Information Note on the Court’s case-law 18
May 2000
Condron v. the United Kingdom - 35718/97
Judgment 2.5.2000 [Section III]
Article 6
Criminal proceedings
Article 6-1
Fair hearing
Self-incrimination - drawing of adverse inferences by a jury: violation
Facts: The applicants, both heroin addicts, were charged with supplying heroin after various sachets of heroin were found in their flat. A police doctor considered that although they showed signs of withdrawal symptoms they were able to answer questions, despite the different view of their lawyer. The applicants, who were cautioned that it might harm their defence if they omitted to mention anything which they later relied on in court, said that they understood but replied "No comment" when asked to explain what they had been doing when the police observed them handing items to a neighbour. At trial, the police interviews were allowed in evidence. Both applicants claimed that the heroin had been for their personal use and that the items which they had handed to their neighbour had not been drugs. They maintained that they had not mentioned this at the interviews because their lawyer had considered that they were suffering from withdrawal symptoms. The judge directed the jury that it could draw inferences from the applicants' failure to mention this when interviewed. Both applicants were convicted. Their appeals were dismissed by the Court of Appeal, which considered that it would have been desirable if the trial judge's summing-up had been expressed in different terms but that this lacuna did not render the convictions unsafe, having regard to the other evidence.
Law: Article 6 § 1 - The right to remain silent is not absolute and whether drawing adverse inferences from silence infringes this provision must be determined in the light of all the circumstances (see John Murray judgment, Reports 1996-I). A conviction should not be based solely or mainly on an accused's silence, but silence may be taken into account in situations which clearly call for an explanation. The following features of this case, which are relevant to the assessment of fairness, distinguish it from the John Murray case: the applicants gave evidence at their trial, they offered an explanation for their silence during interview and the trial took place before a jury which required direction by the judge on the issue of drawing inferences. There was no legal compulsion to cooperate with the police, who were moreover under an obligation to give a clear warning of the possible implications of remaining silent, and the presence of the applicants' solicitor throughout the interviews was a particularly important safeguard. However, both the question whether the applicants were sufficiently lucid to understand the consequences of remaining silent and the question whether the trial judge gave sufficient weight to their reliance on the solicitor's advice to explain their silence must be examined from the standpoint of the directions given to the jury. The formula used by the judge did not reflect the balance to be struck: the principle established in the John Murray case is that, provided appropriate safeguards are in place, an accused’s silence, in situations which clearly call for an explanation, may be taken into account in assessing the persuasiveness of the evidence adduced by the prosecution against him. In this case, the applicants put forward an explanation for their silence during interview (namely, their lawyer's advice) but the judge left the jury free to draw adverse inferences even if satisfied that the explanation was plausible. The judge's directions were found by the Court of Appeal to be deficient in this respect. A direction to the effect that if the jury was satisfied that the applicants’ silence at the police interview could not sensibly be attributed to their having no answer or none that would stand up to cross-examination it should not draw an adverse inference was more than "desirable". Since it was impossible to ascertain what weight the jury gave to the applicants’ silence and certain safeguards identified in the John Murray case (reasons given by the judge, review by appeal court) were not present, it was all the more important to ensure that the jury received proper directions. The omission of the trial judge was incompatible with the applicants' exercise of their right to remain silent and the defect was not remedied on appeal, since the Court of Appeal had no way of knowing what role the silence played in the jury's decision. The Court of Appeal was concerned with the safety of the conviction, which is not the same as whether the applicants had a fair trial within the meaning of Article 6.
Conclusion: violation (unanimous).
Article 6 § 2: The applicants' arguments under this provision amount to a restatement of their case under Article 6 § 1.
Conclusion: no separate issue (unanimous).
Article 6 § 3 (b) and (c): The complaints under these provisions amount to a complaint that the applicants did not receive a fair trial.
Conclusion: not necessary to examine (unanimous).
Article 41 - The applicants did not submit any claim in respect of damages. The Court made an award in respect of costs.
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This summary by the Registry does not bind the Court.
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