inconsistent with the right to remain silent. I believe that thisview should only be applicable as regards the exercise of such right at pre-trial stageswhen the danger of abuses by state organs ( i.e. the raison d'être of the right) exist andnot at the stage when the accused chooses to offer no explanation to the court after aprima 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 judicialproceedings, there are other factors which distinguish the above-mentioned two stagesfor 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 legalguidance of a counsel, lacks the necessary safeguards for an effective presentation ofhis version in an inherently coercive setting in which the prosecutorial forces have theupper hand. Although he may not be guilty he may not be in a position to establisheffectively his innocence. In this respect it is useful to recall that the Commission foundthat in this case there has been a violation of Article 6(1) in conjunction with Article6(3)(c) of the Convention as regards the applicant's lack of access to a solicitor duringthe 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 anaccount to the police of his presence in the house *57 where L was imprisoned, wasrelied 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 ofinnocence which is protected in absolute terms in Article 6(2) of the Convention.

FINAL SUBMISSIONS TO THE COURT

38. The Government invited the Court to find that the applicant's complaints of a breach of Article 6(1)and (2) and of Article 6(1) and (3)(c) read in conjunction with Article 14 disclose no breach of theConvention.

39. The applicant submitted that the provisions of the 1988 Order which permit inferences to bedrawn from the failure of the accused to answer police questions or to give evidence and its use indetermining the guilt of the applicant, violated Article 6(1) and (2) of the Convention. Secondly, thatthe drawing of adverse inferences and the restrictions which the Order imposed on the conduct of thedefence also violated those provisions. Thirdly, he invited the Court to hold that the denial of accessto a solicitor while in police custody amounted to a violation of Article 6(3)(c) of the Convention.

JUDGMENT

Page21

I. Alleged violation of Article 6 of the Convention

40. The applicant alleged that there had been a violation of the right to silence and the right not toincriminate oneself contrary to Article 6(1) and (2) of the Convention. He further complained that hewas denied access to his solicitor in violation of Article 6(1) in conjunction with paragraph 3(c) of theConvention. The relevant provisions provide as follows:

1. In the determination of … any criminal charge against him, everyone is entitled to a fair andpublic hearing within a reasonable time by an independent and impartial tribunal established bylaw …

2. Everyone charged with a criminal offence shall be presumed innocent until proved guiltyaccording to law.

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 hasnot sufficient means to pay for legal assistance, to be given it free when the interests ofjustice so require;

The Court will examine each of these allegations in turn.

A. Article 6(1) and (2): right to silence

41. In the submission of the applicant, the drawing of incriminating inferences against him under theCriminal Justice (Northern Ireland) Order 1988 ( “the Order” ) violated Article 6(1) and (2) of the *58Convention. It amounted to an infringement of the right to silence, the right not to incriminate oneselfand the principle that the prosecution bear the burden of proving the case without assistance from theaccused.

He contended that a first, and most obvious element of the right to silence is the right to remain silentin the face of police questioning and not to have to testify against oneself at trial. In his submission,these have always been essential and fundamental elements of the British criminal justice system.Moreover the Commission in Saunders v. United Kingdom 30 and the Court in Funke v. France 31 haveaccepted that they are an inherent part of the right to a fair hearing under Article 6. In his view theseare absolute rights which an accused is entitled to enjoy without restriction.

A second, equally essential element of the right to silence was that the exercise of the right by anaccused would not be used as evidence against him in his trial. However, the trial judge drew verystrong inferences, under Articles 4 and 6 of the Order, from his decision to remain silent under policequestioning and during the trial. Indeed, it was clear from the trial judge's remarks and from thejudgment of the Court of Appeal in his case that the inferences were an integral part of his decision tofind him guilty.

Accordingly, he was severely and doubly penalised for choosing to remain silent: once for his silenceunder police interrogation and once for his failure to testify during the trial. To use against him silenceunder police questioning and his refusal to testify during trial amounted to subverting the presumptionof innocence and the onus of proof resulting from that presumption: it is for the prosecution to provethe accused's guilt without any assistance from the latter being required.

42. Amnesty International submitted that permitting adverse inferences to be drawn from the silenceof the accused was an effective means of compulsion which shifted the burden of proof from theprosecution to the accused and was inconsistent with the right not to be compelled to testify againstoneself or to confess guilt because the accused is left with no reasonable choice betweensilence—which will be taken as testimony against oneself—and testifying. It pointed out that Article14(3)(g) of the United Nations International Covenant on Civil and Political Rights explicitly providesthat an accused shall “not be compelled to testify against himself or to confess guilt” . Reference wasalso made to Rule 42(A) of the Rules of Procedure and Evidence of the International CriminalTribunal for the Former Yugoslavia which expressly provides that a suspect has the right to remain

Page22

silent and to the Draft Statute for an International Criminal Court , submitted to the United NationsGeneral Assembly by the *59 International Law Commission, which in Draft Article 26(6)(a)(i)qualifies the right to silence with the words “without such silence being a consideration in thedetermination of guilt or innocence” .

Liberty and others made similar submissions. Justice stressed that such encroachments on the rightto silence increased the risk of miscarriages of justice.

The Northern Ireland Standing Advisory Commission on Human Rights, for its part, considered thatthe right to silence was not an absolute right, but rather a safeguard which might, in certaincircumstances, be removed provided other appropriate safeguards for accused persons wereintroduced to compensate for the potential risk of unjust convictions.

43. The Government contended that what is at issue is not whether the Order as such is compatiblewith the right to silence but rather whether, on the facts of the case, the drawing of inferences underArticles 4 and 6 of the Order rendered the criminal proceedings against the applicant unfair contraryto Article 6 of the Convention.

They maintained, however, that the first question should be answered in the negative. Theyemphasised that the Order did not detract from the right to remain silent in the face of policequestioning and explicitly confirmed the right not to have to testify at trial. They further noted that theOrder in no way changed either the burden or the standard of proof: it remained for the prosecution toprove an accused's guilt beyond reasonable doubt. What the Order did was to confer a discretionarypower to draw inferences from the silence of an accused in carefully defined circumstances. Theymaintained that this did not, of itself, violate the right to silence.

In this respect, they emphasised the safeguards governing the drawing of inferences under the Orderwhich had been highlighted in national judicial decisions. 32 In particular, it had been consistentlystressed by the courts that the Order merely allows the trier of fact to draw such inferences ascommon sense dictates. The question in each case is whether the evidence adduced by theprosecution is sufficiently strong to call for an answer.

With regard to the international standards to which reference had been made by AmnestyInternational, it was contended that they did not demonstrate any internationally-accepted prohibitionon the drawing of common sense inferences from the silence of an accused whether at trial orpre-trial. In particular, the Draft Statute for an International Criminal Court is far from final and cannotbe said to have been adopted by the international community.

As to the question whether, on the facts of the case, the drawing of inferences under Articles 4 and 6of the Order rendered the criminal proceedings against the applicant unfair, the Governmentcomprehensively analysed the trial court's assessment of the evidence *60 against the applicant. Onthe basis of this analysis they submitted that on the evidence adduced against the applicant by theCrown, the Court of Appeal was right to conclude that a formidable case has been made out againsthim which deeply implicated him in the false imprisonment of Mr L and that this case “called for ananswer” . The drawing of inferences therefore had been quite natural and in accordance with commonsense.

44. The Court must, confining its attention to the facts of the case, consider whether the drawing ofinferences against the applicant under Articles 4 and 6 of the Order rendered the criminalproceedings against him—and especially his conviction—unfair within the meaning of Article 6 of theConvention. It is recalled in this context that no inference was drawn under Article 3 of the Order. It isnot the Court's role to examine whether, in general, the drawing of inferences under the schemecontained in the Order is compatible with the notion of a fair hearing under Article 6. 33

45. Although not specifically mentioned in Article 6 of the Convention, there can be no doubt that theright to remain silent under police questioning and the privilege against self-incrimination aregenerally recognised international standards which lie at the heart of the notion of a fair procedureunder Article 6. 34 By providing the accused with protection against improper compulsion by theauthorities these immunities contribute to avoiding miscarriages of justice and to securing the aim ofArticle 6.

46. The Court does not consider that it is called upon to give an abstract analysis of the scope ofthese immunities and, in particular, of what constitutes in this context “improper compulsion” . What isat stake in the present case is whether these immunities are absolute in the sense that the exercise

Page23

by an accused of the right to silence cannot under any circumstances be used against him at trial or,alternatively, whether informing him in advance that, under certain conditions, his silence may beused, is always to be regarded as “improper compulsion” .

47. On the one hand, it is self-evident that is incompatible with the immunities under consideration tobase a conviction solely or mainly on the accused's silence or on a refusal to answer questions or togive evidence himself. On the other hand, the Court deems it equally obvious that these immunitiescannot and should not prevent that the accused's silence, in situations which clearly call for anexplanation from him, be taken into account in assessing the persuasiveness of the evidenceadduced by the prosecution.

Wherever the line between these two extremes is to be drawn, it follows from this understanding of“the right to silence” that the *61 question whether the right is absolute must be answered in thenegative.

It cannot be said therefore that an accused's decision to remain silent throughout criminalproceedings should necessarily have no implications when the trial court seeks to evaluate theevidence against him. In particular, as the Government has pointed out, established internationalstandards in this area, while providing for the right to silence and the privilege againstself-incrimination, are silent on this point.

Whether the drawing of adverse inferences from an accused's silence infringes Article 6 is a matter tobe determined in the light of all the circumstances of the case, having particular regard to thesituations where inferences may be drawn, the weight attached to them by the national courts in theirassessment of the evidence and the degree of compulsion inherent in the situation.

48. As regards the degree of compulsion involved in the present case, it is recalled that the applicantwas in fact able to remain silent. Notwithstanding the repeated warnings as to the possibility thatinferences might be drawn from his silence, he did not make any statements to the police and did notgive evidence during his trial. Moreover under Article 4(5) of the Order he remained anon-compellable witness (see para. 27 above). Thus his insistence in maintaining silence throughoutthe proceedings did not amount to a criminal offence or contempt of court. Furthermore, as has beenstressed in national court decisions, silence, in itself, cannot be regarded as an indication of guilt. 35

49. The facts of the present case accordingly fall to be distinguished from those in Funke v. France 36

where criminal proceedings were brought against the applicant by the customs authorities in anattempt to compel him to provide evidence of offences he had allegedly committed. Such a degree ofcompulsion in that case was found by the Court to be incompatible with Article 6 since, in effect, itdestroyed the very essence of the privilege against self-incrimination.

50. Admittedly a system which warns the accused—who is possibly without legal assistance (as in theapplicant's case)—that adverse inferences may be drawn from a refusal to provide an explanation tothe police for his presence at the scene of a crime or to testify during his trial, when taken inconjunction with the weight of the case against him, involves a certain level of indirect compulsion.However, since the applicant could not be compelled to speak or to testify, as indicated above, thisfactor on its own cannot be decisive. The Court must rather concentrate its attention on the roleplayed by the inferences in the proceedings against the applicant and especially in his conviction.

51. In this context, it is recalled that these were proceedings without *62 a jury, the trier of fact beingan experienced judge. Furthermore, the drawing of inferences under the Order is subject to animportant series of safeguards designed to respect the rights of the defence and to limit the extent towhich reliance can be placed on inferences.

In the first place, before inferences can be drawn under Article 4 and 6 of the Order appropriatewarnings must have been given to the accused as to the legal effects of maintaining silence.Moreover, as indicated by the judgment of the House of Lords in R. v. Kevin Sean Murray theprosecutor must first establish a prima facie case against the accused, i.e. a case consisting of directevidence which, if believed and combined with legitimate inferences based upon it, could lead aproperly directed jury to be satisfied beyond reasonable doubt that each of the essential elements ofthe offence is proved. 37

The question in each particular case is whether the evidence adduced by the prosecution issufficiently strong to require an answer. The national court cannot conclude that the accused is guiltymerely because he chooses to remain silent. It is only if the evidence against the accused “calls” for

Page24

an explanation which the accused ought to be in a position to give that a failure to give an explanation“may as a matter of common sense allow the drawing of an inference that there is no explanation andthat the accused is guilty” . Conversely if the case presented by the prosecution had so little evidentialvalue that it called for no answer, a failure to provide one could not justify an inference of guilt. 38 Insum, it is only common sense inferences which the judge considers proper, in the light of theevidence against the accused, that can be drawn under the Order.

In addition, the trial judge has a discretion whether, on the facts of the particular case, an inferenceshould be drawn. As indicated by the Court of Appeal in the present case, if a judge accepted that anaccused did not understand the warning given or if he had doubts about it, “we are confident that hewould not activate Article 6 against him” . 39 Furthermore in Northern Ireland, where trial judges sitwithout a jury, the judge must explain the reasons for the decision to draw inferences and the weightattached to them. The exercise of discretion in this regard is subject to review by the appellate courts.

52. In the present case, the evidence presented against the applicant by the prosecution wasconsidered by the Court of Appeal to constitute a “formidable” case against him. 40 It is recalled thatwhen the police entered the house some appreciable time after they knocked on the door, they foundthe applicant coming down the flight of stairs in the house where Mr L had been held captive by theIRA. Evidence had been given by Mr L—evidence which in the opinion of the trial judge had beencorroborated—that he had been forced to make a taped *63 confession and that after the arrival ofthe police at the house and the removal of his blindfold he saw the applicant at the top of the stairs.He had been told by him to go downstairs and watch television. The applicant was pulling a tape outof a cassette. The tangled tape and cassette recorder were later found on the premises. Evidence bythe applicant's co-accused that he had recently arrived at the house was discounted as not beingcredible. 41

53. The trial judge drew strong inferences against the applicant under Article 6 of the Order by reasonof his failure to give an account of his presence in the house when arrested and interrogated by thepolice. He also drew strong inferences under Article 4 of the Order by reason of the applicant's refusalto give evidence in his own defence when asked by the court to do so. 42

54. In the Court's view, having regard to the weight of the evidence against the applicant, as outlinedabove, the drawing of inferences from his refusal, at arrest, during police questioning and at trial, toprovide an explanation for his presence in the house was a matter of common sense and cannot beregarded as unfair or unreasonable in the circumstances. As pointed out by the Delegate of theCommission, the courts in a considerable number of countries where evidence is freely assessed mayhave regard to all relevant circumstances, including the manner in which the accused has behaved orhas conducted his defence, when evaluating the evidence in the case. It considers that, whatdistinguishes the drawing of inferences under the Order is that, in addition to the existence of thespecific safeguards mentioned above, it constitutes, as described by the Commission, “a formalisedsystem which aims at allowing common sense implications to play an open role in the assessment ofevidence” .

Nor can it be said, against this background, that the drawing of reasonable inferences from theapplicant's behaviour had the effect of shifting the burden of proof from the prosecution to the defenceso as to infringe the principle of the presumption of innocence.

55. The applicant submitted that it was unfair to draw inferences under Article 6 of the Order from hissilence at a time when he had not had the benefit of legal advice. In his view the question of access toa solicitor was inextricably entwined with that of the drawing of adverse inferences from pre-trialsilence under police questioning. In this context he emphasised that under the Order once anaccused has remained silent a trap is set from which he cannot escape: if an accused chooses togive evidence or to call witnesses, he is, by reason of his prior silence, exposed to the risk of anArticle 3 inference sufficient to bring about a conviction; on the other hand, if he maintains his silenceinferences may be drawn against him under other provisions of the Order. *64

56. The Court recalls that it must confine its attention to the facts of the present case. 43 The reality ofthis case is that the applicant maintained silence right from the first questioning by the police to theend of his trial. It is not for the Court therefore to speculate on the question whether inferences wouldhave been drawn under the Order had the applicant, at any moment after his first interrogation,chosen to speak to the police or to give evidence at his trial or call witnesses. Nor should it speculateon the question whether it was the possibility of such inferences being drawn that explains why theapplicant was advised by his solicitor to remain silent.

Page25

Immediately after arrest the applicant was warned in accordance with the provisions of the Order butchose to remain silent. The Court, like the Commission, observed that there is no indication that theapplicant failed to understand the significance of the warning given to him by the police prior to seeinghis solicitor. Under these circumstances the fact that during the first 48 hours of his detention theapplicant had been refused access to a lawyer does not detract from the above conclusion that thedrawing of inferences was not unfair or unreasonable. 44

Nevertheless, the issue of denial of access to a solicitor, has implications for the rights of the defencewhich call for a separate examination. 45

57. Against the above background, and taking into account the role played by inferences under theOrder during the trial and their impact on the rights of the defence, the Court does not consider thatthe criminal proceedings were unfair or that there had been an infringement of the presumption ofinnocence.

58. Accordingly, there has been no violation of Article 6(1) and (2) of the Convention.

B. Access to a lawyer

59. The applicant submitted that he was denied access to a lawyer at a critical stage of the criminalproceedings against him. He pointed out that in Northern Ireland the initial phase of detention is ofcrucial importance in the context of the criminal proceedings as a whole because of the possibility ofinferences being drawn under Articles 3, 4 and 6 of the Order.

He was in fact denied access to any legal advice for 48 hours. During that time Article 3 and Article 6cautions had been administered without his having had the benefit of prior legal advice. He wasinterviewed on 12 occasions without a solicitor being present to *65 represent his interests. When hewas finally granted access to his solicitor he was advised to remain silent partly because he hadmaintained silence already during the interview and partly because the solicitor would not bepermitted to remain during questioning. The silence which had already occurred prior to seeing hissolicitor would have triggered the operation on both Articles 3 and 6 at any subsequent trial, even hadhe chosen to give an account to the police. Having regard to the very strong inferences which the trialjudge drew under Articles 4 and 6 of the Order, the decision to deny him access to a solicitor unfairlyprejudiced the rights of the defence and rendered the proceedings against him unfair contrary toArticle 6(1) and (3)(c) of the Convention.

60. In the submission of the Government, actual as opposed to notional or theoretical prejudice mustbe shown by an applicant in order to conclude that there had a breach of Article 6(1) . The followingmatters were highlighted in this respect.

In the first place, the applicant did not seek to challenge by way of judicial review the exercise of thestatutory power to delay access to a lawyer for up to 48 hours. The power is designed, inter alia , tolimit the risk of interference with the vital information-gathering process and the risk that a personinvolved in an act of terrorism or still at large may be alerted. The denial of access was therefore abona fide exercise of necessary and carefully designed statutory powers on reasonable grounds.

Secondly, as accepted by the Commission, the inferences drawn under Articles 4 and 6 of the Orderwere not the only evidence against the applicant. Furthermore the delay of access to a lawyer was fora limited period of 48 hours. Thereafter he had access to lawyers of his own choosing. He wasrepresented both at his trial and on appeal by experienced solicitors and counsel and was in receiptof legal aid.

The Government did not accept that the applicant was irretrievably prejudiced in his defence becauseof the denial of access. They submitted that if, having consulted his solicitor, he had accounted forthis presence at the scene of the crime and put forward an innocent explanation, it would have beenextremely unlikely that Article 3 or Article 6 inferences would have been drawn. Moreover there wasnothing to suggest, in his attitude or actions, that he would have acted differently had he seen asolictor from the beginning. He had consistently refused to answer any questions put to him, bothbefore and after he had consulted with his solicitor. In order to make out a case of actual prejudice itmust be alleged by the applicant that if he had been able to consult his solicitor earlier he would haveacted differently.

In sum, a limited delay of access to a lawyer did not cause any actual prejudice to the applicant's

Page26

defence.

61. Amnesty International and Liberty and others, stressed that access to a lawyer when in policecustody is an integral part of *66 well-established international standards concerning protectionagainst the dangers of incommunicado detention. It was also a vital element in enabling access to theprocedural guarantees of the courts in respect of illegal detention. They both stressed, inter alia , thatin the context of Northern Ireland where adverse inferences could be drawn from the applicant'sfailure to answer questions by the police it was particularly important to be assisted by a solicitor at anearly stage.

The Northern Ireland Standing Advisory Commission on Human Rights considered that it was verymuch in the public interest that those detained for questioning should have immediate access to legaladvice.

62. The Court observes that it has not been disputed by the Government that Article 6 applies even atthe stage of the preliminary investigation into an offence by the police. In this respect it recalls itsfinding in the Imbrioscia v. Switzerland judgment of 24 November 1993 that Article 6 —especiallyparagraph 3—may be relevant before a case is sent for trial if and so far as the fairness of the trial islikely to be seriously prejudiced by an initial failure to comply with its provisions. 46 As it pointed out inthat judgment, the manner in which Article 6(3)(c) is to be applied during the preliminary investigationdepends on the special features of the proceedings involved and on the circumstances of the case. 47

63. National laws may attach consequences to the attitude of an accused at the initial stages of policeinterrogation which are decisive for the prospects of the defence in any subsequent criminalproceedings. In such circumstances Article 6 will normally require that the accused be allowed tobenefit from the assistance of a lawyer already at the initial stages of police interrogation. However,this right, which is not explicitly set out in the Convention, may be subject to restrictions for goodcause. The question, in each case, is whether the restriction, in the light of the entirety of theproceedings, has deprived the accused of a fair hearing.

64. In the present case, the applicant's right of access to a lawyer during the first 48 hours of policedetention was restricted under section 15 of the Northern Ireland (Emergency Provisions) Act 1987 onthe basis that the police had reasonable grounds to believe that the exercise of the right of accesswould, inter alia , interfere with the gathering of information about the commission of acts of terrorismor make it more difficult to prevent such an act.

65. It is observed that the applicant did not seek to challenge the exercise of this power by institutingproceedings for judicial review although, before the Court, he now contests its lawfulness. The Court,however, has no reason to doubt that it amounted to a lawful exercise of the power to restrict access.Nevertheless, although it is an important element to be taken into account, even a lawfully exercised*67 power of restriction is capable of depriving an accused, in certain circumstances, of a fairprocedure.

66. The Court is of the opinion that the scheme contained in the Order is such that it is of paramountimportance for the rights of the defence that an accused has access to a lawyer at the initial stages ofpolice interrogation. It observes in this context that, under the Order, at the beginning of policeinterrogation, an accused is confronted with a fundamental dilemma relating to his defence. If hechooses to remain silent, adverse inferences may be drawn against him in accordance with theprovisions of the Order. On the other hand, if the accused opts to break his silence during the courseof interrogation, he runs the risk of prejudicing his defence without necessarily removing thepossibility of inferences being drawn against him.

Under such conditions the concept of fairness enshrined in Article 6 requires that the accused has thebenefit of the assistance of a lawyer already at the initial stages of police interrogation. To denyaccess to a lawyer for the first 48 hours of police questioning, in a situation where the rights of thedefence may well be irretrievably prejudiced, is—whatever the justification for suchdenial—incompatible with the rights of the accused under Article 6.

67. The Government has argued, that in order to complain under Article 6 of denial of access to alawyer it must be clear that had the applicant been able to consult with his solicitor earlier, he wouldhave acted differently from the way he did. It is contended that the applicant has not shown this to bethe case.

68. It is true, as pointed out by the Government, that when the applicant was able to consult with his

Page27

solicitor he was advised to continue to remain silent and that during the trial the applicant chose not togive evidence or call witnesses on his behalf. However, it is not for the Court to speculate on what theapplicant's reaction, or his lawyer's advice, would have been had access not been denied during thisinitial period. As matters stand, the applicant was undoubtedly directly affected by the denial ofaccess and the ensuing interference with the rights of the defence. The Court's conclusion as to thedrawing of inferences does not alter that. 48

69. In his written submissions to the Court, the applicant appeared to make the further complaintunder this head that his solicitor was unable to be present during police interviews. However, whetheror not this issue formed part of the complaints admitted by the Commission, in any event itsexamination of the case was limited to that of the question of his access to a lawyer. Moreover, thecase as argued before the Court was, in the main, confined to this issue. In these circumstances, andhaving regard to the Court's finding that he ought to have had access to a lawyer, it is not necessaryto examine this point. *68

70. There has therefore been a breach of Article 6(1) in conjunction with paragraph 3(c) of theConvention as regards the applicant's denial of access to a lawyer during the first 48 hours of hispolice detention.

II. Allegation of a violation of Article 14 in conjunction with Article 6

71. The applicant further complained that the practice in Northern Ireland regarding access ofsolicitors to terrorist suspects was discriminatory, contrary to Article 14 of the Convention taken inconjunction with Article 6 , having regard to the fact that solicitors were not permitted to be present atany stage during the interviewing of suspects by the police unlike their counterparts in England andWales.

72. However, in the light of its conclusion that the denial of access to a solicitor in the present casegave rise to a breach of Article 6(1) in conjunction with paragraph 3(c) of the Convention (see para.69 above), the Court does not consider that it is necessary to examine this issue.

III. Application of Article 50 of the Convention

73. Article 50 of the Convention provides as follows:

If the Court finds that a decision or a measure taken by a legal authority or any other authority ofa High Contracting Party is completely or partially in conflict with the obligations arising from the(…) Convention, and if the internal law of the said Party allows only partial reparation to be madefor the consequences of this decision or measure, the decision of the Court shall, if necessary,afford just satisfaction to the injured party.

A. Pecuniary and non-pecuniary damage

74. The applicant claimed compensation in such amount as the Court might consider equitable for thedamage suffered by him by reason of his conviction and sentence in violation, inter alia , of Article 6of the Convention.

75. The Government, on the other hand, submitted that even in the event of a finding of a violation noaward should be made under this head.

76. The Court agrees. It recalls that its finding of a violation of Article 6 is limited to the applicant'scomplaint concerning access to a solicitor. In its opinion, the finding of a violation is, in itself, sufficientjust satisfaction for the purposes of Article 50 of the Convention.

B. Costs and expenses

77. The applicant claimed £57,263.51 by way of costs and expenses.

78. The Government considered that the applicant's bill of costs was in various respects excessive.

Page28

They submitted that, in the event of the *69 Court finding in favour of the applicant, only £36,241.09should be awarded. However only a proportion of the costs and expenses should be allowed if theCourt were to find that only part of the applicant's complaint gave rise to a breach of the Convention.

79. Bearing in mind that the finding of a violation only relates to the applicant's complaint concerningaccess to a lawyer, the Court awards £15,000 less 37,968.60 FF granted by the Council of Europe byway of legal aid.

C. Default interest

80. According to the information available to the Court, the statutory rate of interest applicable in theUnited Kingdom at the date of adoption of the present judgment is 8 per cent per annum.

For these reasons, THE COURT

1. Holds by 14 votes to 5 that there has been no violation of Article 6(1) and (2) of theConvention arising out of the drawing of adverse inferences on account of the applicant'ssilence;

2. Holds by 12 votes to 7 that there has been a violation of Article 6(1) in conjunction withparagraph 3(c) of the Convention as regards the applicant's lack of access to a lawyer duringthe first 48 hours of his police detention;

3. Holds unanimously that it is not necessary to examine the applicant's complaint of aviolation of Article 14 in conjunction with Article 6 ;

4. Holds unanimously that, as regards pecuniary and non-pecuniary damage, the finding of aviolation of Article 6(1) in conjunction with paragraph 3(c) constitutes, in itself, sufficient justsatisfaction for the purposes of Article 50 of the Convention;

5. Holds unanimously

(a) that the respondent State is to pay, within three months, for costs and expenses £15,000(fifteen thousand pounds), less 37,968.60 FF (thirty-seven thousand nine hundred andsixty-eight French francs) to be converted into pounds sterling at the rate of exchangeapplicable on the date of delivery of the present judgment;

(b) that simple interest at an annual rate of 8 per cent shall be payable from the expiry of theabove-mentioned three months until settlement;

6. Dismisses unanimously the remainder of the claims for just satisfaction.

In accordance with Article 51(2) of the Convention and Rule 53(2) of Rules of Court A , the followingseparate opinions are annexed to this judgment: *70

• joint partly dissenting opinion of Mr Ryssdal, Mr Matscher, Mrs Palm, Mr Foighel, Sir JohnFreeland, Mr Wildhaber and Mr Jungwiert;

• partly dissenting opinion of Mr Pettiti, joined by Mr Valticos;

• partly dissenting opinion of Mr Walsh, joined by Mr Makarczyk and Mr L#hmus.

Joint Partly Dissenting Opinion of Judges Ryssdal, Matscher, Palm, Foighel, Sir John Freeland,Wildhaber and Jungwiert

1. We are unable to agree with the conclusion of the majority that there has been a violation of Article6(1) in conjunction with paragraph 3(c) of the Convention as regards the applicant's lack of access toa solicitor during the first 48 hours of his police detention.

2. We have no difficulty with paragraphs 41–58 of the judgment, in which the Court, after a carefulanalysis, rejects the contention that the criminal proceedings were unfair or that there had been aninfringement of the presumption of innocence and accordingly concludes that there has been noviolation of Article 6(1) and (2) of the Convention. In the course of that analysis the Court points out(para. 44) that it “must, confining its attention to the facts of the case, consider whether the drawing ofinferences against the applicant … rendered the criminal proceedings against him—and especially his

Page29

conviction—unfair within the meaning of Article 6 ” and goes on to say that “ [i]t is not the Court's roleto examine whether, in general, the drawing of inferences under the scheme contained in the Order iscompatible with the notion of a fair hearing under Article 6 …” (emphasis supplied). In our view thisapproach, stressing as it does the actual facts of the case, is entirely correct.

3. When, however, the judgment comes to deal with the question of access to a lawyer, a ratherdifferent approach is adopted. After some general observations about the application of Article 6 atthe stage of preliminary investigation by the police, the Court acknowledges that the right of anaccused to benefit from the assistance of a lawyer “already at the initial stages of police investigation… may be subject to restrictions for good cause” . It adds that the “question, in each case, is whetherthe restriction, in the light of the entirety of the proceedings, has deprived the accused of a fairhearing” . 49

4. The Court then, after giving some consideration to the exercise of the power of restriction undersection 15 of the 1987 Act which took place in this case, expresses in paragraph 66 of the judgmentthe opinion that the scheme contained in the 1988 Order is such that “it is of paramount importancefor the rights of the defence that an accused has access to a lawyer at the initial stages of policeinterrogation” . The paragraph concludes by saying that to “deny access to a lawyer for the first 48hours of police questioning, in a situation where the rights of *71 the defence may well beirretrievably prejudiced, is—whatever the justification for such denial—incompatible with the rights ofthe accused under Article 6” .

5. We consider the focus here to be misdirected. It has not been suggested that in the circumstancesexisting at the relevant time in Northern Ireland it was unreasonable that a power should be availableto a senior police officer under section 15 of the 1987 Act to delay access to a lawyer for a period notexceeding 48 hours when he had reasonable grounds for believing that earlier access would lead tointerference with the gathering of information about acts of terrorism or by alerting any person wouldmake more difficult the prevention of such an act or the apprehension, prosecution or conviction ofany person in connection therewith. As regards the exercise of the power, the Court pointed out inBrannigan and McBride v. United Kingdom 50 that within the period of 48 hours access to a solicitorcan only be delayed where there exist reasonable grounds for doing so. “It is clear” , the Court added,“from judgments of the High Court in Northern Ireland that the decision to delay access to a solicitor issusceptible to judicial review and that in such proceedings the burden of establishing reasonablegrounds for doing so rests on the authorities. In these cases judicial review has been shown to be aspeedy and effective manner of ensuring that access to a solicitor is not arbitrarily withheld ….”

6. In the present case, as paragraph 65 of the judgment observes, although the applicant nowcontests before the Court the lawfulness of the exercise of the power to delay his access to a lawyer,he did not seek to challenge such exercise by instituting proceedings for judicial review. The Courtrightly concludes that it has itself no reason to doubt that the exercise of the power was lawful.

7. In these circumstances, the question to be dealt with by the Court, consistently with the approachfollowed in the earlier part of the judgment, should in our view by whether, on the facts of the case,the drawing of an inference from conduct on the part of the applicant prior to his access to a solicitorrendered the criminal proceedings against him—and especially his conviction—unfair within themeaning of Article 6 of the Convention. As to this, it should be noted that the trial judge had adiscretion as to the drawing of inferences under the 1988 Order and in fact drew no inference againstthe applicant under its Article 3. The refusal of the applicant to give evidence in his own defence whencalled upon at the trial to do so, which formed the basis for the adverse inference drawn by the trialjudge under Article 4 of the 1988 Order, of course took place at a time when legal advice had becomeavailable to him. The issue therefore resolves itself into whether the drawing of an inference againstthe applicant under Article 6 of the 1988 Order by reason of his failure to give an account of *72 hispresence in the house at 124 Carrigart Avenue when cautioned by the police on the evening of 7January 1990—that is, before he obtained access to a lawyer—rendered his trial and convictionunfair.

8. In this context, it should be recalled that—

(a) The caution given to the applicant on the evening of 7 January 1990 warned him quite clearlyof the possibility of an adverse inference being drawn from a failure or refusal on his part toaccount for his presence at 124 Carrigart Avenue. There is no ground for believing that he failedto understand the caution.

(b) He nevertheless remained silent, both before and after he obtained access to legal advice. At

Page30

no stage has he argued that he would or could have provided an innocent explanation.

(c) The applicant's silence in the period before he received legal advice did not necessarily entailprejudice to his defence. Articles 3 and 6 of the 1988 Order had become applicable as a result ofthat silence, but whether adverse inferences would be drawn at the trial was a matter for thejudge (who, as has been noted, drew no such inference under Art. 3). If the judge were to besatisfied—as he might be, if for example the applicant had offered an innocent explanation assoon as he had consulted his solicitor—that in any particular set of circumstances it would not beproper to draw an adverse inference, he would not do so. Clearly, in the present case, heconcluded in the exercise of his discretion that an Article 6 inference could properly be drawn. Nocogent reason has been established for him to have concluded otherwise.

(d) The adverse inferences drawn against the applicant by reason of his conduct either before orafter obtaining access to a solicitor were far from being the sole or even main basis for hisconviction. As paragraph 26 of the judgment recalls, the Court of Appeal in Northern Irelandconsidered, for all the reasons which it gave, that there was “a formidable case” against him.

9. Taking account of these factors, we conclude that the applicant has failed to establish that, in thecircumstances of his case, the drawing of an inference against him by reason of conduct on his partbefore he obtained access to legal advice caused any unfairness in his trial and conviction. Wetherefore do not agree that the delay of access involved a violation of Article 6 . We consider that themajority of the Court, in making the linkage at paragraph 66 between “the scheme contained in theOrder” and the right of access to a lawyer, strays unjustifiably far from the specific circumstances ofthe instant case.

10. To say this is not, of course, to dispute in any way the desirability in principle of early access byan accused to legal advice or that Article 6 may, as the Court found in Imbrioscia v. Switzerland, 51 berelevant *73 before a case is sent for trial so as to safeguard the right to a fair hearing.

Partly Dissenting Opinion of Judge Pettiti, Joined by Judge Valticos (provisional translation)

I consider that there has been a breach of Article 6(1) and (2) of the Convention.

With the majority I voted in favour of holding that there had been a breach of Article 6(1) takentogether with (3)(c), because the applicant was denied access to a solicitor and the benefit of theeffective assistance of a lawyer, at least at the end of the period of police custody.

Nevertheless, on this point I note, in relation to paragraph 66 of the judgment, that the British system,instead of laying down in law the arrangements for access to a solicitor during police custody, leavesthe responsibility to the police authorities.

As regards the common law procedural background, I agree with the comments of Judge Walsh:

In a criminal prosecution the burden of proof of guilt beyond reasonable doubt always rests onthe prosecution. Therefore a prima facie case means one in which the evidential materialpresented by the prosecution, if believed and not rebutted, is sufficient in law to establish the guiltof the accused. In adjudicating on this point the trial judge need not at that stage disclose, orarrive at, his own view as to the truth but he must be satisfied that it is, if believed, objectivelysufficient in law to warrant a verdict of guilty if not rebutted.

…

To rely upon it afterwards appears to me to negative the whole intent of Article 6(2) . To permitsuch a procedure is to permit a penalty to be imposed by a criminal court on an accused becausehe relies upon a procedural right guaranteed by the Convention. I draw attention to the decisionof the Supreme Court of the United States in Griffin v. State of California (1965) 380 US 609 …

I refer, like Judge Walsh, to the decision of the Northern Ireland Court of Appeal and to the Mirandadecision (United States Supreme Court).

The right to silence is a major principle.

Any constraint which has the effect of punishing the exercise of this right, by drawing adverseinferences against the accused, amounts to an infringement of the principle.

Page31

The reasoning would be similar in the procedure of continental legal systems. The fact that the trial orappeal court can base its judgment on its innermost conviction is no obstacle to respecting the right tosilence, since in its reasoning the Court could not derive from the fact that the accused had remainedsilent any information amounting to *74 incriminating evidence. A person charged is free to incur arisk of his own choosing, just as he is free to confess or not to confess, and this is a form of respectfor human dignity.

The principle also corresponds to the doctrine on lawfully or unfairly obtained evidence. Similarfindings have been made in comparative law. 52

The level of certainty to be reached by the judge under the “innermost conviction” system or the“beyond reasonable doubt” system, which is essential in order to arrive at a fair judgment, must notbe achieved by a form of coercion to say something that would lead to a confession. Only in this wayare the presumption of innocence and the status of the accused fully respected, both of which arecentral to the democratic conception of a criminal trial.

Partly Dissenting Opinion of Judge Walsh, Joined by Judges Makarczyk and L#hmus

1. In my opinion there have been violations of Article 6(1) and (2) of the Convention.

The applicant was by Article 6(2) guaranteed a presumption of innocence in the criminal trial of whichhe complains. Prior to the introduction of the Criminal Evidence (Nothern Ireland) Order 1988 a judgetrying a case without a jury could not lawfully draw an inference of guilt from the fact that an accusedperson did not proclaim his innocence. Equally in a trial with a jury it would have been contrary to lawto instruct the jurymen that they could do so. 53 In the same judgment the Northern Ireland Court ofAppeal held that the object and effect of the 1988 Order was to reverse that position.

In the judgment of the House of Lords in the R. v. Kevin Sean Murray case which upheld the decisionof the Northern Ireland court it was pointed out that the time for drawing such inferences as the Orderpurported to permit was after the judge was satisfied that the prosecution had established a primafacie case of the guilt of the accused and that if it had not the accused must be acquitted.

In a criminal prosecution the burden of proof of guilt beyond reasonable doubt always rests on theprosecution. Therefore a prima facie case means one in which the evidential material presented bythe prosecution, if believed and not rebutted, is sufficient in law to establish the guilt of the accused.In adjudicating on this point the trial judge need not at that stage disclose, or arrive at, his own viewas to the truth but he must be satisfied that it is, if believed, objectively sufficient in law to warrant averdict of guilty if not rebutted. *75

The verdict itself cannot be determined until after all the evidence has been received by the court.

2. It is obvious from the House of Lords decision in R. v. Kevin Sean Murray that inferences which arenot to be drawn until a prima facie case has been established cannot form part of the decision as towhether or not a prima facie case has been established notwithstanding Article 3 of the Order.Therefore where the accused has maintained silence that fact cannot be relied upon to establish aprima facie case.

3. To rely upon it afterwards appears to me to negative the whole intent of Article 6(2). To permit sucha procedure is to permit a penalty to be imposed by a criminal court on an accused because he reliesupon a procedural right guaranteed by the Convention. I draw attention to the decision of theSupreme Court of the United States in Griffin v. State of California (1965) 380 US 609 , which dealtwith a similar point in relation to the Fifth Amendment of the Constitution by striking down aCalifornian law which permitted a court to make adverse comment on the accused's decision not totestify.

In Miranda v. Arizona (1966) 384 US 436 , the US Supreme Court affirmed that the constitutionalprotection against self-incrimination contained in the Fifth Amendment guarantees to the individualthe “right to remain silent unless he chooses to speak in the unfettered exercise of his own free will”whether during custodial interrogation or in court.

This Court in its judgment in Funke v. France 54 said that “the special featurs of customs laws cannotjustify (such an infringement) of the right of anyone 'charged with a criminal offence' within theautonomous meaning of that expression in Article 6 , to remain silent and not to contribute toincriminating himself” . 55

Page32

4. I am in agreement with the majority that the refusal to permit the applicant to have his lawyerpresent when he had so requested was also a breach of Article 6 . To round off the account of thecircumstances of the applicant's pre-trial experiences it is to be noted that the facts of the case reveala clear breach of Article 5(3) of the Convention.

5. For the above reasons I have concluded that there has also been a breach of Article 6(2) . *76

1. See para. 27 below.

2. See para. 33 below.

3. See para. 27 below.

4. See para. 21 above.

5. Sub nom. Murray v. Director of Public Prosecutions, [1993] 97 Cr.App.R. 151 .

6. Judgment of the Belfast Crown Court of 23 December 1991 .

7. No. 18731/91.

8. Art. 31.

9. The paragraph numbering from here to paragraph 82 in bold is the original numbering of the Commission's Opinion. Then we revert to thenumbering of the Court's judgment.—Ed.

10. Funke (A/256-A): (1993) 16 E.H.R.R. 297 , para. 44.

11. No. 19187/91, Comm. Rep. 10.5.94.

12. At para. 72.

13. Fair Trial Concerns in Northern Ireland: the Right of Silence, AI Index: EUR 45/02/92.

14. Loc. cit.

15. Loc. cit.

16. See paras. 67–73 below.

17. See e.g. Artico v. Italy (A/37): (1981) 3 E.H.R.R. 1 , para. 33.

18. See e.g. Can v. Austria, No. 9300/81, Comm. Rep. 12.7.84 (A/96): (1986) 8 E.H.R.R. 121, paras. 49 et seq. ; Imbroscia (A/275): (1994)17 E.H.R.R. 441, paras. 59–61, and Comm. Rep. 14.5.92, para. 65 .

19. cf. para. 43 above.

20. Cf. mutatis mutandis e.g. Beldjoudi (A/234-A): (1992) 14 E.H.R.R. 801 , para. 81.

21. Para. 66 above.

22. Para. 74 above.

23. Para. 79 above.

24. See Funke judgment, loc. cit., para. 44.

25. No. 19187/91, Comm. Rep. 10.5.94.

26. Para. 72.

27. (A/23): 1 E.H.R.R. 711 , para. 56.

28. No. 19187/91.

29. Para. 55 of the Report.

30. Comm. Rep., 10.5.94, paras. 71–73.

31. Loc. cit. para. 44.

32. See paras. 24 and 29 above.

33. See, amongst many examples, Brogan and Others (A/145-B): (1989) 11 E.H.R.R. 117 , para. 53.

34. See the Funke judgment, loc. cit.

35. See paras. 24 and 29 above.

36. See para. 41 above.

37. See para. 30 above.

38. Ibid.

39. See para. 31 above.

40. See para. 26 above.

41. See paras. 25 and 26 above.

42. See para. 25 above.

Page33

43. See para. 44 above.

44. See para. 54 above.

45. See paras. 59–69 below.

46. Loc. cit., para. 36.

47. Loc. cit., para. 38.

48. See paras. 43–57 above.

49. Para. 63.

50. Brannigan and McBride (A/258-B): (1994) 17 E.H.R.R. 539 , paras. 24 and 64.

51. See para. 62 of the judgment.

52. See Procedures Pénales en Europe, ed. M. Delmas-Marty, Themis, PUF.

53. See the judgment of the Northern Ireland Court of Appeal in the case of R. v. Kevin Sean Murray .

54. Loc. cit.

55. Loc. cit., para. 44.

© 2010 Sweet & Maxwell

Page34