AS TO THE ADMISSIBILITY OF
Application No. 23496/94
by Dermot QUINN
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 30 September 1993
by Dermot QUINN against the United Kingdom and registered on
16 February 1994 under file No. 23496/94;
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
21 December 1995 and the observations in reply submitted by the
applicant on 10 March 1995;
- the further observations of the applicant, submitted on
3 April 1996 and those of the respondent Government submitted on
10 May 1996.
Having deliberated;
Decides as follows:
THE FACTS
The applicant is an Irish citizen born in 1964 and currently
serving a prison sentence in the Maze prison, Northern Ireland. He is
represented before the Commission by Mr. Martin Donaghy, a solicitor
practising in Dungannon.
a. The particular circumstances of the case
The facts of the present case as submitted by the parties may be
summarised as follows.
On 13 April 1988 two gunmen fired a considerable number of shots
at two detective constables in the Royal Ulster Constabulary (RUC),
I.M. and S.S., as they drove along a small lane leading off Ballygasoon
Road in County Armagh. A green Datsun car, which had pulled on to the
road in front of them and reversed back towards the police officers,
drove off after the incident. On the same day, three members of the
O'Hagan family made statements to the police that the armed gunmen had
arrived at their house (which was near to the scene of the shooting),
had seized the keys to their brown Peugeot car, and had driven off in
it. The police later found the cars abandoned, with 2 balaclava
helmets in the Peugeot.
The applicant was a passenger in a car driven by Mrs. McCartan
that was stopped by the police at a police check point in the vicinity
of the shooting one hour after events at the O'Hagan home. On being
questioned Mrs. McCartan stated that she was taking the applicant to
his girlfriend's home in Dungannon and the applicant stated that he had
been working on the mushrooms for Mr. and Mrs. McCartan and that he was
going to his girlfriend's home at Dungannon. The applicant and
Mrs. McCartan were arrested under section 12 of the Prevention of
Terrorism Act 1984. The applicant was told that he was suspected of
being involved in an attempted murder, several miles away. Paper bags
were put over the hands of the applicant and they were both taken to
Gough Barracks, Armagh. The applicant was interviewed from
14 April 1988 to 19 April 1988. He maintained silence throughout this
period. On termination of the interviews, the applicant was charged
with three offences of attempted murder and possession of ammunition
and was remanded in custody.
On 28 September 1988, at a preliminary investigation of the three
offences charged, the three O'Hagans were summoned to give evidence
before the Magistrates' Court. They failed to appear. Consequently,
they were arrested and brought to court on 29 September 1988 where they
stated that they were unwilling to make depositions because they were
afraid of the consequences. In the absence of a prima facie case
against the applicant, the Court discharged him.
On 26 October 1988, the Criminal Justice (Evidence etc) (Northern
Ireland) Order 1988 (hereinafter "the Criminal Justice Order") came
into force. It provided, inter alia, for the admission of evidence in
criminal proceedings by way of written testimony in circumstances where
the witness in question refuses to give oral evidence due to fear of
reprisals (see Relevant domestic law and practice below).
On 16 July 1990, the applicant was again arrested in relation to
the shootings of 13 April 1988, this time under section 14 of the
Prevention of Terrorism (Temporary Provisions) Act 1989. He asked to
see a solicitor and the police office attempted to contact one on his
behalf. Before a solicitor arrived, the applicant was cautioned in
accordance with Article 3 of the 1988 Criminal Evidence (Northern
Ireland) Order 1988 (hereinafter the "1988 Criminal Evidence Order")
in the following terms:
"You do not have to say anything unless you wish to do so but I
must warn you that if you fail to mention any fact which you rely
on in your defence in court your failure to take this opportunity
may be treated in court as supporting any relevant evidence
against you. If you do wish to say anything, what you may say may
be given in evidence."
The applicant was asked if he understood the caution but made no
reply. He was also given Appendix 'D' which set out the circumstances
in which adverse inferences could be drawn against him under the 1988
Criminal Evidence Order. He was asked to read it but showed no
interest. It was then read to him and he was asked if he understood
or wished to ask anything. In the course of the interviews the
applicant was asked to account for the firearms residue that had been
identified in his jacket pocket, the fibres that had been found in his
hair, and the glass fragments that had been found in the balaclavas on
13 April 1988. In relation to each of these questions he was warned
under Article 5 of the 1988 Criminal Evidence Order of the consequences
of his failing to give explanations. He made no reply to any
questions. He maintained his silence throughout a second interview
which also took place before the arrival of his solicitor.
Following the second interview, the applicant was charged with
two counts of attempted murder in respect of I.M. and S.S. on
13 April 1988 contrary to Article 3 of the Criminal Attempts and
Conspiracy (Northern Ireland) Order 1983 and common law and with the
possession of firearms and ammunition with intent by means thereof to
endanger life or cause serious injury to property, contrary to
Article 17 of the Firearms (Northern Ireland) Order 1981.
The three O'Hagans were summoned to appear as witnesses in a
preliminary investigation before the Resident Magistrate. Two appeared
but refused to give evidence.
The applicant was tried before a single judge sitting in a
"Diplock court" (a court specially convened for the trying of terrorist
offences) in respect of the three charges referred to above. The
O'Hagans were summoned to appear as witnesses. Again, only two came
to court where they stated that they did not wish to give evidence as,
they said, "it is a non-jury trial".
The prosecution requested the judge to exercise his discretion
under paragraph 3 of the Criminal Justice Order to admit the written
statements of the O'Hagans, that had been taken by police officers on
13 April 1988, as evidence in the proceedings. The applicant
contested the admission of the statements, claiming that since the
applicant would not be able to cross-examine the witnesses, the
admission of the evidence would result in unfairness to the accused.
In ruling that the statements were admissible, the judge stated
the following:
"I am satisfied beyond a reasonable doubt that the three members
of the O'Hagan family did not give evidence at the two
preliminary investigations because of fear. I have no doubt that
that fear has continued and the reason why evidence at this trial was through fear... I am satisfied beyond a reasonable doubt that the reason stated in this Court ... that they did not wish to give evidence because this was a non-jury trial is completely untrue. I am satisfied that this was a concocted and untruthful reason which was suggested to them by some-one else.... ..The provisions of Articles 5 and 6 of the 1988 Order are clearly designed to ensure that the accused receives a fair trial. As I am satisfied, having regard to those provisions, that it is in the interests of justice that the statements of the three O'Hagans should be admitted as evidence, it follows that I am satisfied that the accused will receive a fair hearing." In accordance with Article 6 of the 1988 Order, the judge found that the quality of the evidence in the statements was excellent with regard to consistency and reliability and that there was no risk of unfairness to the applicant who could have either given evidence himself or called other witnesses to controvert the statements. The prosecution evidence against the applicant also included forensic evidence: fibres from the applicant's hair matched those from the balaclavas found in the abandoned Peugeot and firearms' residue was found in the applicant's jacket pockets. The applicant gave evidence that at the relevant time he had been working in the mushroom house on the McCartan's farm and had worn a black woolly type hat when doing so. He suggested that the firearms residue found in his jacket might be due to the fact that he had been out shooting with an uncle and that on occasions he had picked up empty shotgun cartridges in the fields near his house. He also suggested that he might have been in contact with a Hilti gun when he had done engineering work in the past. He also explained that he had not told the police on the occasion of his second arrest about working on the farm since he had been arrested for something very serious and did not want to get into anything until he had seen his solicitor. Mr. McCartan appeared as a witness for the defence and gave evidence supporting the applicant's alibi. He stated that the accused helped him with cattle and with mushrooms and that on 13 April 1988 the accused had been helping him with mushrooms. The applicant had helped him with the mushrooms until about 9.00 pm and had asked his wife to drive him to Dungannon to his girlfriend's. The judge did not accept the applicant's defence and stated the following: "Observing the accused giving his evidence, I formed the view from his demeanour and from the way in which he gave his evidence that he was lying and that he gave a lying account of what he did between 5.00pm and 9.00pm on 13th April 1988. Observing Mr. McCartan giving his evidence it was patently obvious from his demeanour and the way which he gave his evidence that he was lying and that he had come into the witness box to give a totally untruthful account of what had happened on the afternoon and evening of 13th April in order to resist [assist] the accused". In his judgment, the judge found the applicant guilty having regard to the forensic evidence and the applicant's presence in the vicinity of the shooting. He also relied on the "very strong adverse inference" which he drew under Article 3 of the 1988 Evidence Order from the applicant's silence: "The accused was asked in cross-examination why in interviews in July 1990 he had not told the police that he had been working at the McCartan's on the evening of 13th April 1988. He replied that there had been talk of people going into police stations and being forced to make a statement. He also said that he had been arrested for something very serious and that he did not want to get into anything (and by this I understood him to mean that he did not want to say anything to the police) until he had seen his solicitor. I did not believe the accused when he gave these reasons for not giving any replies to the police. If it was true that he had been working at McCartan's at the time that the detective constables were attacked, it would have been obvious to him that he should have told the police of this, and it is quite clear that he would not have needed the advice of a solicitor before giving an account to the police which if true would have cleared him of the offences of which he was accused. I am satisfied that his conduct in giving no answers whatever to the questions put by the police was a deliberate tactic which a man with a truthful explanation in respect of the matters put to him would not have adopted. Mr Harvey inference should not be drawn against the accused under Article 3, because he had asked to consult with a solicitor when he first arrived at Gough Barracks Police Office, and section 15 of the Northern Ireland (Emergency Provision) Act 1987 gave him a right to consult a solicitor but the police interviewed him before his solicitor came to the Gough Barracks Police office to advise him. I reject that submission. The Criminal Evidence (Northern Ireland) Order 1988 was made law after section 15 of the Northern Ireland (Emergency Provisions) Act 1987 became law, and I consider that Parliament did not intend that an inference dictated by common sense which was permitted by Article 3 of the 1988 Order should not be drawn because of the right of access to legal advice given by section 15 of the 1987 Act. The present case was not one where the truthful explanation that a suspect, being interviewed by the police, could give, might or might not clear him of guilt and where he would need the advice of a solicitor before deciding to give the explanation. As I have already stated, if it were true that the accused was working at the McCartan's on the evening of 13 April 1988 when the two detectives were attacked, it would have been obvious to him that he should give this explanation and there was no reason why he should see a solicitor before giving that explanation. I consider it to be clear that Parliament did not intend that the change in the law brought about by Article 3 which permits and contemplates the drawing of a common sense inference in an appropriate case should be stultified by the existence of the right to legal advice given by section 15 of the 1987 Act. In the present case, I draw the strong adverse inference against the accused that his account in the witness box that on the evening of 13 April 1988 he had been working in the mushroom house, wearing a black woolly hat, was a complete falsehood. This matter taken together with the matters which I have referred to in (i), (ii) and (iii) above that he was a member of the terrorist gang who attacked the two detective constables and that he is guilty of the three counts on the indictment." The judge drew no inferences under Article 5 of the 1988 Criminal Evidence Order because the applicant had been asked to account for evidence that was present at the time of the first arrest on 13 April 1988 not at the time of the second arrest on 16 July 1990. On 23 December 1991, the applicant was convicted on two counts of attempted murder and on a single count of possession of firearms and ammunition with intent. He was sentenced to a total of 25 years' imprisonment. The applicant appealed on the grounds, inter alia, that the trial judge had erred in admitting the O'Hagan statements in evidence and that the trial judge had erred in drawing an adverse inference under Article 3 where the accused was questioned before receiving legal advice which he had requested. By its judgment of 17 September 1993, the Court of Appeal of Northern Ireland found that the judge had not erred in admitting the O'Hagan statements. Further, as regards the drawing of adverse inferences, the Court agreed with the trial judge: "it is inconceivable that if Parliament intended Article 3 should be read subject to s. 15 of the 1987 Act it would not have said so expressly...so far as the technical requirements of the law are concerned we are satisfied that there was no breach of any of those provisions by the interviewing officers in what they did. What then of the merits of the matter on which Mr. Harvey placed great stress? His main submission was that it was unfair and wrong for the judge to draw an adverse inference in the unusual circumstances of this case. In our view however it is important to look at the history of this case and particularly at the interviews during the first arrest period. During those earlier interviews after his first arrest the appellant was made completely aware of the forensic case which the police had against him... and... it would have been the easiest thing in the world for him, after the second arrest and after he had been warned clearly by the detectives of the consequences of his not saying anything on which he wished to rely later in his defence - it was the easiest thing in the world for him to say, "I can explain those fibres because I was wearing an acrylic hat a few hours before I was arrested." As regards firearms residues where was the difficulty in saying to the interviewers that he was often out with uncles who used sporting guns and often picked up spent cartridges? He had nearly two years to think out his position... No doubt...there had been a change in law between his two arrests - a point which must have been obvious to him when on 16 July 1990 the detectives explained the new rules in law, yet he made no request whatever for a postponement of the interview when it started ..Moreover D/I Cardew was not challenged when he said in evidence that there had been no deferral of the appellant's right to see a solicitor and if the appellant had asked for a postponement he would have immediately stopped the interview. In the result we take the view that there is no question of unfairness in what the learned judge did and that he was entirely right in drawing the inference which he did." The Court dismissed the applicant's appeal against his convictions. b. Relevant domestic law and practice Admissibility of statements of first-hand hearsay Article 3 of the Criminal Justice (Evidence etc) (Northern Ireland) Order 1988 provides so far as relevant: "3-(1) ... a statement made by a person in a document shall be admissible in criminal proceedings as evidence of any fact which direct oral evidence by him would be admissible if - ... (ii) the requirements of paragraph 3 are satisfied... (iii) the requirements mentioned in paragraph 1(ii) are - (a) that the statement was made to a police officer... and (b) that the person who made it does not give oral evidence through fear..." Article 6 provides that the court should follow certain principles in determining whether a statement should be admitted. It provides : "5(1)If, having regard to all the circumstances - (a) the Crown Court - (i) on a trial on indictment; or .. (b) the Court of Appeal;... is of the opinion that in the interests of justice a statement which is admissible by virtue of Article 3...nevertheless ought not to be admitted, it may direct that the statement shall not be admitted. (2) Without prejudice to the generality of paragraph (1), it shall be the duty of the court to have regard - (a) to the nature and source of the document containing the statement and to whether or not, having regard to its nature and source and to any other circumstances that appear to the court to be relevant, it is likely that the document is authentic; (b) to the extent to which the statement appears to supply evidence which would otherwise not be readily available; (c) to the relevance of the evidence that it appears to supply to any issue which is likely to have to be determined in the proceedings; and (d) to any risk, having regard in particular to whether it is likely to be possible to controvert the statement if the person making it does not attend to give oral evidence in the proceedings, that its admission or exclusion will result in unfairness to the accused.." Article 6 provides that a statement prima facie admissible under Article 3 which appears to the court to have been prepared for the purposes of "pending or contemplated criminal proceedings" is not to be given in evidence: "in any criminal proceedings without the leave of the court, and the court shall not give leave unless it is of the opinion that the statement ought to be admitted in the interests of justice; and in considering whether its admission would be in the interests of justice, it shall be the duty of the court to have regard - (i) to the contents of the statement; (ii) to any risk, having regard to whether it is likely to be possible to controvert the statement if the person making it does not attend to give oral evidence in the proceedings, that its admission or exclusion will result in unfairness to the accused or, if there is more than one, to any one of them; and (iii) to any other circumstances that appear to the court to be relevant." Provisions governing inferences which may be drawn from an accused's silence Article 3 of the Criminal Evidence (Northern Ireland) 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." Provisions governing access to a solicitor 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...". COMPLAINTS 1. The applicant complains that the drawing of an adverse inference from his silence in police custody infringes his rights under Article 6 paras. 1 and 2 of the Convention not to be required to incriminate himself, the presumption of innocence, his right to silence and the principle that the prosecution bear the burden of proving their case without assistance from the accused. He submits that this must particularly be the case where an accused is penalised for failing to make a statement in an interrogation conducted by the police before he receives advice from his lawyer. In his reply to the Government's Observations, the applicant has further invoked Article 6 para. 3(c) in conjunction with Article 6 para. 1 of the Convention in respect of the denial of access to a solicitor. 2. The applicant further complains of the admission in evidence of the statements of witnesses who were not present in court to be examined or cross-examined in court. He invokes Article 6 para. 3 (d) of the Convention. 3. The applicant also invokes Article 6 paras. 1 and 7 of the Convention on the basis that the rules permitting the admission of the witness statements came into force after the alleged crimes took place. PROCEEDINGS BEFORE THE COMMISSION. The application was introduced on 30 September 1993 and registered on 16 February 1994. On 30 August 1994 the Commission decided to communicate the application to the Government and to ask for written observations on the admissibility and merits of the case. The Government observations were submitted on 21 December 1995 after one extension in the time-limit fixed for this purpose. The applicant's observations in reply were submitted on 10 March 1995 after two extensions in the time-limit fixed for this purpose. On 20 May 1995 the Commission decided to adjourn further consideration of the application pending the outcome of the proceedings before the European Court of Human Rights in the case of John Murray v. United Kingdom (No. 18731/91). On 15 September 1995 the Commission decided the grant the applicant legal aid. On 2 March 1996 the Commission decided to invite the parties to submit any additional observations that they might consider appropriate on the relevance of the reasoning of the European Court of Human Rights in its judgment of 8 February 1996 in the case of John Murray v. United Kingdom, to the facts of the application. On 3 April 1996 the applicant submitted further observations. On 10 May 1996 the respondent Government submitted further observations after one extension in the time-limit set for this purpose. THE LAW 1. The applicant complains that the drawing of adverse inferences from his silence in police custody and the operation of the provisions of the 1988 Criminal Evidence Order infringed his right not to incriminate himself, the presumption of innocence, his right to silence and the principle that the prosecution bear the burden of proving their case without assistance from the accused. He complains in particular as to the adverse inferences drawn from his refusal to answer police questions in the absence of a legal adviser. He invokes Article 6 paras. 1 and 2 (Art. 6-1, 6-2) of the Convention. As regards access to legal advice, the applicant invokes Article 6 para. 3 (c) in conjunction with Article 6 para. 1 (Art. 6-3-c+6-1) of the Convention. The applicant further complains that the admission in evidence of the statements of the O'Hagans, who were not present in court to be examined or cross-examined, was contrary to Article 6 para. 1 (Art. 6-1) and to Article 6 para. 3 (d) (Art. 6-3-d) of the Convention. Those provisions, so far as relevant, provide 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. 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; 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". a. Concerning the drawing of inferences under the 1988 Criminal Evidence Order The Government submit inter alia that the drawing of inferences under Article 3 of the 1988 Criminal Evidence Order did not render the applicant's trial unfair contrary to Article 6 para. 1 (Art. 6-1) of the Convention or deprive the applicant of his right to be presumed innocent contrary to Article 6 para. 2 (Art. 6-2) of the Convention. They refer to the safeguards of Article 3 of the Order: that inferences may only be drawn when the fact that the accused failed to mention when questioned by police was one that he could reasonably have been expected to mention and that he later relied on in his defence; that inferences can only be drawn in a specific and limited category of case; that before any inference can be drawn against him the accused must have been warned as to the effect of his failure to mention any facts later relied on; that the accused retains the right to remain silent and will not be liable to any criminal charge for remaining silent in the face of police questioning; that the accused shall not have a case to answer or be convicted solely on an inference drawn from his failure to mention facts later relied on (Article 2(4)); that the trier of fact has a discretion as to whether to draw inferences and, in circumstances where the trier of fact considers the accused is particularly vulnerable, can draw no inference; and that the trier of fact may only draw such inferences as appear proper which will depend on all the circumstances of the case. As regards the inferences that were drawn under Article 3 of the Order in this case, the Government submit that there was a prima facie case against the applicant, based in particular on the forensic evidence against him: (a) the fibres linking the balaclavas with the accused and (b) the firearms residue found in the pockets of the applicant's jacket. They contend that a central feature of the case was the fact that the trial judge did hear the applicant give evidence and concluded that the applicant's version of events was a "lying account". The inference drawn under Article 3 was that his evidence was a "complete falsehood", and the inference in this case therefore went to support the conclusion that had already been reached by the judge as to the applicant's credibility. They submit that the applicant was warned on several occasions in the course of the 1990 interviews and was well aware of the significance of his failure to mention any of the matters which he subsequently put forward in his defence. As regards the presumption of innocence the Government submit that Article 3 of the Order does not make provision, either in form or in substance, for any presumption of fact or law against the accused. The prosecution remains obliged to prove beyond reasonable doubt all the elements of the offence charged. The Government submit that Article 3 merely enabled the trial judge to draw an inference based on common sense. The applicant submits that the 1988 Criminal Evidence Order has effectively abrogated the right to silence, since even if the accused can still remain silent, he does so at his peril, running the risk of allowing a prima facie case to be established against him on the basis of inferences drawn under Article 3(2)(A) of the 1988 Criminal Evidence Order which expressly provides that in determining whether there is a case to answer (prima facie case) the Court or Jury may draw such inferences from silence under police questioning as appear proper. By remaining silent he thereby risks securing his conviction under Articles 3 and 4 which allow the court or jury to infer that the accused is guilty of the offence charged. He recalls that in the case of John Murray v. United Kingdom, one of the factors considered by the Court to be a safeguard in the application of Articles 4 and 6 of the 1988 Criminal Evidence Order is the requirement that the prosecution must first establish a prima facie case before adverse inferences can be drawn. He submits that, by contrast, Article 3 is subject to no such safeguard. Whilst he accepts that a person can not be convicted solely on the basis of an inference drawn from a failure to mention facts later relied on in defence, he contends that persons who would previously have been acquitted or discharged for insufficient evidence against them are now being convicted. He refers to the limitless and comprehensive nature of the inferences which may be drawn, there being no statutory guidance as to what inferences may be "properly" drawn in any of the circumstances contemplated by, inter alia, Articles 3 and 4. He notes that the absence of legal advice does not preclude the court from drawing inferences from the applicant's silence in the face of police questioning under Article 3, as happened in this case. He further claims that the situation in which the applicant was being questioned was not one which "clearly called for an explanation", as described by the Court in its judgment in John Murray v. United Kingdom; in particular he was being questioned about very serious offences without having had any access to a lawyer. As regards the Government's claim that the accused is warned in ordinary language as to the consequences of his remaining silent in the face of police questioning, the applicant states that this is simply wrong, Article 3 containing no such requirement. Whilst accepting that a warning was given, the applicant submits that in the circumstances of this case the warning given could not be characterised as an "appropriate warning", the existence of which was considered by the Court in John Murray v. United Kingdom to be an important safeguard in the application of the 1988 Criminal Evidence Order. First, it was delivered at a time when the applicant had not had the benefit of proper legal advice. Secondly, there was no requirement to explain (unlike Article 4 and Article 6 of the 1988 Criminal Evidence Order) in ordinary language what the effect of the section was. Thirdly, the applicant was warned prior to being charged or informed that he was to be charged and it cannot therefore be appropriate in these circumstances to warn a person about the adverse consequences of failing to mention any fact "relied on in his defence". The applicant further submits that since Articles 3 and 4 were both applied in his case, he was put in an impossible situation. If, as was the case, he had not answered police questions but had then agreed to give evidence following the judge calling him to do so under Article 4, inferences could have been drawn against him under Article 3 (as was the case). If, however, he had refused to give evidence at trial, inferences could have been drawn against him under Article 3 and Article 4. If he had in fact given an explanation to the police and had then refused to give evidence at trial, inferences could have been drawn against him under Article 4 and also under Article 3 (in circumstances where his defence counsel relies on matters other than those he mentioned to the police in his defence). The applicant submits that he gave evidence at trial because he was under a compulsion to do so to avoid an adverse inference being drawn under Article 4, and consequently he incriminated himself to the extent that the Court was able to convict him by relying on Article 3. He was at no point warned that in giving evidence at trial he would be exposed to a risk of having adverse inferences drawn against him under Article 3. Further, once he had been sworn, a failure or refusal to answer any question put to him could itself have led to adverse inferences being drawn against him under Articles 4(3)(b) and 4(4) of the 1988 Criminal Evidence Order and proceedings being taken against him for contempt of court. It was therefore the combination of the provisions of the Order that was material in the applicant's conviction. Further, the applicant claims that the case against him was not "formidable" as it had been in John Murray v. United Kingdom, the evidence consisting largely of statements admitted under the Criminal Justice Order (which established the prima facie case against him), and that without the very strong adverse inference that was drawn, he could not have been convicted. As regards the Government's claim that the inference in this case merely went to support the view already formed by the judge as to the applicant's credibility, the applicant submits that this is not correct, the inferences drawn under Article 3 being an integral part of the decision to convict. The applicant claims that Murray v. United Kingdom is further distinguishable on the basis that while Murray remained silent from the moment of his arrest, the applicant gave evidence at trial. He submits that it is clear from the judgment of the Court in John Murray v. United Kingdom (paras. 55-56) that the decision of the Court may well have been different if, as in the present case, the accused had given evidence and an inference had been drawn under Article 3. b. Lack of access to legal advice As regards inferences drawn from the applicant's silence in the absence of a solicitor, the Government submit that the absence of a solicitor does not per se lead to the conclusion that there has been a violation of the Convention. Rather, each case must be judged on its own facts to determine whether the lack of consultation with a solicitor in fact rendered the proceedings as a whole unfair. They claim that in this case the absence of a solicitor did not lead to unfairness because if it had in fact caused unfairness, that would have been taken into account by the court when it exercised its discretion. In particular, had the applicant, having consulted a solicitor then mentioned facts later relied on, in the Government's submission, it would have been inconceivable that the court would have drawn any adverse inferences under Article 3. Further, they submit that the applicant's attitude throughout his interviews was to completely refuse to answer any question put to him and that remained the case even after he had consulted his solicitor. The Government refer to the finding of the judge that since by the 1990 interviews the applicant knew the nature of the case against him, it would have been the "easiest thing in the world" for the applicant to mention the facts that he subsequently relied on. Equally, he knew the possible consequences of not mentioning them. The applicant claims that it was particularly important in his case that he receive advice prior to being interviewed since he had already been discharged by order of the Court on identical charges before the 1988 Criminal Evidence Order was introduced. He was given no advice prior to the administration of the Article 3 caution and he was interviewed in breach of the domestic requirement that a person who asks for legal advice cannot be interviewed until he has received it. Further, there was no audio or video recording of the interviews and no independent authentification of what was said. He claims that the questioning after the second arrest was clearly aimed at attempting to trigger the 1988 Criminal Evidence Order rather than the police expecting any break through during a new period of questioning. He submits that in the circumstances of the case (the applicant had been rearrested on the same charges as those for which he had been discharged by a court order subsequent to which the Criminal Evidence Order had come into force), the applicant was in particular need of legal advice prior to the administration of the Article 3 caution and the relevant police interviews. He further submits that having regard to the judgment of the Court in John Murray v. United Kingdom (paras. 59-70), the facts of this case likewise disclose a violation of Article 6 para. 1 in conjunction with para. 3(c) (Art. 6-1+6-3-c), particularly since adverse inferences were drawn from his silence during police questioning and he was questioned in breach of international and applicable domestic standards. He recalls that he was held incommunicado, and that the interviews were not subject to any audio or video recording so that the only notes of the interviews are the police notes such that there is no independent, verifiable or reliable records of the manner in which the police interviews were conducted. c. Concerning the admission of witness statements Although the Government accept that the O'Hagans were "witnesses" for the purposes of Article 6 para. 3(d) (Art. 6-3-d) of the Convention, they submit that the proceedings taken as a whole were not rendered unfair by the inability of the applicant to cross-examine those witnesses, who did not give evidence due to fear for their safety. The Government submit that the safeguards contained in Articles 3, 5 and 6 (Art. 3, 5, 6) of the Criminal Justice Order are extensive and are designed, in summary, to strike a fair and proper balance between the public interest in having before the court all relevant evidence and the public interest in ensuring fairness to an accused. They emphasise the fact that when assessing whether it is in the interests of justice to admit a statement, the court is under a duty to consider the possibility of unfairness to the accused, and in particular whether it is likely to be possible to controvert the statement if the maker of the statement does not give oral evidence. Thus, the Government submit, the issues that the domestic court is bound to consider are very similar, if not identical, to the issues that arise under the Convention and were considered by the European Court of Human Rights in a series of judgments, including Artner v. Austria (Eur. Court HR judgment of 28 August 1992, Series A no. 242-A), the facts of which are analogous to the facts in the present case. They submit that in this case the trial judge considered this issue and concluded that it would be in the interests of justice to admit the statements of the O'Hagans and that no unfairness to the accused would result from their admission. The Court of Appeal reviewed the judge's decision and came to the same conclusion. As regards the statements themselves, the Government refer to the fact that they were taken very shortly after the shooting incident, that they were internally consistent and that the witnesses themselves had no conceivable motive for making up the facts contained therein. The evidence provided by the statements was not identification evidence against the applicant, such that the opportunity to test it by cross- examination might well be a matter of great importance. They submit that here the evidence provided by the statements merely provided the link between the Peugeot car, the balaclavas and the shooting incident. The only possible way of challenging the evidence would have been to claim that the witnesses had fabricated their entire account, which was never suggested by the defence. Thus the evidence was not evidence that needed to be tested by oral examination. As such its admission did not render the trial unfair. The applicant submits that the rights of the defence were significantly and substantially impaired by the fact that the defence was not able to cross-examine the O'Hagans. He submits that it is not correct to assert that the evidence of the O'Hagans was not of crucial importance or of a controversial nature. He refers to the statement of the Government in their observations that "it provided the link" without which a conviction could not have been sustained and notes that on 29 September 1988, prior to the Criminal Justice Order coming into force, the evidence was not admissible and the applicant was therefore discharged for lack of evidence against him. He avers that in the circumstances it was vitally important that the witnesses be subjected to extensive and rigorous cross-examination. Further, the applicant claims that it is not proper for the Government to assert that the O'Hagans had no conceivable motive for imagining or inventing a story in circumstances where the defence had no opportunity to examine their motivation, reliability or truthfulness by cross-examination. The Commission considers, in the light of the parties' submissions, that the above complaints raise complex issues of law and fact under the Convention, the determination of which should depend on an examination of the merits. 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 the rules permitting the admission of the witness statements came into force after the alleged crimes took place and that the prosecution's reliance thereon was contrary to Article 6 para. 1 (Art. 6-1) and Article 7 (Art. 7) of the Convention. The latter provision reads as follows. "1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed. 2. This Article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations." The Commission recalls that the applicant was convicted on two counts of attempted murder and on a single count of possession of firearms and ammunition with intent. The adoption of the Criminal Justice Order and the 1988 Criminal Evidence Order did not alter the elements of those criminal offences, that were contrary to the law at the time the relevant acts were committed. Rather, the Criminal Justice Order merely changed the rules relating to the admission of evidence to prove the commission of the criminal offences. The Commission recalls that Article 7 (Art. 7) is concerned with the retrospective creation of criminal offences and not with the retrospective application of rules of evidence, as is complained about here. As such Article 7 (Art. 7) is inapplicable to the circumstances of this case. Insofar as the complaint relates to fairness of the retrospective application of the 1988 Criminal Evidence Order and the Criminal Justice Order within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention, the Commission considers that the retrospective application of rules of evidence will not per se give rise to an issue of fairness under Article 6 (Art. 6) of the Convention; rather the proceedings as a whole will need to be examined to determine whether the trial was "fair" within the meaning of Article 6 (Art. 6). The Commission is of the view that the retrospective nature of the 1988 Criminal Evidence Order and of the Criminal Justice Order did not itself deprive the applicant of the right to a fair trial under Article 6 para. 1 (Art. 6-1). It follows that this part of the complaint must be dismissed as manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. For these reasons, the Commission, unanimously, DECLARES ADMISSIBLE without prejudging the merits, the applicant's complaints relating to the inferences drawn from his silence under police questioning, lack of access to legal advice and the admission of witness statements, when the witnesses could not be cross-examined by the applicant; DECLARES INADMISSIBLE the remainder of the application. Secretary to the Commission President of the Commission H.C. KRÜGER S. TRECHSEL Secretary President to the Commission of the Commission
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