HAMILL v. THE UNITED KINGDOM



                      AS TO THE ADMISSIBILITY OF

                      Application No. 21656/93

                      by James Martin HAMILL

                      against the United Kingdom

     The European Commission of Human Rights sitting in private on

21 October 1996, the following members being present:

           Mr.   S. TRECHSEL, President

           Mrs.  G.H. THUNE

           Mrs.  J. LIDDY

           MM.   E. BUSUTTIL

                 G. JÖRUNDSSON

                 A.S. GÖZÜBÜYÜK

                 A. WEITZEL

                 J.-C. SOYER

                 H. DANELIUS

                 F. MARTINEZ

                 L. LOUCAIDES

                 M.P. PELLONPÄÄ

                 M.A. NOWICKI

                 I. CABRAL BARRETO

                 B. CONFORTI

                 N. BRATZA

                 I. BÉKÉS

                 J. MUCHA

                 D. SVÁBY

                 G. RESS

                 A. PERENIC

                 C. BÎRSAN

                 P. LORENZEN

                 K. HERNDL

                 E. BIELIUNAS

                 E.A. ALKEMA

                 M. VILA AMIGÓ

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

     Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

     Having regard to the application introduced on 15 April 1993 by

James Martin HAMILL against the United Kingdom, and registered on

20 April 1993 under file No. 21656/93;

     Having regard to :

-    the reports provided for in Rule 47 of the Rules of Procedure of

     the Commission;

-    the observations submitted by the respondent Government on

     24 February 1994 and the observations in reply submitted by the

     applicant on 27 June 1994;

-    the further observations submitted by the  Respondent Government

     on 8 May 1996.

     Having deliberated;

     Decides as follows:THE FACTS

     The applicant is a United Kingdom citizen born in 1950 and

presently detained in HM Prison Maghaberry, Northern Ireland.  He is

represented by Messrs. McCann & McCann, a firm of solicitors practising

in Belfast.

a.   The particular circumstances of the case

     The facts as submitted by the parties, and which may be deduced

from documents lodged with the application, may be summarised as

follows.

     On 6 March 1991, the applicant was found guilty of possession of

a firearm in suspicious circumstances and of receiving stolen goods

(the firearm in question).  He was also acquitted of a further charge

of possession of a firearm with intent to endanger life or cause

serious injury.  The court consisted of a single judge sitting without

a jury.

     The firearm in question, a sawn-off shotgun, had been recovered

by police from the garden of a private house in Belfast occupied by

Mrs. F.  The prosecution alleged it had been abandoned there by the

applicant in order to avoid its detection by police officers

controlling a road block on a road along which the applicant was

travelling.  The prosecution case consisted of circumstantial evidence

purporting to fix the approximate time at which the firearm was

abandoned in the garden and placing the applicant in the vicinity at

such time.  In addition to this the prosecution invited the trial judge

to draw particular inferences from the applicant having turned off the

road where the road block was located and from his statements to the

police both before and after his arrest, which the prosecution claimed

contained implausible explanations for his conduct.  The evidence as

to when the firearm had been left in the back garden of the house

(No. 10) came from Mrs. F., who lived at No. 10.  Mrs. F. refused to

give oral evidence to the court, claiming to be afraid to do so.

Despite the objections of counsel for the defence, the judge exercised

his discretion under Article 3 of the Criminal Justice (Evidence etc)

(Northern Ireland) Order 1988 ("the Criminal Justice Order") to admit,

as evidence of the facts contained therein, her out of court statement

made to the police.  Mrs. F. could not therefore be cross-examined by

counsel for the defence.

     At the conclusion of the prosecution case, the trial judge

rejected a submission by counsel for the defence that there was no case

to answer and, acting in accordance with Article 4 of the Criminal

Evidence (Northern Ireland) Order 1988 ("the 1988 Criminal Evidence

Order"), called upon the applicant to give evidence in his own defence.

     Although a number of witnesses were called on behalf of the

applicant, on the advice of his counsel, the applicant himself declined

to give any evidence.  In finding the applicant guilty of the two

offences referred to above the trial judge stated, inter alia:

     "In this case the applicant gave an explanation of his behaviour

     and he said that he had given it ad nauseam.  If an accused man

     has given an explanation to the police that is credible or

     reasonably credible and that is partly accepted by the police

     inferences should not be drawn against him where he refused to

     give evidence in court.  I could not accept this proposition.

     It seemed to me and I think it is borne out by Lord Justice

     Kelly's two judgments that there is no restriction to be placed

     on the inferences which may be drawn by a Judge save that they

     are proper inferences.  A Judge must have regard to all evidence

     including anything said by an accused while he was being

     questioned.  There is a great difference between answering

     questions in a police station and giving sworn evidence and being

     subjected to cross-examination on the other."

     "The Crown case relies on what Mrs. F says, and she had not been

     cross-examined.  He [the applicant] referred to what he called

     her lie, which casts a doubt on her reliability as a witness.

     One does not know the nature of the noise that she says she

     heard. Perhaps the noise came from the yards of 8 or 12 or [of]

     the alleys.  There was nothing to show that the gun had been in

     the yard for some time before [the applicant] rang the bell.  The

     gun position was more consistent with it having been placed than

     thrown.  There were no marks on the newspaper covering. The

     forensic evidence shows no connection between [the applicant] and

     the gun or its covering.  The fibres on the gun indicated contact

     with someone or something different to both [the applicant] and

     his car.  [The applicant] was not wearing gloves and an

     examination of the wet newspaper if it had been done would have

     shown finger prints other than his.  [The applicant's] hands were

     bagged and he should have been swabbed.  This was not done.  If

     it was it would have shown in his case an absence of newsprint.

     He also referred to the evidence of Dr. S in regard to the gun

     and newspaper covering and Mr. W in regard to his opinion as to

     access to the yard.

     I did not give my reasons for refusing Mr. Cinnamond's

     application for a direction at the close of the Crown case but

     I think they will appear now.  I am satisfied, having heard the

     police witnesses give evidence, that in turning

     down Eastern Crescent was trying to avoid the police check.  This

     was subject to any evidence which might have been put before the

     court by the Defence.  The case against him in this respect has

     been confirmed by his not giving evidence, the course which if

     he had done would have given him an opportunity to explain why

     he drove as he did.  The evidence of the police therefore remains

     unchallenged.  The position of the car outside 14 and the car

     door open and engine running suggests a man in a hurry.  Yet, as

     says, he was not in a hurry and he has not sought

     to elucidate this by giving evidence.

     lie to the police that he did not see the

     police road check makes it difficult to accept what is his most

     improbable explanation for leaving his car door open, namely,

     that he always did that.  Now that he has refused to give

     evidence I do not accept it at all.  I believe he left his car

     seeking to dispose of the shotgun which he did by throwing it

     over the wall at the end of the alleyway leading to

     yard............

           .......I have dealt with the case on the basis that there

           was no forensic evidence connecting the accused and his car

           with the wrapping or the gun.

           Dr. S. also said that he would expect some dents or bruises

     on the gun if it was thrown or some abrasive tearing of the

     newspaper covering.  I think common sense suggests this is true

     but it is not necessarily so and the evidence is again very

     speculative.

           I have given what weight I can to it but I have come to the

     conclusion that the gun was thrown over the yard wall by the

     accused and I am satisfied beyond reasonable doubt that he is

     guilty of being in possession of the shot gun."

     The applicant was sentenced to nine years imprisonment.  The

applicant appealed against his conviction.  Although initially a ground

of appeal, the applicant did not maintain his challenge to the trial

judge's decision relating to the admission of the out of court

statement of Mrs. F..  Instead the appeal concentrated on the trial

judge's weighing of the evidence and his drawing of inferences  adverse

to the applicant from the applicant's failure to give evidence himself.

The appeal was dismissed on 30 July 1992.  Higgins J., giving the

judgment of the court, stated, inter alia:

     "In this case the Crown established a prima facie case against

     the appellant and from the evidence the trial judge was entitled

     to infer that the appellant had the shotgun with him in the

     Sierra and that he threw it into the yard of 10 Easton Crescent

     to avoid its detection by the police.  The appellant had given

     explanations to the police about the reason for driving into

     Easton Crescent and for the manner in which he parked the Sierra.

     But he refused to go into the witness box, when called on by the

     trial judge, to face cross-examination about his conduct on that

     occasion and on his explanations.  Mr. Cinnamond submitted that

     the appellant had done enough by way of explanation and should

     not be penalised for not giving evidence.  But the giving of an

     explanation to the police, which may be quite specious and which

     will not have been subjected to testing by cross-examination,

     clearly does not absolve an accused person from the consequences

     of Article 4 after he has been expressly called upon by the court

     to give evidence in his own defence and has been warned of the

     consequences if he does not do so.  In any event the explanations

     given by the appellant were self serving, unconvincing and

     unsatisfactory.  It is only common sense to infer in these

     circumstances from the appellant's failure to give evidence in

     his own defence that there was no reasonable possibility of an

     innocent explanation which he could put forward and maintain

     under cross-examination to rebut the inferences, which could be

     drawn from the evidence given in Court, and that the inferences

     which the Crown submitted should be drawn from the evidence,

     namely that he had the shotgun with him in the Sierra and that

     he threw it into the yard of 10 Easton Crescent to avoid its

     detection by the police, were correct.

           We are satisfied that the trial judge did not err in

           drawing those inferences and in coming to the conclusion

           that the appellant was guilty of the offences in Counts 2

           and 3 of the indictment."

     The applicant's application for leave to appeal to the House of

Lords was refused by the Court of Appeal on 19 February 1993.

b.   Relevant domestic law and practice

     Article 4 of the Criminal Evidence (Northern Ireland) Order 1988

provides as relevant:

     Accused to be called upon to give evidence at trial

     4. (1) At the trial of any person (other than a child) for an

     offence paragraphs (2) to (7) apply unless -

           (a) the accused's guilt is not in issue; or

           (b) it appears to the court that the physical or mental

           condition of the accused made it undesirable for him to be

           called upon to give evidence;

     but paragraph (2) does not apply if, before any evidence is

     called for the defence, the accused or counsel or a solicitor

     representing him informs the court that the accused will give

     evidence.

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

     (a) shall tell the accused that he will be called upon by the

     court to give evidence in his own defence; and

     (b) shall tell him in ordinary language what the effect of this

     Article will be if -

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

           (ii) having been sworn, without good cause he refuses to

           answer any question;

     and thereupon the court shall call upon the accused to give

           evidence.

     (3) If the accused -

     (a) after being called upon by the court to give evidence in

     pursuance of this Article, or after he or counsel or a solicitor

     representing him has informed the court that he will give

     evidence, refuses to be sworn; or

     (b) having been sworn, without good cause refuses to answer any

     question, paragraph (4) applies.

     (4) The court or jury, in determining whether the accused is

     guilty of the offence charged, may -

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

     (b) on the basis of such inferences, treat the refusal as, or as

     capable of amounting to, corroboration of any evidence given

     against the accused in relation to which the refusal is material.

     (5) This Article does not render the accused compellable to give

     evidence on his behalf, and he shall accordingly not be guilty

     of contempt of court by reason of a refusal to be sworn.

     (6) For the purposes of this Article a person who, having been

     sworn, refuses to answer any question shall be taken to do so

     without good cause unless -

     (a) he is entitled to refuse to answer the question by virtue of

     any statutory provision, or on the ground of privilege; or

     (b) the court in the exercise of its general discretion excuses

     from answering it."

COMPLAINTS

     The applicant complains that the inferences drawn against him

pursuant to the 1988 Criminal Evidence Order, deprived him of his right

to a fair trial and his right to be presumed innocent as guaranteed

under Article 6 paras. 1 and 2 of the Convention.  He contends that the

provisions of the 1988 Criminal Evidence Order operate in such a way

as to militate against the possibility of a fair trial of criminal

charges.  He also invokes Article 6 para. 3 of the Convention.

     The applicant further complains that the admission of Mrs. F's

statement by way of a written statement of evidence deprived him of his

right under Article 6 para. 3(d) of the Convention to cross-examine

witnesses against him.

PROCEEDINGS BEFORE THE COMMISSION

     The application was introduced on 15 April 1993 and registered

on 20 April 1993.

     On  30 August 1993, the Commission decided to communicate the

application to the Government and to ask for written observations on

the admissibility and merits of the case.

     By letter dated 8 September 1993, the applicant requested to

amend his application to include a complaint concerning the admission

in evidence of the statement of Mrs. F..

     The Government's observations were submitted on 24 February 1994,

after two extensions in the time-limit fixed for this purpose.  The

applicant's observations in reply were submitted on 27 June 1994, also

after two extensions in the time-limit.

     On 15 April 1994, the Commission decided to grant the applicant

legal aid.

     On 10 October 1994 the Commission decided to adjourn the

application pending the outcome of the proceedings before the European

Court of Human Rights in the case of John Murray v. United Kingdom.

     Following the Commission's decision of 2 March 1996 to that

effect, the parties were invited to submit any additional observations

which they might consider appropriate on the relevance of the judgment

of the European Court of Human Rights of 8 February 1996 in the case

of John Murray (to be published in 1996 Reports) to the facts of the

application.

     The Government submitted its supplementary observations on

8 May 1996, after one extension in the time-limit set for his purposes.

The applicant did not submit supplementary observations.

THE LAW

     The applicant complains that the adverse inferences drawn under

Article 4 of the Criminal Evidence (Northern Ireland) Order 1988 ("the

1988 Criminal Evidence Order") from his refusal to give evidence in

Court in effect meant that he was compelled to give evidence, was not

presumed innocent and was forced to incriminate himself.  He complains

that in the circumstances his trial was unfair and that he was denied

the guarantees of Article 6 (Art. 6) of the Convention.  That

provision, so far as relevant, provides as follows.

     "1.   In the determination of his civil rights and

     obligations or of any criminal charge against him, everyone

     is entitled to a fair and public hearing within a

     reasonable time by an independent and impartial tribunal

     established by law. ....

     2.    Everyone charged with a criminal offence shall be

     presumed innocent until proved guilty according to law."

     The Government submit, inter alia, that the provisions of the

1988 Criminal Evidence Order did not operate to deprive the applicant

either of a fair hearing, contrary to Article 6 para. 1 (Art. 6-1) of

the Convention, or of the presumption of innocence contrary to Article

6 para. 2 (Art. 6-2) of the Convention. They refer to the safeguards

provided in Article 4 of the 1988 Criminal Evidence Order: no inference

may be drawn unless the suspect/accused has been warned in advance of

the possible effects of remaining silent; before any inference is drawn

the prosecution must have established a prima facie case against the

accused; the trier of fact has a discretion whether to draw an

inference and may only draw such inferences as appear proper. They

claim that the 1988 Criminal Evidence Order merely allows the trier of

fact to draw such inferences as common sense dictates and the

prosecution is still required to prove the case against the applicant

to the usual standard, beyond reasonable doubt.

     The Government further submit that the applicant had a right to

remain silent since Article 4(5) of the 1988 Criminal Evidence Order

expressly provides that an accused cannot be compelled to give evidence

and is not subject to any fine, imprisonment or any other punishment

for failing to do so.  As to the indirect compulsion to give evidence,

the Government state that there is a real distinction between, on the

one hand, compelling an accused to speak on pain of criminal sanctions

and, on the other, conferring a discretion on the trier of fact, in

appropriate cases and subject to important safeguards, to draw

inferences from the accused's decision not to offer any explanation of

the evidence establishing a prima facie case against him.

     The Government submit that the matters that led the Court to

conclude in the case of John Murray v. United Kingdom (see above), that

the degree of compulsion (as regards the giving of evidence) was not

such as to amount to a violation of Article 6 (Art. 6) of the

Convention, are applicable to all cases where the provisions of the

1988 Criminal Evidence Order are applied.

     The Government submit that in all cases where an inference is

drawn under Article 4 of the 1988 Criminal Evidence Order by the

domestic court, it will be because the situation is one which the court

considers clearly calls for an explanation from the accused.  They

argue that this accords with the procedure adopted by the Court in John

Murray v. United Kingdom (see above) where it was stated that in order

to decide whether in a particular case it was fair and reasonable to

draw any or the particular inference from an accused's silence, regard

must be had to the other evidence in the case and to all the

circumstances of the case.  Accordingly, it is claimed that in all

cases where an inference is drawn under the 1988 Criminal Evidence

Order, the domestic court will have taken into account the necessary

factors before deciding to draw the inference.

     The Government further submit that the removal of the right of

the defendant to submit a written sworn statement of evidence, as

effected by the Police and Criminal Evidence (Northern Ireland) Order

1989, and the requirement that, if an accused does give evidence, he

does so on oath and subject to his account being probed in cross-

examination (the most effective way of enabling the trier of fact to

judge whether or not an accused is telling the truth) is an important

corollary to the right of an accused to give evidence and does not

render the trial unfair.

     The applicant submits that the right to a fair trial includes the

right to be presumed innocent and the right not to be forced to

incriminate oneself or to give evidence in one's defence.  He submits

that there is an overlap between the "right to silence" and the

"presumption of innocence".

     The applicant submits that Article 4 allows inferences to be

drawn from an accused's silence in any case where a "prima facie" case

has been established, that is the case has not been dismissed by the

judge on the basis that there is insufficient evidence to support the

prosecution.  He further submits that the Government's claim that

inferences can only be drawn when "common sense permits it" or when "it

is proper" in fact gives a tribunal full power to decide when to draw

such inferences, there being no clear definition as to the

circumstances in which inferences can be drawn.  He submits that in

view of this the safeguards relied on by the Government as significant

in protecting an individual's rights should not be overestimated.

     The applicant contends that the de facto position under Article 4

of the 1988 Criminal Evidence Order is that the accused is compelled

to give evidence.  As stated above, a refusal to give evidence can

result in adverse inferences being drawn against an accused

irrespective of how weak the prima facie case is.  The accused is

called to give evidence either by a judge acting as judge and jury or

by a judge in front of the jury.  In view of the warning made under

Article 4, he is likely to be looked on unfavourably by either tribunal

of fact if he fails to accede to the judge's call to give evidence such

that he is under a strong compulsion to give evidence.  Finally, if he

does accede to the judge's order and is sworn in, a refusal to answer

any question put to him in the witness box, whether potentially

incriminatory or not, would render him liable to prosecution for

contempt of court, while if he lied under oath he could be prosecuted

for perjury.

     The applicant therefore submits that Article 4 of the 1988

Criminal Evidence Order operates against the principle that an accused

cannot be forced to incriminate himself, considered by the Commission

to be an important element of a fair trial (No. 19187/91, Saunders v.

United Kingdom Comm. Rep. 10.5.94, para. 72).  He further makes

reference to Article 14(3)(g) of the International Covenant on Civil

and Political Rights that guarantees the right of an accused person

"not to be compelled to testify against himself and to confess guilt".

The applicant makes further reference to the UN Human Rights Committee

in Kelly v. Jamaica where it was held that the "right against self

incrimination" implied an obligation for the investigating authorities

to abstain from any direct or indirect physical or psychological

pressure with a view to obtaining a confession of guilt.

     The applicant further submits that the application of Article 4

of the 1988 Criminal Evidence Order in a criminal trial involves

numerous breaches of the right to be presumed innocent.  He submits

that an essential element of the right is that the burden of proof is

on the prosecution and that any doubt should benefit the accused

(Eur. Court HR, Barberà, Messegué and Jarbado v. Spain judgment of

6 December 1988, Series A no. 146 para. 7).  He submits that the fact

that Article 4 entitles a judge or jury to draw the inference that the

accused must be guilty of the offence charged, from his refusal to give

evidence, demonstrates that the burden of proof has been reversed, such

that the applicant cannot have been presumed innocent.  He further

submits that the right against self-incrimination referred to above is

itself an aspect of the presumption of innocence; the accused should

not be required to prove anything, let alone his innocence and should

not therefore be compelled, whether directly or indirectly to give

evidence.  As regards the Government's submission that the accused

cannot be found guilty simply because he has refused to give evidence,

the applicant states that it would be absolutely astonishing if he

could be.

     Consequently the applicant submits that the prosecution has not

discharged the burden of proving the guilt of the accused and has only

proved a prima facie or provable case.  The role that the adverse

inference played in determining guilt was of such significance as to

"prove" the case, and in these circumstances it cannot be said that the

applicant was presumed innocent.  By the trial judge putting pressure

on the applicant to give evidence and so effectively asking him to

prove his innocence, the burden of proof was reversed and the right to

be presumed innocent as laid down in Article 6 para. 2 (Art. 6-2) of

the Convention was violated.

     The applicant submits that there were aggravating features that

also made the trial unfair.  First, the evidence of one of the main

prosecution witnesses, Mrs. F., was submitted by way of a sworn written

statement, which the trial judge exercised his discretion under Article

3 of the Criminal Justice Order to admit despite the objections of the

defence.  The applicant therefore had no chance to cross-examine the

witness in particular as to (a) the nature of the noise which she had

heard in her garden, (b) whether it could have come from an adjacent

garden or alleyway, (c) the time lag between the noise and the ringing

of the door bell, (d) whether the police had been speaking to some

youths in the street and (d) why she had said that the conversation on

the doorstep was between the accused and her daughter, not herself, as

police evidence had established.  Secondly, the written statement of

Mrs. F. was untruthful and unreliable and no weight should have been

placed on it.  Thirdly, the judge failed to give any or sufficient

weight to the argument of the defence, based on forensic evidence, that

it was more likely that the gun had been placed against the step than

thrown across a high wall.  Fourthly, there was absolutely no forensic

evidence to connect the applicant to the gun and there was evidence to

suggest contact with other fibres.  Finally, the applicant refers to

the fact that he accounted for his movements, his actions and his

presence to the police who arrived at the scene in Easton Crescent and

that he gave a very full account to the police when he was interviewed

more than eight times over a period of two days at Castlereagh Police

Station.  It is submitted that his evidence was tested in a very

searching way by experienced detectives and that sworn testimony could

not have added to what he had already said.

     The Commission considers, in the light of the parties'

submissions, that these complaints raise complex issues of law and fact

under the Convention, the determination of which should depend on an

examination of the merits of the application as a whole.  The

Commission concludes, therefore, that this part of the application is

not manifestly ill-founded, within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.  No other grounds for declaring it

inadmissible have been established.

2.   The applicant further complains that Mrs. F, the main prosecution

witness, had given evidence by way of a written statement and that it

had not been possible for the applicant's representative to cross-

examine her in court.  He invokes Article 6 para. 3(d)

(Art. 6-3-d) of the Convention.  That provision, so far as relevant,

provides as follows.

     "3.   Everyone charged with a criminal offence has the

     following minimum rights: ...

           d.    to examine or have examined witnesses against him and

     to obtain the attendance and examination of witnesses on his

     behalf under the same conditions as witnesses against him;"

     The Commission observes that the applicant first made this

complaint by letter of 8 September 1993, when a request was made to

amend his original application, which is over six months from the date

of the final decision in relation to his complaints, which was the

judgment of the the Court of Appeal given on 30 July 1992.  The

complaint was then included in the applicant's observations submitted

on 29 June 1994, that is over 16 months from the final decision.

     It follows that this part of the complaint must be rejected in

accordance with Article 27 para. 3 (Art. 27-3) of the Convention as not

having been made within the requisite six month time period.

     For these reasons, the Commission, unanimously ,

     DECLARES ADMISSIBLE without prejudging the merits, the

     applicant's complaints relating to the inferences drawn from his

     refusal to give evidence in his defence;

     DECLARES INADMISSIBLE the remainder of the application.

        H.C. KRÜGER                          S. TRECHSEL

         Secretary                            President

     to the Commission                    of the Commission

 

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