EUROPEAN COMMISSION OF HUMAN RIGHTS
Application No. 22384/93
Kevin Murray
against
the United Kingdom
REPORT OF THE COMMISSION
(adopted on 2 December 1997)
TABLE OF CONTENTS
page
I.INTRODUCTION
(paras. 1-19)1
A.The application
(paras. 2-4)1
B.The proceedings
(paras. 5-14)1
C.The present Report
(paras. 15-19)2
II.ESTABLISHMENT OF THE FACTS
(paras. 20-40)4
A.Particular circumstances of the case
(paras. 20-37)4
B.Relevant domestic law and practice
(paras. 38-40)11
III.OPINION OF THE COMMISSION
(paras. 41-83)15
A.Complaints declared admissible
(para. 41)15
B.Points at issue
(para. 42)15
C. As regards Article 6 para. 1 of the Convention
(paras. 43-58)15
CONCLUSION
(para. 59)19
D. As regards Article 6 paras. 2 and 3(b) of the
Convention
(paras. 60-61)19
CONCLUSIONS
(paras. 62-63)19
E.As regards Article 6 para. 3(c) of the Convention
(paras. 64-69)20
CONCLUSION
(para. 70) 20
F.As regards Article 14 of the Convention
(paras. 71-73)20
CONCLUSION
(para. 74)21
TABLE OF CONTENTS
Page
G.As regards Article 13 of the Convention
(paras. 75-76)21
CONCLUSION
(para. 77)21
H.Recapitulation
(paras. 78-83) . . . . . . . . . . . . . . . . . . . . 21
PARTLY DISSENTING AND PARTLY CONCURRING
OPINION OF MR. E. BUSUTTIL 22
PARTLY DISSENTING AND PARTLY CONCURRING
OPINION OF MR. L. LOUCAIDES23
APPENDIX I:PARTIAL DECISION OF THE COMMISSION AS TO THE
ADMISSIBILITY OF THE APPLICATION . . . . . . . . . . 24
APPENDIX II:FINAL DECISION OF THE COMMISSION AS TO THE
ADMISSIBILITY OF THE APPLICATION38
I.INTRODUCTION
1.The following is an outline of the case as submitted to the European
Commission of Human Rights, and of the procedure before the Commission.
A.The application
2.The applicant is a British citizen born in 1970 and presently detained in
the Maze prison, Northern Ireland. He is represented by Messrs. John Fahy & Co.,
solicitors practising in Belfast.
3.The application is directed against the United Kingdom. The respondent
Government are represented by Mr Martin Eaton, as Agent, from the Foreign and
Commonwealth Office.
4.The case principally concerns the applicant's complaints concerning the
drawing of inferences at his trial from his refusal to answer police questions
and to give evidence in his defence and also denial of access to a solicitor for
48 hours after arrest. The case raises issues under Articles 6 paras. 1, 2 and 3
(b) and (c) of the Convention. The applicant has also invoked Articles 5 para.
3, 13 and 14 of the Convention.
B.The proceedings
5.The application was introduced on 27 April 1993 and registered on 15 July
1993.
6.On 11 October 1993, the Commission decided to communicate the application
to the Government inviting them to submit observations on the admissibility and
merits.
7.On 2 March 1994, after two extensions in the time-limit, the Government
submitted their observations. The applicant made no submissions in reply.
8.On 10 October 1994, the Commission decided to declare part of the
application inadmissible and to adjourn the remainder of the application pending
the outcome of the case of John Murray v. the United Kingdom before the European
Court of Human Rights.
9.On 2 March 1996, the Commission decided to invite the parties' additional
observations on the relevance of the John Murray v. the United Kingdom judgment
of 8 February 1996 (Reports 1996-I no. 1).
10.By letter of 10 March 1996, the applicant stated that he would make no
further observations.
11.On 10 May 1996, the Government submitted supplementary observations.
12.On 21 October 1996, the Commission declared the remainder of the
application partially admissible. It invited the parties' submissions on
specific questions.
13.On 15 January 1997, the Government submitted further observations, after
an extension in the time-limit. The applicant made no response.
14.After declaring the case admissible, the Commission, acting in accordance
with Article 28 para. 1 (b) of the Convention, placed itself at the disposal of
the parties with a view to securing a friendly settlement of the case. In the
light of the parties' reactions, the Commission now finds that there is no basis
on which a friendly settlement can be effected.
C.The present Report
15.The present Report has been drawn up by the Commission in pursuance of
Article 31 of the Convention and after deliberations and votes, the following
members being present:
MrS. TRECHSEL, President
MrsG.H. THUNE
MrsJ. LIDDY
MME. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
C.L. ROZAKIS
L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
D. ŠVÁBY
G. RESS
A. PERENI?
C. BÎRSAN
P. LORENZEN
K. HERNDL
E. BIELI?NAS
E.A. ALKEMA
M. VILA AMIGÓ
MrsM. HION
MMR. NICOLINI
A. ARABADJIEV
16.The text of the Report was adopted by the Commission on 2 December 1997
and is now transmitted to the Committee of Ministers in accordance with Article
31 para. 2 of the Convention.
17.The purpose of the Report, pursuant to Article 31 para. 1 of the
Convention, is
1)to establish the facts, and
2)to state an opinion as to whether the facts found disclose a breach
by the State concerned of its obligations under the Convention.
18.The Commission's partial decision on the admissibility of the application
is at Annex I, its final decision on admissibility at Annex II.
19.The full text of the parties' submissions, together with the documents
lodged as exhibits, are held in the archives of the Commission.
II.ESTABLISHMENT OF THE FACTS
A.Particular circumstances of the case
20.On 13 March 1989, at 07.30 hours, W.A., a part-time soldier in the Ulster
Defence Regiment (UDR), was injured after being shot four times by two gunmen
wearing balaclava helmets over their faces.
21.At about 10.45 hours on the same day, the police went to the applicant's
house and asked him to account for his movements since the previous evening. The
applicant stated that he had spent the previous night at a friend's house and
that he had returned to his own house at 09.00 hours that day. When questioned
about certain items of clothing, in particular a pair of jeans which had mud on
them, the applicant explained that he had worn them when out hunting on Saturday
11 March 1989 with his father.
22.At 11.28 hours, the applicant was arrested under section 12 of the
Prevention of Terrorism (Temporary Provisions) Act 1984 in connection with the
shooting of W.A..
23.The applicant was taken to Castlereagh Police Station, where on arrival he
requested to see a solicitor. At 13.30 hours, a Detective Superintendent
authorised a delay in access to a solicitor for 48 hours, pursuant to section 15
of the Northern Ireland (Emergency Provisions) Act 1987.
24.The applicant was cautioned, pursuant to Article 3 of the Criminal
Evidence (Northern Ireland) Order 1988, that a failure to mention any fact that
he later relied on in his defence in court might be treated as supporting the
case against him. He was also cautioned, pursuant to Article 5 of the Criminal
Evidence Order 1988, in respect of adverse inferences which might be drawn from
any failure to account for items of clothing in his possession on which were
marks or substances attributable to participation in the commission of an
offence, and also in respect of fibres found in his hair from a balaclava helmet
allegedly used by one of the gunmen. The applicant remained silent.
25.The applicant saw his solicitor on 15 March 1989 at 11.26 hours. He was
advised to remain silent.
26.On 18 March 1989, the applicant was charged with attempted murder and
possession of a firearm with intent to endanger life. He was subsequently
charged with the wounding of W.A. and possession of a firearm for no lawful
object.
27.The applicant was tried before a judge sitting without a jury from 26 to
28 November 1990.
28.At his trial, the applicant, on the advice of his legal advisers, did not
give evidence.
29.The prosecution case was founded on circumstantial evidence of a forensic
nature linking the applicant with the Vauxhall car allegedly used by the gunmen.
The evidence consisted of the following:
(a)fresh tyre imprints at the entrance to a field just off Ballyskeagh Road,
towards which the gunmen had run, matching those of a Vauxhall Cavalier ("the
car") belonging to P.L.;
(b)behind the driver seat of the car, a sleeve of a black woollen jumper
containing two holes that would have made a balaclava type mask, on which were
found particles that were consistent with having originated from the discharge
of a cartridge;
(c)a thumb print of the applicant on the interior rear view mirror but no
evidence as to when it was made;
(d)oral evidence from P., a prosecution witness, that the applicant had
flagged the Vauxhall car down at about 01.30 hours on 13 March 1989 and had got
into the car to talk to B. for about ten minutes; a written statement by P.
stating that the applicant had not got into the car but had talked to E.L., the
driver, outside the car;
(e)evidence from P. that on Saturday 11 March 1989 the applicant had driven
E.L. and himself to and from a dance in Omagh in the Vauxhall car and had
dropped him at home at 03.00 hours;
(f)evidence from L.L. that he had seen the applicant driving with his brother
E.L. some time in the beginning of March;
(g) evidence from P.L., the owner of the car, that he had seen his son E.L. in
the company of the applicant but had never seen him in the car;
(h)three fibres in the applicant's hair that were microscopically
indistinguishable from the fibres of the balaclava. Two of the fibres were
further analysed and found to have been made from the same type of acrylic
material as the balaclava. One of these was further analysed and found to be
dyed with the same combination of dyestuffs as the fibres of the balaclava.
However, these fibres were found to be indistinguishable from the black fibres
in the waistband and cuffs of an anorak or black cotton coat belonging to the
applicant. This anorak was found by the police over the back of a chair in the
applicant's house when they visited it on the morning of the crime. The
forensic expert's conclusion was that "he would not attach particular weight to
that finding";
(i)muddy jeans;
(j)the applicant's front door key in the pocket of the muddy jeans;
(k)evidence from the victim in his statement of evidence and in cross
examination that the gunmen wore matching army type combat trousers (not jeans);
(l)fibres on the applicant's jeans and anorak that were indistinguishable
from that of the balaclava but also matched the black fibres of the waistband
and cuffs of the anorak such that the forensic expert did not consider much
weight could be attached to this finding;
(m)five fibres on the back of the anorak and the blue jeans which matched the
majority coloured fibre components in the Vauxhall's car upholstery. Two fibres
found on each of the front seats of the car that matched the minority turquoise
component of the waistband of the anorak. Although neither the particular
Vauxhall car nor the anorak would be a unique source of these fibres, the
forensic expert considered that these two findings taken together strongly
supported the proposition that the anorak and jeans had been in contact with the
front seats of the car. Although the presence of the small number of fibres
found on the applicant's clothing would be consistent with "fairly recent
contact", the fibres on the front seats of the car that matched the minority
component of the waistband of the anorak could have remained for longer than one
or two days, depending on the usage of the car and the number of people getting
in and out of it. If the car had been very little used the fibres could
possibly have been on the seats for weeks. It was feasible that the jeans and
anorak could have come either from contact with the Vauxhall "some time ago" or
alternatively from contact with other car seats containing identical fibres;
(n)the firearms expert found nothing of significance on the firearms swabs
taken from the applicant's anorak, or other clothing taken from him by the
constable. However, she detected particles consistent with cartridge discharge
residue in the inner surface of the waistband area of the muddy blue jeans. The
discharge was consistent with secondary transfer rather than primary discharge
residue. That meant that the particles found came from being in contact with a
source of cartridge discharge residue rather than from initial contact with the
cartridge discharge residue when the gun was fired. She could not say
positively that the particles actually came from cartridge discharge, but only
that it was more than likely that they did. She accepted that the particles
might have fallen from the shotgun used by the applicant and his father on
Saturday 11 March when they went shooting, but it was unlikely that the
particles would have been there after 24 hours unless the jeans had been taken
off and left undisturbed. If that had been the case however, she considered
that she would have been able to conclusively identify the residue as cartridge
discharge, which was not the case here;
(o)evidence from the applicant's father that he and his son had been shooting
at rabbits on 11 March, two days before the shooting of the UDR soldier.
30.On 18 January 1991, the applicant was found guilty of the offences of
attempted murder of W.A. and possession of a firearm with intent to endanger
life. He was sentenced to a total of eighteen years' imprisonment.
31.The judge found the following:
(a)that the Vauxhall car was used by gunmen;
(b)that the applicant was not at home at the time the crime was
committed and there was no evidence to support his assertion that he was in B.'s
house;
(c)that the applicant had some association with the car at O1.30 hours
on 13 March;
(d)that the relationship between the applicant and the owner of the car
was a friendly and easy going one such that the applicant could have borrowed
the car for the purposes of the crime;
(e)that the applicant's left thumb print was found on the interior rear
mirror of the car and it could have been made at the material time;
(f)that the balaclava found in the back seat of the car was consistent
with the one seen by the victim and it was left by the gunmen and that some
fibres matching it were found in the applicant's hair and he could therefore
have been wearing it;
(g)that there were fibres on the back of the applicant's jeans and
anorak that matched fibres in the car upholstery and that the applicant had not
got into the car at 01.30 hours as had been claimed by P. in his oral testimony,
so that the fibres could not have come from that alleged contact;
(h)that some firearm residue particles characteristic of secondary
transfer were found on the inner waistband of the applicant's blue jeans and
that they could have been deposited there if the applicant or one of the gunmen
had put his pistol in the waistband of his jeans after the shooting;
(i)that the blue jeans found three hours after the crime were damp and
muddy and the mud was visually the same as in the area where the car was parked;
(j)that the applicant's front door key was found in the pocket in the
jeans; and
(k)that if the victim was mistaken in his statement of evidence to the
police and in cross-examination, but not in evidence in chief, that both gunmen
were wearing combat type trousers, the dampness and mud could have been caused
by the applicant at or about the car or in the sheugh or in the particular area.
As regards these findings the judge stated:
"Each one of these single matters is not inconsistent with the guilty
participation of the accused in the crime. Some are more consistent with guilt
than others. Not one of them, however, in itself, proves guilt to the standard
of proof required. For each of them, as Mr B. stressed in his closing speech, there may be a counterbalancing explanation consistent with innocence. Although, in turn, some of them are less consistent with innocence than others." 32.In convicting the applicant, the trial judge relied upon Article 4 of the Criminal Evidence Order 1988, pursuant to which at the end of the prosecution case he had called upon the applicant to give evidence in his own defence in default of which adverse inferences could be drawn. He also drew inferences under Article 3 of the Criminal Evidence Order 1988 from the applicant's silence during questioning by the police. However, he adopted a different approach in respect of inferences that could have been drawn on the basis that the applicant had given some explanations to the police prior to his arrest. 33.The trial judge stated in regard to Article 3 of the Criminal Evidence Order 1988 and the applicant's failure to respond to questions by the police: "By this silence, can it be said that he failed to mention facts relied upon in his defence at the trial? I do not forget that before he was cautioned under Article 3 at Castlereagh he gave a general account of his movements to Detective Constable Bell and explained the condition of his jeans on the ground that he had been out "hunting" two days before. What he omitted to do in reply to the caution under Article 3 was to repeat these matters of his defence and to fail to answer questions relative to their detail. He omitted to mention at all and this to me is significant that he had driven the Vauxhall car on the Saturday night before the crime and that he had met up with the early hours of the 13th. I consider that have been expected" to have mentioned these matters at Castlereagh. The "hunting" story could have been investigated by the police. Its forensic significance would have been considered by the firearms expert. The potentially damning evidence of the fingerprint, if left unexplained, found on the car mirror was brought home to the accused at Castlereagh in clear language as was the evidence linking the car to the scene of the crime. The incriminating nature of fingerprint evidence must be well-known to any member of the public. I would have expected a suspect when faced with this, if he had an innocent alternative to give, to have given it. I do not, however, in all the circumstances draw the strongest adverse inference that one may be entitled to draw in other cases under Article 3. My reason is that he did disclose in general terms some of the facts relied on in his defence. But I do find that his failure to mention the particular matters that he did, many of which were of the greatest importance in his defence, reduces the credibility of his defence and increases the weight of the prosecution case..." In relation to the applicant's silence in court and the application of Article 4 of the Criminal Evidence Order 1988, the trial judge commented: "In the instant case it seems to me that what the prosecution has proved in evidence calls for evidence from the accused in the witness box. No reasons have been advanced for his refusal to give evidence. Nor are any reasons apparent to the court for withholding his account on oath. Indeed it seems to me remarkable he has not given evidence. It is not the function of the court to conjure up reasons for his silence. He has been told by the court in plain language what the consequences of his failure may be and he has no doubt been advised by his experienced counsel to the same effect. It is only commonsense, in the circumstances, to infer as proper inference that he is not prepared to assert his innocence on oath because that is not the case. The inference which I draw from his failure to give evidence under Article 4 is stronger and much more to his detriment than that drawn by me under Article 3." 34.The applicant appealed against his conviction, alleging inter alia that the judge had erred in applying Article 4 of the 1988 Criminal Evidence Order in his case. The appeal was dismissed by the Court of Appeal in Northern Ireland on 25 October 1991. Lord Chief Justice Hutton, giving the judgment of the court, rejected the argument by the applicant's counsel that the approach of the trial judge had the effect of reversing the burden of proof. It found that the trial judge had not acted improperly in drawing an inference from the applicant's failure to give evidence: "The right of the court under Article 4 to draw such inferences as appear proper arises once the Crown has established a prima facie case and does not require that the Crown case constituted by the evidence should be 'on the brink' of proving guilt or should create a situation which at common law would be regarded as a 'confession and avoidance' situation. But whether or not the court will draw inferences will depend upon the circumstances of the particular case and, if inferences are drawn, the strength of those inferences will also depend upon the particular circumstances of the case. There may be cases where, despite the refusal of the accused to give evidence when called upon by the court to do so pursuant to Article 4, the court may think it inappropriate to draw any inferences against him. Moreover, before convicting, the court, having regard to the evidence adduced by the Crown and to the inferences (if any) which it draws under Article 4, must always be satisfied that the Crown has discharged the burden of proving that the accused is guilty beyond a reasonable doubt. Article 4 does not alter the fundamental principle that the burden rests on the Crown to prove guilt beyond a reasonable doubt. The refusal of the accused to give evidence on his own behalf does not in itself indicate guilt. Under Article 4 it would be improper for the court to draw the bare inference that because the accused refused to give evidence in his own defence he was therefore guilty. But where commonsense permits it, it is proper in an appropriate case for the court to draw the inference from the refusal of the accused to give evidence that there is no reasonable possibility of an innocent explanation to rebut the prima facie case established by the evidence adduced by the Crown, and for the drawing of this inference to lead on to the conclusion, after all the evidence in the case has been considered, that the accused is guilty... We consider that in this case the trial judge was entitled to draw the inference from the refusal of the appellant to give evidence in his own defence that there was no reasonable possibility of an innocent explanation which he could put forward to rebut the inference which could be drawn from the evidence adduced by the Crown, and that accordingly the inference which the Crown submitted should be drawn from that evidence, namely that the appellant was one of the gunmen who used the Vauxhall car and who shot and wounded correct and that therefore the appellant was guilty..." 35.While the Court of Appeal found that the trial judge had erred in drawing an inference under Article 3 of the 1988 Criminal Evidence Order from the failure to offer an explanation for the fingerprint (ie. the fingerprint had not been identified as that of the applicant until after his interviews with the police), it found that this error did not invalidate his general findings in respect of Article 3. It concluded that the convictions were not thereby rendered unsafe or unsatisfactory. 36.The applicant was granted leave to appeal to the House of Lords. 37.In its judgment of 29 October 1992, the House of Lords rejected the applicant's appeal, agreeing with the judgment of the Court of Appeal. Lord Slynn in the leading judgment stated: "The accused cannot be compelled to give evidence but he must risk the consequences if he does not do so. Those consequences are not simply, as the appellant contends, that specific inferences may be drawn from specific facts. They include in a proper case the drawing of an inference that the accused is guilty of the events with which he is charged. This does not mean that the court can conclude simply because the accused does not give evidence that he is guilty. In the first place the prosecutor must establish a prima facie case - a case for him to answer. In the second place in determining whether the accused is guilty the judge or jury can draw only 'such inferences from the refusal as appear proper'. As Lord Diplock said in Haw Tua Tau v. Public Prosecutor at p. 153B: 'What inferences are proper to be drawn from an accused's refusal to give evidence depend upon the circumstances of the particular case, and is a question to be decided by applying ordinary commonsense.' There must thus be some basis derived from the circumstances which justify the inference. If there is no prima facie case shown by the prosecution there is no case to answer. Equally, if parts of the prosecution had so little evidential value that they called for no answer, a failure to deal with those specific matters cannot justify an inference of guilt. On the other hand if aspects of the evidence taken alone or in combination with other facts clearly call for an explanation which the accused ought to be in a position to give, if an explanation exists, then a failure to give any explanation may as a matter of commonsense allow the drawing of an inference that there is no explanation and that the accused is guilty... In the present case if the only evidence relied on was that relating to the fibres in the hair, on the clothing and in the car, it might well not be enough to justify an inference that the accused was guilty beyond a reasonable doubt. The cartridge residue on the jeans, the thumb print on the mirror and the mud on the trousers, the evidence that he was not at home during the night clearly taken in combination call for an explanation if there was one. The judge was moreover entitled to have regard to the cumulative effect of all the circumstantial evidence in deciding whether a failure to give evidence justified an inference of guilt. In my opinion the evidence adduced by the prosecution established a clear prima facie case and the trial judge was entitled in all the circumstances of the case, and as a matter of commonsense, to infer that there was no innocent explanation to the prima facie case and that the accused was guilty... Contrary to the that simply because the accused did not give evidence he was therefore guilty..." B.Relevant domestic law and practice 1.Provisions governing inferences which may be drawn from an accused's silence 38.Article 3 of the Criminal Evidence (Northern Ireland) Order 1988 (hereafter referred to as the Criminal Evidence Order 1988) provides as relevant: "Circumstances in which inferences may be drawn from accused's failure to mention particular facts when questioned, charged, etc. 3.(1) Where, in any proceedings against a person for an offence, evidence is given that the accused (a) at any time before he was charged with the offence, on being questioned by a constable trying to discover whether or by whom the offence has been committed, failed to mention any fact relied on in his defence in those proceedings; or (b) on being charged with the offence or officially informed that he might be prosecuted for it, failed to mention any such fact, being a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when so questioned, charged or informed, as the case may be, paragraph (2) applies. (2) Where this paragraph applies: (a) the court, in determining whether to commit the accused for trial or whether there is a case to answer, (b) a judge, in deciding whether to grant an application made by the accused under Article 5 of the Criminal Justice (Serious Fraud) (Northern Ireland) Order 1988 (application for dismissal of charge where a case of fraud has been transferred from a magistrates' court to the Crown Court under Article 3 of that Order), and (c) the court or jury, in determining whether the accused is guilty of the offence charged, may (i) draw such inferences from the failure as appear proper; (ii) on the basis of such inferences treat the failure as, or as capable of amounting to, corroboration of any evidence given against the accused in relation to which the failure is material. (3) Subject to any directions by the court, evidence tending to establish the failure may be given before or after evidence tending to establish the fact which the accused is alleged to have failed to mention." 39.Article 4 of the Criminal Evidence 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 makes it undesirable for him to be called upon to give evidence; but paragraph (2) does not apply if, before any evidence is called for the defence, the accused or counsel or a solicitor representing him informs the court that the accused will give evidence. (2) Before any evidence is called for the defence, the court (a) shall tell the accused that he will be called upon by the court to give evidence in his own defence, and (b) shall tell him in ordinary language what the effect of this Article will be if (i) when so called upon, he refuses to be sworn; (ii) having been sworn, without good cause he refuses to answer any question; and thereupon the court shall call upon the accused to give evidence. (3) If the accused (a) after being called upon by the court to give evidence in pursuance of this Article, or after he or counsel or a solicitor representing him has informed the court that he will give evidence, refuses to be sworn, or (b) having been sworn, without good cause refuses to answer any question, paragraph (4) applies. (4) The court or jury, in determining whether the accused is guilty of the offence charged, may (a) draw such inferences from the refusal as appear proper; (b) on the basis of such inferences, treat the refusal as, or as capable of amounting to, corroboration of any evidence given against the accused in relation to which the refusal is material." 2.Provisions governing access to a solicitor 40.Section 15 of the Northern Ireland (Emergency Provisions) Act 1987 provides as relevant: "15. Right of access to legal advice (1) A person who is detained under the terrorism provisions and is being held in police custody shall be entitled, if he so requests, to consult a solicitor privately... (4) If a person makes such a request, he must be permitted to consult a solicitor as soon as is practicable except to the extent that any delay is permitted by this section... (8) An officer may only authorise a delay in complying with a request under subsection (1) where he has reasonable grounds for believing that the exercise of the right conferred by that subsection at the time when the detained person desires to exercise it - ... (d) will lead to interference with the gathering of information about the commission, preparation or instigation of acts of terrorism; or (e) by alerting any person, will make it more difficult - i. to prevent an act of terrorism, or ii. to secure the apprehension, prosecution or conviction of any person in connection with the commission, preparation or instigation of an act of terrorism." The delay must be authorised by a police officer of at least the rank of superintendent (subsection (5)(a)), and the detained person must be told the reason for the delay (subsection (7)). The maximum delay is 48 hours. III.OPINION OF THE COMMISSION A.Complaints declared admissible 41.The Commission has declared admissible the applicant's complaints that the inferences drawn from his failure to answer police questioning and to give evidence in his defence violated his rights to a fair trial and to be presumed innocent of the charges brought against him as well as his rights of defence, and that he was denied access to a solicitor for 48 hours after his arrest. B.Points at issue 42.The issues to be determined in the present case are: -whether the drawing of adverse inferences deprived the applicant of a fair trial contrary to Article 6 para. 1 (Art. 6-1) of the Convention; - whether the drawing of adverse inferences infringed the presumption of innocence guaranteed by Article 6 para. 2 (Art. 6-2) of the Convention; -whether the drawing of adverse inferences deprived him of adequate facilities for his defence contrary to Article 6 para. 3(b) (Art. 6-3-b); -whether the denial of access to a solicitor for 48 hours after the applicant's arrest infringed Article 6 para. 3(c) (Art. 6-3-c) of the Convention; -whether there has been a violation of Article 14 (Art. 14) of the Convention; -whether there has been a violation of Article 13 (Art. 13) of the Convention. C.As regards Article 6 para. 1 (Art. 6-1) of the Convention 43.Article 6 para. 1 (Art. 6-1) of the Convention provides, as relevant: "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. ..." i.Submissions of the parties 44.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. They refer to the safeguards provided in Article 4 of the Criminal Evidence Order 1988: 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 Criminal Evidence Order 1988 merely allows the trier of fact to draw such inferences as common sense dictates. They further refer to the safeguards provided in Article 3 of the Criminal Evidence Order 1988: inferences may only be drawn in a specific limited category of cases (in this case the failure of the applicant to mention facts subsequently relied on in his defence), the accused must be warned of the consequences of remaining silent, the accused will not be prosecuted for refusing to answer police questions, the trier of fact has a discretion whether to draw inferences and may only do so when it appears proper. 45.The Government further submit that the drawing of inferences under Articles 3 and 4 of the Criminal Evidence Order 1988 did not mean that the trial judge presumed the applicant to be guilty or that the prosecution was not required to prove the case against the applicant to the usual standard, beyond reasonable doubt. Articles 3 and 4 simply enabled the trial judge to draw inferences based on common sense in the light of the "clear prima facie case" (per Lord Slynn) against the applicant. The Government further submit that 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 his trial unfair. 46.The Government further submit that the matters that led the Court to conclude in the case of John Murray v. United Kingdom (Eur. Court HR judgment of 8 February 1996 Reports 1996-I No.1 p. 30), that the degree of compulsion under Article 4 of the Order (as regards the giving of evidence at trial) 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, in particular, that if an inference is drawn under the Criminal Evidence Order 1988 by the domestic court, that will be because the situation is one which the court considers clearly calls for an explanation from the accused and that in this case the domestic court expressly concluded that the weight of the evidence against the applicant called for an explanation from him and that since none was forthcoming at trial, the inference drawn was a matter of common sense. 47.As to the inferences drawn under Article 3 (Art. 3), the Government submit that a prima facie case based on forensic and other evidence was clearly made out without any need to rely on inferences. While the inferences drawn under Articles 3 and 4 (Art. 3, 4) were part of the totality of the case against the applicant and played a part in the judge's conclusion that the applicant was guilty of the offence of attempted murder, the role played by them was neither unfair or unreasonable having regard to the safeguards referred to above and the careful consideration applied by the courts. ii.Applicable principles 48.The Court in the John Murray case (Eur. Court. HR judgment of 8 February 1996 Reports 1996-I no. 1 p. 30) iterated the following principles: a. the right to remain silent under police questioning and the privilege against self-incrimination are generally recognised standards lying at the heart of a fair procedure under Article 6 (Art. 6), providing protection against improper compulsion; b. it is incompatible with these immunities to base a conviction solely or mainly on an accused's silence or his failure to answer questions or give evidence; c. these immunities do not however prevent that an accused's silence, in situations which clearly call for an explanation from him, be taken into account in assessing the persuasiveness of the prosecution case against him; d. whether the drawing of adverse inferences from an accused's silence infringes Article 6 (Art. 6) is to be determined in light of all the circumstances of the case, having regard to the situations where inferences may be drawn, the weight attached to them by the national courts in the assessment of the evidence and the degree of compulsion. 49.In the Saunders case (Eur. Court HR Reports 1996-VI No. 24 p. 2095, Comm. Report para. 72), the Commission noted that the privilege against self- incrimination was closely allied to the principle of the presumption of innocence in that it reflects that the State bear the general burden of establishing the guilt of an accused, in which process the accused is entitled not to be required to furnish any involuntary assistance by way of confession. iii.Application to the facts of this case 50.The Commission observes that in this case inferences were drawn against the applicant both under Article 3 of the Criminal Evidence Order 1988 for failure to respond to questions by the police and under Article 4 for failure to give evidence at his trial when called upon to do so by the judge. 51. As regards the compulsion involved, the Commission notes that the applicant was warned that inferences might be drawn from a failure to give explanations for himself in both contexts but that he chose to remain silent, which was not subject to sanction as an offence or contempt of court (see eg. Eur. Court HR Funke v. France judgment of 25 February 1993 Series A no. 256-A and Saunders v. UK judgment of 17 December 1996 Reports 1996-VI No. 24 p. 2044). As in the John Murray case, the fact that such silence may be subject to adverse inferences discloses a level of indirect compulsion, which is not of itself decisive. More important is the role played by those inferences in the proceedings and, especially, the applicant's conviction. 52.Concerning the applicant's failure to respond to police questioning, the Commission recalls that the trial judge found that the applicant could have been expected to explain in detail to the police his account of having been "hunting" a few days before, which was relevant to the finding of discharge residue on his jeans, to mention that he had met up with various witnesses during the early hours before the crime was committed and to explain the presence of his fingerprint on the Vauxhall car used in the crime. The Commission observes that the judge took into account the fact that the applicant had mentioned in general terms some of the facts relied on in his defence and did not therefore draw the strongest adverse inferences. The Court of Appeal found that the judge had erred in drawing an inference from lack of explanation of the fingerprint since, in fact, the matter had not been put to him at that time. The Court of Appeal nonetheless found that this one error did not invalidate the reasoning of the judge as regarded the other elements. 53.In respect of the applicant's failure to testify, the Commission recalls that the judge found that the prosecution case called for evidence from the applicant and that it was only common sense in the circumstances to infer that he was not prepared to assert his innocence on oath because that was not the case. He therefore drew a stronger inference than under Article 3. 54.The Commission notes that the inferences were not the only or principal evidence against the applicant, but that the judge relied on a large number of circumstantial factors linking the applicant with the crime, in particular his fingerprint found on the car used in the crime and firearm residue particles on the inside waistband area of his jeans. The Commission considers that, against this evidence, the situation could be said, on a common sense basis, clearly to call for an explanation by the applicant. 55.The Commission recalls that inferences drawn under Article 3 (Art. 3) were not in issue in the John Murray case. It notes that the purpose of Article 3 (Art. 3) is to permit the drawing of proper inferences from the failure of suspects to mention to the police any fact later relied on in their defence, to prevent the hampering of police investigations by accused who take advantage of their right to silence by waiting until trial to spring exculpatory explanations, in circumstances in which the accused has no reasonable explanation for withholding an explanation. It seems to the Commission that the extent to which adverse inferences can be drawn from failure to respond to police questioning must be necessarily limited. While it may no doubt be expected in most cases that innocent persons would be willing to co-operate with the police in explaining that they were not involved in any suspected crime, there may be reasons why in a specific case an innocent person would not be prepared to do so. In particular, an innocent person may wish not to make any statement before he has had the opportunity to consult a lawyer. The Commission therefore considers that considerable caution is required when attaching weight to the fact that a person, arrested, as in this case, in connection with a serious criminal offence and not having been given access to a lawyer, does not provide detailed responses when confronted with incriminatory evidence against him. 56.The Commission finds however that the role played by these inferences in the conviction of the applicant was restricted by the judge to a finding that the applicant's failure to mention the details of his defence reduced its credibility. It is clear from the judgment that this was a finding against the background of the judge's assessment of the probative value of the circumstantial evidence against the applicant and the weak nature of the applicant's explanation - namely, the "hunting" story did not account persuasively for the particles inside his jeans' waistband two days later. In these circumstances, the Commission is of the opinion that this did not go beyond the application of common sense implications based on the evidence taken as a whole. 57.As regards the drawing of inferences under Article 4 of the Order, due to the applicant's failure to testify, this case also differs from the John Murray case, where no violation was found in respect of inferences drawn from failure to give such explanation to the court, since the applicant in the present case did provide an explanation to the police. The Commission also notes that the inference under Article 4 was given greater weight by the judge than that drawn under Article 3 of the Order. However, the Commission finds, having regard to the judgment as a whole, that the applicant's failure to give evidence was used not to establish guilt per se but was an additional element adding to the persuasiveness of the prosecution case. It appears wholly in keeping with respect for the rights of the defence for a judge, in weighing the evidence supporting the prosecution and the innocent explanations for that evidence proffered by the defence, to take into account that the explanation of the accused which is in itself unconvincing was not supported by any oral evidence from the accused which might have added to its credibility. In assessing the prosecution evidence taken in combination with inferences, as proving the applicant's guilt beyond reasonable doubt, the judge did not go beyond his role in the appreciation of evidence, which is primarily within the competence of the domestic courts (eg. Eur. Court HR Edwards v. United Kingdom judgment of 16 December 1992, Series A no. 247-B). 58.Taking into account therefore the nature of the role played by the inferences in the circumstances of this case and the fact that they were not decisive for the finding of guilt, the Commission concludes that the proceedings did not fail to comply with the requirements of Article 6 para. 1 (Art. 6-1) as regards their fairness. CONCLUSION 59.The Commission concludes, by 30 votes to 2, that there has been no violation of Article 6 para. 1 (Art. 6-1) of the Convention. D.As regards Article 6 paras. 2 and 3(b) (Art. 6-2, 6-3-b) of the Convention 60.Article 6 paras. 2 and 3(b) (Art. 6-2, 6-3-b) of the Convention provide: "2.Everyone charged with a criminal offence shall be presumed innocent until proved guilty by law." "3.Everyone charged with a criminal offence has the following minimum rights: ... b. to have adequate time and facilities for the preparation of his defence;" 61.The Commission considers that the issues under Article 6 paras. 2 and 3(b) (Art. 6-2, 6-3-b) of the Convention are in this case closely linked to the issue under Article 6 para. 1 (Art. 6-1) and, having found that the latter Article has not been violated, it finds that for the same reasons there has been no violation of Article 6 paras. 2 or 3(b) (Art. 6-2, 6-3-b). CONCLUSIONS 62.The Commission concludes, by 31 votes to 1, that there has been no violation of Article 6 para. 2 (Art. 6-2) of the Convention. 63.The Commission concludes, unanimously, that there has been no violation of Article 6 para. 3(b) (Art. 6-3-b) of the Convention. E.As regards Article 6 para. 3(c) (Art. 6-3-c) of the Convention 64.Article 6 para. 3(c) (Art. 6-3-c) of the Convention provides: "3. Everyone charged with a criminal offence has the following minimum rights: ... (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require." 65.The applicant has complained that denial of access to a solicitor for 48 hours following his arrest violates the above provision. The Government did not contest the admissibility of this complaint nor that the reasoning of the majority of the Court in John Murray would lead to the finding of a breach. 66.While the applicant has also invoked Article 5 para. 3 (Art. 5-3) in this connection the Commission finds it appropriate to deal with the complaints under Article 6 para. 3(c) (Art. 6-3-c) alone. 67.The Commission recalls that the applicant asked to see his solicitor when he was brought to Castlereagh police office under arrest, but that a delay of 48 hours in access was authorised by a senior police officer pursuant to Section 15 of the Northern Ireland (Emergency Provisions) Act 1987. He was thereafter questioned by police officers and at his trial, inferences were drawn from his failure to mention certain matters to the police which were relied on in his defence. 68.Having regard to the system of adverse inferences which may drawn under the 1988 Order, in particular, as in this case, those that can be drawn under Article 3 from failure to answer police questions, the Commission observes that it is of paramount importance for the rights of the defence that an accused has access to a solicitor at the initial stages of police interrogation and that denial of access in a situation where the position of the defence may be irretrievably prejudiced is incompatible with the rights of the defence (Eur. Court HR John Murray judgment op. cit. para. 66). 69.The Commission finds therefore that the denial of access to the applicant to his solicitor during the first 48 hours of detention failed to comply with the requirements of Article 6 para. 3(c) (Art. 6-3-c) of the Convention. CONCLUSION 70. The Commission concludes, unanimously, that there has been a violation of Article 6 para. 3(c) (Art. 6-3-c) of the Convention. F.As regards Article 14 (Art. 14) of the Convention 71. Article 14 (Art. 14) of the Convention provides: "The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status." 72. The applicant has made no submissions explaining the grounds of this complaint made in his application form. 73. Having regard to the lack of explanations and to the findings above (para. 70), the Commission does not consider it necessary to examine this complaint further. CONCLUSION 74. The Commission concludes, unanimously, that it is not necessary to examine whether there has been a violation of Article 14 (Art. 14) of the Convention. G.As regards Article 13 (Art. 13) of the Convention 75.Article 13 (Art. 13) provides: "Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity." 76.The Commission recalls that Article 13 (Art. 13), as a more general guarantee, does not apply in cases where the more specific guarantees of Article 6 (Art. 6) apply, Article 6 (Art. 6) being the lex specialis in relation to Article 13 (Art. 13) and absorbing its requirements. CONCLUSION 77.The Commission concludes unanimously that no separate issue arises under Article 13 (Art. 13) of the Convention. H.Recapitulation 78. The Commission concludes, by 30 votes to 2, that there has been no violation of Article 6 para. 1 (Art. 6-1) of the Convention (para. 59). 79.The Commission concludes, by 31 votes to 1, that there has been no violation of Article 6 para. 2 (Art. 6-2) of the Convention (para. 62). 80.The Commission concludes, unanimously, that there has been no violation of Article 6 para. 3(b) (Art. 6-3-b) of the Convention (para. 63). 81. The Commission concludes, unanimously, that there has been a violation of Article 6 para. 3(c) (Art. 6-3-c) of the Convention (para. 70). 82. The Commission concludes, unanimously, that it is not necessary to examine whether there has been a violation of Article 14 of the Convention (para. 74). 83.The Commission concludes unanimously that no separate issue arises under Article 13 of the Convention (para. 77). M. de SALVIA S. TRECHSEL Secretary President to the Commission of the Commission (Or. English) PARTLY DISSENTING AND PARTLY CONCURRING OPINION OF MR E. BUSUTTIL I remain of the view, for the reasons set out in the dissenting part of my opinion in the John Murray case (Application No. 18731/91) decided by the Commission on 27 June 1994, that the drawing of adverse inferences from the applicant's silence deprived him of a fair trial and infringed the principle of the presumption of innocence. Accordingly, I consider that there has been a violation of both paras. 1 and 2 of Article 6 of the Convention. For the rest, I am in agreement with the opinion of the majority. (Or. English) PARTLY DISSENTING AND PARTLY CONCURRING OPINION OF MR L. LOUCAIDES To the extent that the case concerns the drawing of adverse inferences from the failure of the applicant to give explanations to the police I am unable to agree with the conclusion of the majority that in this case there has been no violation of Article 6 para. 1 of the Convention. I remain of the view, for the reasons set out in my dissenting opinion in the John Murray case (Application No. 18731/91, decided by the Commission on 27 June 1994, that the drawing of adverse inferences against an accused person because of his silence during the police questioning amounts to a violation of Article 6, para. 1 of the Convention. Otherwise I find myself in agreement with the majority as far as the conclusions reached regarding the drawing of adverse inferences from applicant's failure to give evidence at his trial and in this respect again refer to the above mentioned dissenting opinion. I also agree with the majority that there has been a violation of Article 6 para. 1 in conjunction with para. 3(c) of the Convention as regards the applicant's lack of access to a solicitor.
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