CASE OF O'DONNELL v. THE UNITED KINGDOM

FOURTH SECTION

CASE OF O’DONNELL v. THE UNITED KINGDOM

(Application no. 16667/10)

JUDGMENT

STRASBOURG

7 April 2015

FINAL

07/07/2015

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of O’Donnell v. the United Kingdom,

The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:

Päivi Hirvelä, President,
George Nicolaou,
Ledi Bianku,
Nona Tsotsoria,
Paul Mahoney,
Krzysztof Wojtyczek,
Faris Vehabović, judges,
and Françoise Elens-Passos, Section Registrar,

Having deliberated in private on 10 March 2015,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 16667/10) against the United Kingdom of Great Britain and Northern Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Irish national, Mr Matthew O’Donnell (“the applicant”), on 15 March 2010.

2. The applicant, who had been granted legal aid, was represented by Mr P. McGrory from McGrory & Company, a lawyer practising in Belfast. The United Kingdom Government (“the Government”) were represented by their Agent, Ms Y. Ahmed.

3. The applicant alleged that the trial judge allowed the jury to draw an adverse inference from his failure to testify and that the judge failed to direct the jury to consider whether there was a case to answer, both of which violated his Article 6 § 1 rights.

4. On 25 August 2011 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant, Mr Matthew O’Donnell, is an Irish national who was born in 1980. He is currently detained at HMP Maghaberry.

6. The applicant has an I.Q. of 62, which is within the bottom 1% of the general population. He has an understanding of spoken English equivalent to that of a six year-old child.

7. On the morning of 13 October 2004, the body of Mr Williamson was found on the banks of the Blackwater River in County Tyrone.

8. The applicant had spent most of the previous day drinking in public with the deceased and a third man, Mr Samuel Houston. There was evidence from witnesses that both Mr Houston and the applicant had been threatening and aggressive towards a number of individuals including the deceased. One witness also stated that, when Mr Houston produced a knife and said he was going to kill the deceased, the applicant encouraged him to “just kill him”. There was also evidence that the applicant and Mr Houston asked the deceased to come out to fight with them after they had been refused admission to a public house.

9. The deceased was last seen alive at around 1:30 a.m. on 13 October 2004 when he, Mr Houston and the applicant were seen making their way to a park area beside the Blackwater River. A post-mortem examination of the deceased revealed that he had been extensively beaten before his death and that he had sustained a number of knife wounds including a severance of the carotid artery.

10. The police searched the flat where the applicant was staying and found two sets of clothes which were heavily stained with the blood of the deceased (two sets of sweatshirts, a pair of blue jeans and pair of beige and navy tracksuit bottoms). The fact that two sets of clothes were found was material to the prosecution’s case that Mr Williamson was killed by two men. One of the items of clothing, namely the beige and navy tracksuit bottoms, had the applicant’s name tag ironed on to the back of the garment. A plastic bag containing a knife was also found at the applicant’s premises. The plastic bag and the knife contained blood which matched the blood of the deceased. Medical evidence indicated that the knife was one that could have been used to inflict the wounds sustained by the deceased.

11. Mr Houston admitted the manslaughter of Mr Williamson and was sentenced to ten years’ imprisonment.

12. The applicant was arrested in the Republic of Ireland. He was interviewed by Irish police officers about the death of Mr Williamson. Those interviews were videotaped. He was subsequently extradited to Northern Ireland in April 2007.

13. At the applicant’s trial, the prosecution sought to rely on the interviews which had been conducted in the Republic of Ireland. The applicant challenged the admissibility of those interviews, inter alia on the ground that the proper procedures for interviewing a suspect with a mental handicap had not been followed. A voir dire (that is to say, a hearing to determine the admissibility of the contested evidence) was held, in the course of which evidence was led from clinical psychologists and psychiatrists who had examined the applicant and watched the interview tapes. At the conclusion of the voir dire, the trial judge decided to exclude the interviews from evidence.

14. At the close of the prosecution case, the trial judge rejected a defence submission that there was no case to answer.

15. The defence then applied to the trial judge for a ruling that the applicant’s mental condition made it undesirable for him to be called to give evidence. The effect of a favourable ruling would have been that the jury would not be permitted to draw an adverse inference from any failure of the applicant to give evidence in his own defence (see 28 below). In the course of the trial judge’s consideration of that application, a second voir dire was held, in which further evidence was given by one of the clinical psychologists, Dr Davies. The trial judge refused to allow Dr Davies to give evidence concerning the conclusions he had reached from watching the interview tapes. The trial judge reasoned that, once the interview tapes were excluded from evidence, they were excluded from evidence for all purposes. The trial judge did, however, hear evidence from Dr Davies as to his concern that the applicant’s low I.Q. would place him in considerable difficulty if he were to give evidence in his defence. In Dr Davies’ view, the applicant would be highly suggestible, he would have problems understanding questions and would find it difficult to give coherent responses.

16. In considering the defence application, the trial judge referred to the evidence of Dr Kennedy, consultant psychiatrist. The trial judge read out three passages of her report, the last which was the following:

“He [the applicant] reports having had difficulty in comprehending court proceedings in the past as long words are used and people talk at speed. However, if account is taken of his need to have material simply phrased and to allow for adequate consultation with others to ascertain his understanding and clarify where necessary, it is my opinion that he should be capable of following proceedings and actively contributing to them.”

17. Turning to Dr Davies’ evidence, the trial judge noted that Dr Davies had entered a significant reservation in relation to the applicant’s ability to give evidence. Dr Davies had expressed doubts as to whether even in circumstances such as those referred to by Dr Kennedy the applicant could give a coherent account.

18. The trial judge refused the defence application, finding that he could control the manner in which questions would be asked and could ensure that no unfairness would result. In the event that the applicant chose not to give evidence the judge informed the parties that he would give an adverse inference direction to the jury.

19. The applicant elected not to testify but Dr Davies was permitted to give evidence to the jury as to the applicant’s vulnerability and the difficulties he would have faced.

20. The prosecution invited the jury to draw an adverse inference from the applicant’s failure to give evidence. The trial judge’s summing up contained the following direction to the jury:

“I have said to you that the defendant has not given evidence and that is his right. He is entitled not to give evidence, to remain silent and to make the prosecution prove his guilt beyond reasonable doubt. Two matters arise from his not giving evidence. The first is that you try this case according to the evidence. You will appreciate that the defendant has not given evidence at this trial to undermine, contradict or explain the evidence put before you by the prosecution. The second matter, as you heard him being told when I addressed Mr McGrory [counsel for the applicant], is that the law is that you may draw such inferences as appear proper from his failure to give evidence. It is for you to decide whether it is proper to hold the defendant’s failure to give evidence against him when deciding whether he is guilty. On the basis of the evidence of Dr Davies, Mr McGrory invites you not to hold it against the defendant that he has not given evidence before you. Dr Davies’s contradicted evidence is that the defendant has an IQ of 62 and therefore is a person of very limited intellectual ability who should be regarded as mentally handicapped. He has the ability of a six year-old to understand spoken English. Dr Davies said that mentally handicapped people find giving evidence very challenging and his ability to provide a coherent and consistent account and to understand the implications of his replies is limited. Dr Davies said that he seems to have difficulty in functioning as an average person and has difficulty in maintaining relationships, keeping a job and performing everyday tasks such as looking after money.

Dr Davies’s evidence about the accused and the abilities of mentally handicapped people in general about which I have just reminded you is an important factor to bear in mind, but there are others that you should bear in mind and consider as well. There is no evidence that the defendant is not fit to stand his trial; in other words, it has not been suggested that he cannot understand questions, nor has it been suggested that he cannot instruct his legal advisers as to the nature of his case. It has not been suggested that he is unable to remember what happened that night, indeed, Dr Davies did not ask him to recall the events of that night, so you do not know from what Dr Davies has said to what extent the defendant can explain what he did or where he went, indeed, when he was charged with Mr Williamson’s death he replied, ‘I didn’t go near him’, not, ‘I don’t know anything about it’, or, ‘I didn’t have anything to do with it.’ You have to consider along with many other questions you have to consider whether the answer he gave is not merely a denial of guilt, which it plainly is, but whether it implies that he knows something about the circumstances of Mr Williamson’s death.

You should also consider whether the defendant, despite his undoubted handicaps, his low IQ and limited comprehension of English, could have answered questions in the witness box. I say that because Mr McGrory said in his closing remarks to you, ‘What chance would a man like that have in proceedings like this?’ I must tell you that the defence were well aware that had the defendant given evidence the court would have ensured he was treated fairly and given every chance to put his case and in particular that questions were simply phrased and put in such a way that they did not suggest the answer to him. It is not enough that a person would find it difficult to give evidence to excuse them from giving evidence. Many people have to give evidence and find it difficult - even children as young as six. Fortunately, we do not have that very often but it does happen sometimes. Every effort is made to simplify the proceedings and the form of questions to ensure that people like that can give evidence. If you think that because of the evidence of Dr Davies you should not hold it against the defendant that he has not given evidence do not hold it against him, but if you are satisfied beyond reasonable doubt that the evidence he relies on, that is, the evidence of Dr Davies, presents no adequate explanation for his absence from the witness box then you may hold his failure to give evidence against him.

If you consider that there is no excuse for his not giving evidence what proper inferences - in other words, what conclusions - can you draw from the defendant’s decision not to give evidence before you? You may think that the defendant would have gone into the witness box to give you an explanation or answer to the case against him. If the only sensible explanation for his decision not to give evidence is that he has no answer to the case against him, or none that could have stood up to cross-examination, then it would be open to you to hold against him his failure to give evidence. It is for you to decide whether it is fair to hold that failure against him. In considering that it might be useful for you to consider what sort of questions might the defendant have had to face if he had given evidence.”

21. The trial judge went on to give examples of questions that might have been asked of the defendant had he given evidence before emphasising that the jury should not find him guilty only or mainly because he had not given evidence, but that they might take it into account as some additional support for the prosecution’s case and in deciding whether or not the case made on his behalf was or might be true.

22. The applicant was convicted by the jury and sentenced to life imprisonment with a minimum term of twelve years. He appealed against his conviction on three grounds: (i) that the trial judge had erred in not allowing Dr Davies to give evidence concerning the conclusions he had reached from watching the interview tapes; (ii) that the trial judge had erred in rejecting the applicant’s submission that it was undesirable for him to be called to give evidence; and (iii) that the trial judge had failed to direct the jury that they should not draw adverse inferences unless they were satisfied that there was case to answer.

23. On 28 January 2009 an application for leave to appeal was refused by a single judge of the Court of Appeal in Northern Ireland. A renewed application was dismissed by the full court on 15 January 2010.

24. In respect of the first ground of appeal, namely the exclusion of the video evidence, the Court of Appeal accepted that the videotapes were admissible to demonstrate how the applicant expressed himself and to demonstrate that he was suggestible. However, the portion of the videotape on which the applicant had intended to rely did not in fact touch on suggestibility and, in any event, the applicant’s suggestibility was not in dispute between the experts who had testified for the prosecution and defence. Therefore, the omission of the evidence would not have had any material effect on the trial judge’s decision.

25. In respect of the second ground of appeal, namely the ruling under Article 4(1)(b) of the Criminal Evidence (Northern Ireland) Order 1988, the Court of Appeal considered that the trial judge had reached his conclusion in a proper and balanced manner and his conclusion was not unreasonable. The Court of Appeal noted that there was competing expert evidence in the case. On the one hand, there was the evidence of Dr Kennedy, a consultant psychiatrist, whose opinion was that the applicant “should be capable of following proceedings and actively contributing to them” if account were taken of his need to have material simply phrased and if he was allowed adequate consultation with others to ascertain his understanding and clarify matters where necessary. On the other, Dr Davies, a clinical psychologist, entered a significant reservation in relation to the applicant’s ability to give evidence. He did not know whether even where the procedures were simplified and the questions simply phrased, the applicant could give a coherent account of events. The Court of Appeal found that there was nothing unreasonable about the manner in which the trial judge preferred the evidence of the consultant psychiatrist over that of the clinical psychologist.

26. For the third ground, which related to the trial judge’s direction on a case to answer, the Court of Appeal recognised that, in England and Wales, trial judges were required to direct juries that they, the jury, had to find that there was a case to answer on the prosecution evidence before drawing an adverse inference (see paragraph 28 below). By contrast, in Northern Ireland, it was left to the judge in each case to decide whether to direct the jury in this manner, depending on the strength of the prosecution case. The Court of Appeal considered that, in the applicant’s case, the absence of such a direction to the jury reflected the trial judge’s view that this was not a case where the evidence was so weak as to require such a direction. The substantial body of evidence against the applicant supported that view. The trial was not, therefore, unfair. The Court of Appeal nonetheless recommended that the specimen direction in Northern Ireland should be amended to follow the approach taken in England and Wales, by adding a direction that the jury should not draw an adverse inference unless they consider that the prosecution case is such that it clearly calls for an answer.

27. The applicant asked the court to certify questions of general public importance for the consideration of the Supreme Court. It refused to do so in a decision handed down on 29 January 2010.

II. RELEVANT DOMESTIC LAW AND PRACTICE

28. Article 4 of the Criminal Evidence (Northern Ireland) Order 1988 where relevant provides:

“Accused to be called upon to give evidence at trial

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

...

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

...

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

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

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

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

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

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

(3) If the accused—

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

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

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

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

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

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

29. At the time of the applicant’s trial, the relevant specimen direction of the Judicial Studies Board for Northern Ireland left it to the judge in each case to decide whether to direct the jury that they should consider whether the prosecution case was so strong that it called for an answer. Further assistance was set out at Note 4 of the specimen direction, which stated:

“Where the judge has refused an application for a direction, or no application has been made, it is considered that it is normally inappropriate to state that the jury has to be directed to consider whether the defendant has a case to answer, despite the remarks of Lord Taylor CJ in R v Cowan & others [1996] 1 Cr. App. R.1 [see below]. However, there may be circumstances (e.g. where the defence case is that the evidence against the defendant is so weak that it does not require an answer) where a direction along these lines may be appropriate.”

30. The drawing of adverse inferences in England and Wales is governed by section 35 of the Criminal Justice and Public Order Act 1994, which is in similar terms to Article 4 of the Northern Ireland Order. As stated in Adetoro v. the United Kingdom, no. 46834/06, § 29, 20 April 2010, in R v Cowan Lord Taylor CJ set out five “essentials” when making a direction on adverse inferences:

“We consider that the specimen direction is in general terms a sound guide. It may be necessary to adapt it to the particular circumstances of an individual case. But there are certain essentials which we would highlight:

1. The judge will have told the jury that the burden of proof remains upon the prosecution throughout and what the standard required is.

2. It is necessary for the judge to make clear to the jury that the defendant is entitled to remain silent. That is his right and his choice.

3. An inference from failure to give evidence cannot on its own prove guilt. That is expressly stated in section 38(3) of the Act.

4. Therefore, the jury must be satisfied that the prosecution have established a case to answer before drawing any inferences from silence. Of course, the judge must have thought so or the question whether the defendant was to give evidence would not have arisen. But the jury may not believe the witnesses whose evidence the judge considered sufficient to raise a prima facie case. It must therefore be made clear to them that they must find there to be a case to answer on the prosecution evidence before drawing an adverse inference from the defendant’s silence.

5. If despite any evidence relied upon to explain his silence or in the absence of any such evidence, the jury conclude the silence can only sensibly be attributed to the defendant’s having no answer or none that would stand up to cross-examination, they may draw an adverse inference.”

31. In R. v Chenia [2002] EWCA Crim 2345 and R v Whitehead [2006] EWCA Crim 1486 the Court of Appeal found that, while it was desirable for a trial judge to include a direction including the fourth “essential” in Cowan, any failure to do so would not render a conviction unsafe or unfair if no jury could possibly have concluded that there was no case to answer on the facts.

32. In R v Matthew O’Donnell [2010] NICA 1 the Court of Appeal directed judges in Northern Ireland to apply R v Cowan and others [1996] 1 Cr. App. R. 1.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

33. The applicant complained under Article 6 of the Convention that his trial was unfair. Firstly, he alleged that the trial judge’s ruling under Article 4 of the Criminal Evidence (Northern Ireland) Order 1988 (as to the desirability of his giving evidence) was improper and unfair. This was particularly so as the trial judge had erred in refusing to consider Dr. Davies’ evidence regarding his observations of the excluded videotaped interviews. Secondly, he alleged that the trial judge’s direction to the jury in respect of adverse inferences was flawed. The trial judge should have been required to direct the jury that they should not draw any adverse inferences unless they considered that there was a case to answer. Article 6 § 1 provides as relevant:

“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

34. The Government disputed this argument.

A. Admissibility

35. The Court is satisfied that this complaint raises arguable issues under the Convention, so that it cannot be rejected as manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further considers that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties’ submissions

(a) The applicant

36. The applicant submitted that the trial judge erred in allowing the jury to draw an adverse inference under Article 4 of the Criminal Evidence (Northern Ireland) Order 1988. According to the applicant, no adverse inferences should have been permitted from his failure to give evidence. He observed that expert evidence had demonstrated that his intellectual disabilities would make him particularly vulnerable to cross-examination, in that he would be unable to understand the significance of the questions or to provide a coherent account of what had happened.

37. The applicant did not contend that the permitting of the drawing of an adverse inference is in all circumstances incompatible with Article 6 § 1 of the Convention. What is clearly incompatible is to permit an inference to be drawn in circumstances where the alternative, in this case the giving of evidence, would itself have been unfair to him. In the applicant’s submission, there were not adequate safeguards in place, for example, the possibility for the applicant to communicate with his lawyer while being questioned.

38. The applicant further maintained that his rights under Article 6 § 1 were violated because of the trial judge’s failure explicitly to warn the jury that the prosecution must present a case to answer before any adverse inferences could be drawn from his silence.

39. The applicant highlighted that the evidence linking him to the scene of the murder was wholly circumstantial. It was incumbent upon the judge to direct the jury that they must find a case to answer against the applicant on a charge of murder and only then were they able to use his silence to draw an adverse inference so as to convict of that particular charge. In failing to make this direction, the trial judge left open the possibility that the jury found that there was a case to answer on the lower charge of manslaughter, but drew an adverse inference from the applicant’s silence in order to convict him of murder. The applicant contended that the jury should have been directed that they need first to find, not only a case to answer that he was present at the scene and played an active role in the assault, but also that he had a settled intention to kill or cause grievous harm in circumstances where the prosecution had accepted a plea of manslaughter from Mr Houston.

40. The applicant concluded that it was neither clear nor undisputed that there was a case to answer on a charge of murder and therefore it was incumbent upon the judge to direct the jury explicitly to find a case to answer on this charge.

(b) The Government

41. The Government contended that the trial judge’s decision to allow the jury to draw adverse inferences from the applicant’s failure to testify, despite his low I.Q. did not violate his rights under Article 6 § 1, having regard to all the circumstances of the case.

42. Firstly, the Government observed that the circumstantial evidence against the applicant was very strong. The applicant had been heard encouraging his co-accused, Mr Houston, to “just kill” the deceased and they had later asked the deceased to come out and fight with them. The police searched the applicant’s house and found clothes which were heavily stained with the blood of the deceased and that two sets of stained clothes were found, and that one of the items of clothing bore the applicant’s name. This was not a case where the applicant’s conviction was based solely or mainly on his refusal to testify. On the contrary, this was a situation which clearly called for an explanation from the applicant. As to the applicant’s ability to testify, he had already shown himself able to give an explanation to the consultant psychiatrist, Dr Kennedy. It was apparent from Dr Kennedy’s report that the applicant’s low I.Q. did not necessarily prevent him from giving a sufficiently clear account of his actions.

43. According to the Government, the safeguards offered by the trial judge in his summing up to the jury were sufficient. The trial judge undertook to “ensure that any questions that [the applicant] is asked are expressed in as simple a fashion as possible, that they are phrased in such a way as not to guide or suggest the answer to him, and in all respects to ensure that he can give such account of the events of that night as he wishes to do”. Such safeguards could have been effectively implemented in the event that the applicant had chosen to give evidence, as they are in respect of small children giving evidence, for example. In addition, the trial judge allowed Dr Davies to give evidence to the jury as to the applicant’s low I.Q. and the effects that this might have on his ability to give evidence on his own behalf. In summing up, the trial judge addressed at some length the question of the applicant’s failure to testify and gave appropriate weight to all the relevant factors.

44. The trial judge made reference to the expert evidence of both Dr Davies and Dr Kennedy concerning the applicant’s ability to give evidence, as well as noting the differences between them. According to the Government, there was nothing unreasonable in the manner in which the trial judge preferred the evidence of Dr Kennedy over that of Dr Davies.

45. The Government further submitted that the trial judge’s failure to give a clear “case to answer” direction did not violate Article 6 of the Convention. According to the Government, the trial judge’s earlier comments in his summing up made it clear that there was a sufficient case to answer.

46. The Government noted that the courts of Northern Ireland were not bound by the English Court of Appeal ruling in R v. Cowan, which set out the “case to answer” instruction. The trial judge followed the Northern Ireland direction “meticulously” in light of the strength of the case against the applicant.

47. Additionally, the Government asserted that there was considerable circumstantial evidence presented in the prosecution’s case, upon which the judge commented in his instructions. Furthermore, the Government noted that judge did state that the jury could not find the defendant guilty “only or mainly” because he did not give evidence, but may only use his silence as “additional support” for the prosecution’s case. In conclusion, the Government submitted that that it was clear on the basis of the facts presented to the jury that there was a case to answer in respect of the charge of murder and no jury could reasonably have concluded otherwise. It was unnecessary for the trial judge to direct the jury explicitly on that point.

2. The Court’s assessment

(a) General principles

48. The right to remain silent is a generally recognised international standard which, together with the right against self‑incrimination, lies at the heart of a fair procedure (see Bykov v. Russia [GC], no. 4378/02, § 92, ECHR 2009‑...). However, the right to silence is not an absolute right (see John Murray v. the United Kingdom, 8 February 1996, § 47, Reports of Judgments and Decisions 1996‑I and Condron v. the United Kingdom, no. 35718/97, § 56, ECHR 2000‑V). The fact that a trial judge leaves a jury with the option of drawing an adverse inference from an accused’s failure to give evidence, either during police interview or, as in the instant case, during his trial, cannot in itself be considered incompatible with the requirements of a fair trial (Beckles v. the United Kingdom, no. 44652/98, § 57, 8 October 2002 and Tabbakh v. the United Kingdom (dec.), no. 40945/09, §29, 21 February 2012).

49. It would be incompatible with the right to silence to base a conviction solely or mainly on the accused’s silence or on a refusal to answer questions or give evidence himself. Nevertheless, the Court has previously concluded that the right cannot and should not prevent a jury from taking the accused’s silence into account in situations which clearly call for an explanation from him (John Murray v. the United Kingdom, cited above, § 47, and Condron v. the United Kingdom, cited above, § 56).

50. However, as the Court has previously emphasised, the right to silence lies at the heart of the notion of a fair procedure under Article 6 of the Convention. Therefore, particular caution is required before a domestic court can invoke an accused’s silence against him (Averill v. the United Kingdom, no. 36408/97, § 45, ECHR 2000‑VI).

51. Whether the drawing of adverse inferences from an accused’s silence infringes upon his rights under Article 6 of the Convention is a matter to be determined in light of the circumstances of the case, having regard to the situation where inferences may be drawn, the weight attached to them by the national courts in their assessment of the evidence and the degree of compulsion inherent in the situation (see John Murray, cited above, § 47). In practice, adequate safeguards must be in place to ensure that any adverse inferences do not go beyond what is permitted under Article 6 (ibid). The trial judge’s direction to the jury on adverse inferences is of particular relevance to this inquiry (see Beckles, cited above, § 59).

(b) Application of the general principles to the present case

i. The trial judge’s decision to allow the jury to draw adverse inferences from the applicant’s failure to testify

52. The Court is called upon to consider whether the drawing of inferences against the applicant under section 4 of the Criminal Evidence (Northern Ireland) Order 1988 rendered his trial unfair within the meaning of Article 6 § 1 of the Convention.

53. Turning to trial judge’s refusal to allow Dr Davies to give evidence concerning the conclusions he had reached from watching the excluded interview tapes, the trial judge reasoned that, once the interview tapes were excluded from evidence, they were excluded from evidence for all purposes (see paragraph 15 above). The Court of Appeal accepted that the videotapes were in fact admissible to demonstrate how the applicant expressed himself and to demonstrate that he was suggestible. However, it concluded that, since the portion of the videotape on which the applicant wished to rely did not touch on suggestibility, the omission of the evidence would not have had any material effect on the trial judge’s decision (see paragraph 24 above). This part of the applicant’s argument is therefore weak. In any event, as this Court has frequently reiterated, while Article 6 guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence as such, which is primarily a matter for regulation under national law. The question which must be answered is whether the proceedings as a whole, including the way in which the evidence was obtained, were fair (see Jalloh v. Germany [GC], no. 54810/00, §§ 94-95, ECHR 2006‑IX).

54. Turning next to the strength of the case against the applicant, the Court cannot but agree with the Government that the circumstantial evidence against the applicant was strong. On the night in question, the applicant had been heard encouraging his co-accused to “just kill” the deceased and that they had later asked the deceased to come out and fight with them (paragraph 8 above). The deceased was last seen alive with the applicant and his co-accused making their way to a park area beside the Blackwater River where the body was found on a pathway along the banks of the river the following morning. He had been beaten and had suffered a number of knife wounds (see paragraph 9 above). A police search of the applicant’s home found a knife with blood on it inside a plastic bag and clothes that were heavily stained with blood. One of the items of the bloody clothing had the applicant’s name tag on it (see paragraph 10 above). The Court considers that this was a situation which clearly called for an explanation from the applicant and that logically his conviction could not have been based solely or mainly on his refusal to testify.

55. As noted by the Court of Appeal, in reaching his decision on whether the applicant’s mental condition made it undesirable for him to be called to give evidence, the trial judge took into consideration competing medical evidence which he referred to in his ruling on this point (see paragraphs 16 and 17 above). The trial judge preferred the evidence of Dr Kennedy, whose opinion was that the applicant could give evidence with certain safeguards in place which the trial judge considered that he himself could ensure (see paragraphs 16-18 above). Moreover, the Court observes that the trial judge allowed Dr Davies to give evidence to the jury as to the applicant’s intellectual capacity and the effects that this might have on his ability to give evidence on his own behalf (see Tabbakh v. the United Kingdom (dec.), no. 40945/09, §29, 21 February 2012 where the applicant also had the opportunity to call an expert witness to give evidence as to the nature of his mental illness and the potential impact it would have were he to give evidence). The Court sees no reason to depart from the conclusions of the Court of Appeal, which found that there was nothing unreasonable about the manner in which the trial judge preferred the evidence of one expert over that of another (contrast with the finding arrived at in relation to expert medical evidence in Mantovanelli v. France, 18 March 1997, Reports 1997-II, §369).

56. In the present case, the Court also observes that the trial judge used clear terms in directing the jury (as in the case of Tabbakh, cited above, § 27). The trial judge set out the expert evidence presented at trial regarding the applicant’s intellectual disability, his limited capacity to understand English, as well as his limited capacity to provide a coherent account of his actions. The judge also explained that, regardless of whether or not the accused chose to testify, the prosecution retained the burden of proof beyond a reasonable doubt. Furthermore, the judge instructed the jury that they could only draw adverse inferences from the applicant’s silence if they were satisfied beyond a reasonable doubt that the evidence relied upon by the applicant to justify his silence presented no adequate explanation for his absence from the witness box (see paragraph 20 above).

57. Therefore, unlike in the case of Beckles (cited above §64), the Court considers that the trial judge gave appropriate weight in his direction to the explanation from the expert as to the applicant’s decision not to testify (see Tabbakh, cited above, § 28). It was thereafter the function of the jury to decide whether or not to draw an adverse inference from the applicant’s silence.

58. Taking all the circumstances of the case into account, including the weight of the circumstantial evidence against the applicant calling for an explanation, the competing medical evidence and trial judge’s clear and detailed direction to the jury, the Court finds that there has been no violation of Article 6 §1 regarding the adverse inference instruction in this case.

ii. The direction on a case to answer

59. In the present case the trial judge did not invite the jury to consider firstly whether the prosecution case was so strong that it called for an answer before directing them that they could draw an adverse inference from the applicant’s failure to testify. This clearly reflected the judge’s view that the evidence against the applicant was sufficiently strong that such an approach was not required. The Court of Appeal considered that the absence of this direction did not render the trial unfair or the conviction unsafe (see paragraph 26 above).

60. In England and Wales, trial judges in their summing up were required to direct juries that they had to find that there was a case to answer on the prosecution evidence before drawing an adverse inference (see paragraph 30 above). The practice in Northern Ireland changed only after the Court of Appeal’s judgment in the present case (see paragraph 32 above). However, at the relevant time in Northern Ireland, the judge could give the “case-to-answer” instruction at his or her discretion based on the weight of the prosecution’s evidence (see paragraph 29 above). In the present case, and in light of the strength of the incriminating evidence against the applicant, the trial judge in the exercise of his discretion did not consider such a direction to the jury to be necessary. In the Court’s view this did not render his summing up deficient in any way for the purposes of Article 6 § 1.

61. Taking into consideration the strong circumstantial evidence against the applicant (see paragraph 54 above) and the trial judge’s careful direction to the jury (see paragraph 20 above), the Court finds there has been no violation of Article 6 § 1 of the Convention in respect of the trial judge’s failure to give a direction on a case to answer.

62. Accordingly, the Court finds that there was no unfairness in the applicant’s trial as a whole and finds no violation of Article 6 § 1 in respect of the applicant’s two complaints.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the application admissible;

2. Holds that there has been no violation of Article 6 § 1 of the Convention.

Done in English, and notified in writing on 7 April 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

              Françoise Elens-PassosPäivi Hirvelä
RegistrarPresident

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Wojtyczek is annexed to this judgment.

P.H.
F.E.P.

CONCURRING OPINION OF JUDGE WOJTYCZEK

1. I have voted with the majority not without strong hesitations and I am not persuaded by the approach adopted in the reasoning of the judgment.

2. I note that criminal procedure varies considerably in Europe from one State to another. It is especially difficult to compare the continental criminal procedure with common law systems. In this context, defining Europe-wide standards of fair criminal trial is a very difficult challenge and the judicial application of the existing Convention standards has to duly take into account the diversity of national legal systems. This diversity is an important argument for the self-restraint of the international judge. In particular, it is difficult to apply to common law countries the fundamental standards of a fair criminal trial established in continental legal systems. Furthermore, the specific rights of the accused cannot be considered in isolation from one another but have always to be looked at as elements of a broader system of fair trial guarantees.

3. The right of the accused to silence is an essential element of a fair criminal trial. It means the accused may freely choose not to give any explanations and if he chooses to remain silent, his choice cannot entail adverse legal consequences for him. The right to silence means, in particular, that adverse inferences should not be drawn from the silence of the accused.

The International Covenant on Civil and Political Rights guarantees to everyone, “in the determination of any criminal charge against him”, inter alia, the right “not to be compelled to testify against himself or to confess guilt” (Article 14 § 3 (g)).

The right of the accused to remain silent has been mentioned in a more explicit and precise way in other international documents, including the statutes of international criminal tribunals. The wording of the Rome Statute of the International Criminal Court seems particularly clear in this respect as it unequivocally guarantees to the accused the right “[n]ot to be compelled to testify or to confess guilt and to remain silent, without such silence being a consideration in the determination of guilt or innocence” (Article 67 § 1 (g)).

It is important to note that the right in question is intrinsically linked with the presumption of innocence and the repartition of the burden of proof between the parties to the proceedings. A restriction on the right to silence affects the way in which the presumption of innocence operates in practice and entails a de facto reallocation of the burden of proof, even if such reallocation is not explicitly recognised in the legal system.

I am aware of the scholarly discussions about the relevance and scope of the right to silence, but I am more persuaded by the views of those who stress its paramount importance for the accused. I agree nonetheless that the right in question is not absolute and may exceptionally be restricted. Some types of restrictions already exist in the legal systems of the High Contracting Parties. They may be applicable, for instance, in procedures for confiscation of the proceeds of crime. At the same time, in my view, the right to silence should always be seen as the general rule, whereas any restriction to it should be viewed as an exception which requires particularly strong justification. Restrictions are permissible if at least two main conditions are fulfilled. Firstly, the different guarantees available to the accused under the domestic criminal procedure should be sufficient and ensure the equality of arms of the different parties. In other words, any limitation should be counterbalanced by other rights of the accused. Secondly, any restrictions imposed on the right to remain silent have to be compatible with the principle of proportionality. Only a value of particular weight may justify sacrificing the values underlying the right to silence.

4. Northern Ireland legislation which enables the jury to draw adverse inferences from the silence of the accused imposes a limitation on the right to remain silent. Although there is no direct coercion on the accused, he faces the prospect that his silence will be interpreted against him and this situation may be characterised as indirect pressure.

I take note here that the United Nations Human Rights Committee, in its comments on the fourth periodic report of the United Kingdom submitted under article 40 of the International Covenant on Civil and Political Rights, stated the following:

“The committee notes with concern that the provisions of the Criminal Justice and Public Order Act 1994 which extended the legislation originally applicable in Northern Ireland whereby inferences may be drawn from the silence of the persons of accused of crimes violates various provisions in article 14 of the Covenant, despite the range of safeguards built into the legislation and the rules enacted thereunder” (CCPR/C/79/Add 55, July 27, 1995, par. 17).

5. In my opinion, it is very difficult to justify the necessity of the limitation imposed on the accused’s right to silence in the instant case. Given that the applicant had difficulties in understanding the proceedings and the situation and in expressing himself, the value of his personal testimony would, in any event, have been extremely limited. The other evidence gathered was sufficient for the conviction. Furthermore, I note that the limitation in question was coupled with another important restriction on the guarantees of a fair criminal trial, as the verdict of the jury in Northern Ireland is not reasoned. In this context, it is very difficult to reconstruct the way the facts were established in the present case at first instance and in particular to assess the weight attributed to the silence of the accused. It was not explained by the jury, either to the applicant or to his lawyers, to what extent his decision to remain silent had impacted the outcome of the case before the domestic court.

On the other hand, I agree that, given the very specific circumstances of the instant case and in particular the strong evidence against the accused, the limitation imposed on the right of the accused does not seem to have had an impact on the final outcome of the case. I may also accept that in the instant case the limitation imposed was counterbalanced by a set of fair trial guarantees existing in the legal system in Northern Ireland. This is a very important element for the assessment of the case.

6. In criminal procedure, striking the proper balance between the different colliding values, and especially reconciling the rights of the accused with the effectiveness of the criminal procedure, is not an easy task. The approach adopted by the Court in respect of the right to silence entails certain difficulties and paradoxes. According to the established case-law of the Court, adverse inferences may be drawn from the silence of the accused if the situation clearly calls for an explanation from him. On the other hand, under this case-law the accused’s silence cannot be the sole or decisive basis for a conviction.

According to the reasoning in the instant case, there was a situation which clearly called for an explanation from the applicant, given the strong evidence produced against him (see paragraph 54 in fine). At the same time, the applicant’s conviction could not have been based solely or mainly on a refusal to testify (ibid.). This statement unequivocally suggests that the decision to remain silent should not have been the factor which tipped the balance against the applicant.

I am not able to understand this approach. The explanations of the accused are simultaneously seen as necessary, as the situation calls for an explanation, and unnecessary, as there is other strong evidence on which to base his conviction. If in a specific case there is sufficient evidence to decide a case without drawing any inferences from the accused’s silence, then there is no need to resort to any adverse inferences from his silence in deciding the case. From the viewpoint of the protection of various public interests, limitations on the right to silence might only have an added value if there are difficulties with establishing the facts, especially if the evidence produced is insufficient for the guilt of the accused to be ascertained whereas there is a serious risk that an offence may go unpunished. In other words, inferences from the silence of the accused may appear necessary only if, in some types of cases, they may tip the balance in the process of establishing the facts. I agree, however, that drawing inferences from the silence of the accused in order to tip the balance against him is very problematic from the viewpoint of fair trial standards.

In the instant case, the situation called for an explanation from the applicant from the perspective of an efficient defence and of the objective necessity to rebut the evidence produced by the prosecution. However, the accused and his lawyers were free to choose the appropriate defence strategy. The situation clearly did not call for an explanation from the perspective of the court’s obligation to establish the facts and decide the case. The case could have been decided without recourse to any inferences from the silence of the accused.

In my view, the instant case shows clearly that the criteria established by the Court for the assessment as to whether Convention standards in respect of the right to silence were observed should be revisited.

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