TOMLINSON v. THE UNITED KINGDOM

THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 42456/98
by Isiah TOMLINSON
against the United Kingdom

The European Court of Human Rights (Third Section), sitting on 28 August 2001 as a Chamber composed of

MrJ.-P. Costa, President,
MrW. Fuhrmann,
MrL. Loucaides,
SirNicolas Bratza,
MrsH.S. Greve,
MrK. Traja,
MrM. Ugrekhelidze, judges,
and Mr T.L. Early, Deputy Section Registrar,

Having regard to the above application introduced with the European Commission of Human Rights on 24 April 1998 and registered on 28 July 1998,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant as well as to the parties’ further submissions,

Having deliberated, decides as follows:

THE FACTS

The applicant is a British national, born in Jamaica in 1956. He is currently serving a life sentence in the United Kingdom. He is represented before the Court by Mr D. Simpson, a solicitor practising in Sheffield, England.

A.  The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

On 27 January 1997 the applicant was tried before a jury at Sheffield Crown Court on a charge of murder. According to the prosecution case, on 17 July 1996 the applicant deliberately mounted a pavement and drove his car at a pedestrian (“M.”), striking him. M. died on 4 August 1996 of his injuries.

The applicant maintained that M. had without provocation attacked and beaten him shortly before the incident. A few minutes later, still dazed by the attack, he was driving his car along a street and saw M. throw or appear to throw a brick or similar missile at his vehicle. The applicant was forced to duck down with the result that he lost control of the car. When he regained control of the car he realised that he had hit something and that the car had been damaged. The windscreen and roof pillar (which M. had hit) were badly broken. He did not stop and drove to a garage where he left the car to be repaired. He was planning to collect the car the same day. Instead, as it turned out, it was collected by the police.

The applicant later informed his girlfriend that M. had gone to throw a brick at him and that he had ducked, swerved and hit M. He telephoned the police and inquired about M.’s condition and whether he would obtain bail. The prosecution made a formal admission that the day after the incident the applicant’s girlfriend had told a police officer that within a very short time after the incident the applicant had given her this account.

On 18 July 1996 the applicant went to a police station unaccompanied by a solicitor. He was arrested, charged with attempted murder and cautioned. He told the police that M. had beaten him for no reason and had thrown bricks at him. He stated repeatedly that he was sorry for what had happened and inquired about M.’s condition. The prosecution accepted that the applicant made this statement to the police. The applicant did not say however that he had ducked and that the collision had been an accident. Shortly afterwards a representative of his solicitors arrived at the police station and advised the applicant to remain silent during the police interviews on the ground that there had been inadequate disclosure of the police case against the applicant. The applicant maintains that during the time he spent in custody at the police station on 18 and 19 July 1996 he wished to answer police questions but accepted the firm advice of his representative to remain silent.

Before each interview the applicant was cautioned in the following terms:

“You do not have to say anything but it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you say may be given in evidence.”

On each occasion the applicant acknowledged that he understood the meaning of the caution. The applicant’s solicitor was present throughout the interviews and had private consultations with him on a number of occasions.

The applicant was asked numerous questions about the incident on 17 July 1996 and his involvement, if any, in it. He was asked, inter alia, about the conversation he had earlier in the day with the police officer; his acquaintance with M. and the fight they had had; the evidence of the two eyewitnesses; whether the collision was an accident and the applicant’s earlier explanations to his girlfriend.

The applicant refused to comment.

On 14 August 1996 the police again interviewed the applicant under caution and in the presence of his solicitor. On this occasion the applicant answered fully the questions put to him. His account of the incident was that he believed M. to be throwing an object at his car, he ducked, lost control of the vehicle and hit M. by accident. The applicant stated that he then panicked and did not stop at the scene. At one point in the first interview the applicant said that he did not know that he had hit M. until told by the police in that very interview. The applicant was also asked why he had swerved towards, rather than away from, a person whom he said was threatening him with a missile.

Since M. had died in the meantime the applicant’s charge was changed to one of murder.

At the trial two eyewitnesses gave evidence for the prosecution. Both witnesses testified that they saw the applicant’s car hit M. and drive off without hesitating or attempting to stop. One of the witnesses stated that he saw the car smoothly mount the pavement to the full extent possible so that it was more on the pavement than on the road. It drove straight at M. and hit him from behind as he walking along the pavement away from it. The car’s speed was a constant 30-40 miles per hour but it may have speeded up a little before hitting M. Neither witness had seen M. throwing a missile at the car.

A pathologist testified that the bruising to the deceased’s calves indicated that he had been struck from behind. He also conceded that bruising was consistent with M. walking or “turning in some way”.

In his evidence to the court, the applicant stated that he had not stopped at the scene of the incident because he had been afraid of M. and because he, therefore, panicked. After the collision he went to see his girlfriend and told her that he had “hit” M. after he received a telephone call there saying that M. was in hospital. The applicant strongly disagreed with the pathologist’s evidence. He insisted that M. had been facing the car throwing or appearing to throw a missile. The applicant confirmed the accuracy of the conversation he had with the police officer on 18 July 1996 before the interview.

The applicant testified that he had not answered the questions put to him during the police interview on 18 and 19 July 1996 because his solicitor had advised him not to.

The applicant waived legal professional privilege and his solicitor gave evidence. The solicitor testified that in private early on 18 July 1996 the applicant had given the same account of an accident as he had given to his girlfriend. The solicitor, however, advised the applicant not to answer any questions because he was not satisfied with the extent of disclosure by the police. After further disclosure, he changed this advice and the applicant answered police questions.

The passenger who was in the applicant’s car at the time of the incident testified on the applicant’s behalf, supporting his account.

Following a ruling by the trial judge on the voir dire the prosecution in their closing speech to the jury was allowed to invite the jury to draw inferences from the applicant’s silence when interviewed by the police on 18 and 19 July 1996. Counsel for the prosecution indicated that:

“A proper inference to draw from his failure to say in the first formal interviews these things, is that this was not an accident at all, and that the idea of saying that it was an accident came to him later, and is designed to mislead you.”

In his summing up to the jury the trial judge directed the jury that the law permitted it to draw such inferences as appeared proper from the applicant’s failure to mention at the police interview on 18 and 19 July 1996 the facts he subsequently relied on in his defence. He stressed however that it was not obliged to hold the applicant’s failure to reply to police questions at that interview against him and that his silence could not alone amount to proof of guilt. The judge continued:

“Now, in deciding whether to draw inferences adverse to the accused ... you must have regard to a number of factors. For instance, the times of the day when he was being interviewed; his age and his experience of life; his apparent mental capacity; his state of health... You have to bear in mind the legal advice he was given...

... You must, as best you can, judge the condition and capacity of this particular [applicant] on the particular occasion of these first formal interviews, and take into account any evidence that is before you as to his qualities, knowledge and fears, and whatever advice he was receiving at the time.”

The judge directed the jury that:

“The weight of any adverse inference which you are invited to draw in this case, may well be diminished by the evidence of things said by the [applicant] before the process of interviewing began and before he received his solicitor’s representative’s advice. Such things will be factors for you to consider in deciding what inferences, if any, should be drawn from his failure to mention these particular matters in the first round of formal interviews.”

The judge reminded the jury of what the applicant had related to his girlfriend on the day of the incident and the similarity between that account and his subsequent account to the police on 14 August 1996. The jury was advised that this did not necessarily mean that that the account was true. The trial judge stressed that it was the same account which the applicant gave in due course to the police and at the trial. He explained that this factor undermined the prosecution’s suggestion that the applicant had fabricated the account at a later stage and the invitation to the jury to draw an adverse inference from the applicant’s silence during the first round of interviews.

The judge also addressed the fact that the applicant remained silent on the advice of his legal representative. He stated:

“Now, you are entitled to draw inferences from his refusal to answer questions in the first two interviews, but whether it is right to do so is for you to judge, and you may think ... that since the same account was apparently being given in detail before he was interviewed to [the applicant’s girlfriend] and, it was being suggested ... before interview to [a police officer] and it was then given in detail on 14 August to the police ... you may think ... that the reason why he did not say it to the police on 18 and 19 July was that he was advised not to say anything by the solicitor. If that advice of the solicitor was bad advice ... you do not hold it against this [applicant], and if you have any doubt about this question of whether it is right to hold the matter against the [applicant], then if you have any doubt about it, you resolve any such doubt in his favour rather than against him.”

On 3 February 1997 the applicant, by a unanimous verdict, was found guilty of murder. The applicant was sentenced to life imprisonment.

On 13 May 1997 the applicant’s application for leave to appeal against his conviction was refused by a Single Judge. The Single Judge stated:

“The [trial judge’s] direction cannot be faulted. The fact that you were advised not to say anything by your solicitor (whether that advice was good or bad) is not an automatic reason for forbidding a jury to draw any inference from your silence. It is merely one of the circumstances – a powerful one – for the jury to take into account. In fact when the [trial judge] came to direct the jury he practically told them not to hold your silence against you; and in view of the fact that you had given your account of it being an accident to your solicitor and to [your girlfriend] before being interviewed, it is virtually inconceivable that they did.”

The applicant renewed his application for leave to appeal before the Court of Appeal. In the grounds of appeal reference was made, inter alia, to the fact that the judge had erred in allowing the jury to draw inferences from the applicant’s silence at the police interviews on 18 and 19 July 1996. However before the Court of Appeal the applicant’s counsel stated that he could not support either that ground of appeal or indeed the other grounds prepared by the applicant’s trial solicitor. Mr Justice Owen in the Court of Appeal observed that the grounds of appeal prepared by the applicant’s trial solicitor would not have been sufficient to ground a successful appeal and that he was not surprised that the Single Judge had refused leave to appeal. The applicant’s counsel pleaded the application for leave to appeal on the ground that the jury were not directed on the issue of provocation. On 28 October 1997, following argument on that ground alone, the Court of Appeal refused the applicant’s application for leave to appeal.

B.  Relevant domestic law and practice

1.  Criminal Justice and Public Order Act 1994

Section 34 of the Criminal Justice and Public Order Act 1994 provides that:

“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 under caution by a constable trying to discover whether or by whom the offence had been committed, failed to mention any fact relied on in his defence in those proceedings; or

(b)  ... 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, subsection (2) below applies.

2.  Where this subsection applies ...

(c)  the court, in determining whether there is a case to answer; and

(d)  the court or jury, in determining whether the accused is guilty of the offence charged, may draw such inferences from the failure as appear proper.

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.”

Section 35 (2) and (3) provides:

“(2)  Where this subsection applies, the court shall, at the conclusion of the evidence for the prosecution, satisfy itself (in the case of proceedings on indictment, in the presence of the jury) that the accused is aware that the stage has been reached at which evidence can be given for the defence and that he can, if he wishes, give evidence and that, if he chooses not to give evidence, or having been sworn, without good cause refuses to answer any question, it will be permissible for the court or jury to draw such inferences as appear proper from his failure to give evidence or his refusal, without good cause, to answer any question.

(3)  Where this subsection applies, the court or jury, in determining whether the accused is guilty of the offence charged, may draw such inferences as appear proper from the failure of the accused to give evidence or his refusal, without good cause, to answer any question.”

Section 38 (3) adds that:

“A person shall not ... be convicted of an offence solely on an inference drawn from such a failure or refusal as is mentioned in section 34(2)...”

Guidance as to the direction which the judge should give the jury in respect of section 35 of the Criminal Justice and Public Order Act 1994 are provided by the Judicial Studies Board specimen directions and by the dicta of Lord Taylor CJ in R. v. Cowan ([1996] 1 Criminal Appeal Reports 1). The relevance of these dicta to directions under section 34 of the same Act was confirmed by the Court of Appeal in R. v. Condron ([1997] 1 Criminal Appeal Reports 185).

The Judicial Studies Board guideline direction at the time of the Court of Appeal’s consideration of the applicant’s appeal provided that:

“If he failed to mention [a fact] ... when he was questioned, decide whether in the circumstances which existed at the time, it was a fact which he could reasonably have been expected then to mention.

The law is that you may draw such inferences as appear proper from his failure to mention it at that time. You do not have to hold it against him. It is for you to decide whether it is proper to do so. Failure to mention such a fact at that time cannot, on its own, prove guilt, but depending on the circumstances, you may hold that failure against him when deciding whether he is guilty, that is, take into account as some additional support for the prosecution’s case. It is for you to decide whether it is fair to do so.”

The dicta of Lord Taylor CJ are as follows:

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

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

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

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

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

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

The current specimen direction for section 34, up-dated in May 1999 in the light of the judgments of the Court of Appeal in R. v. Argent ([1997] Criminal Appeal Reports 27) and in the instant case, provides:

“[When arrested, and at the beginning of each interview] this defendant was cautioned, he was told that he need not say anything, but that it may harm his defence if he did not mention something when questioned which he later relied on in court. Anything he did say may be given in evidence.

The defendant as part of his defence has relied upon [...] (here specify precisely the fact(s) to which this direction applies). But [the prosecution case is] [he admits] that he did not mention this [when he was questioned before being charged with the offence] [when he was charged with the offence] [when he was officially informed that he might be prosecuted for the offence].

The prosecution case is that in the circumstances, and having regard to the warning which he has been given, if this fact had been true, he could reasonably have been expected to mention it at that stage, and as he did not do so you may therefore conclude that [it has since been invented/tailored to fit the prosecution case/he believed that it would not then stand up to scrutiny].

If you are sure that he did fail to mention [...] when he was [charged] [questioned] [informed], it is for you decide whether in the circumstances it was something which he could reasonably have been expected to mention at that time. If it was, the law is that you may draw such inferences as appear proper from his failure to do so.

Failure to mention [...] cannot, on its own, prove guilt. But, if you are sure that quite regardless of this failure, there is a case for him to meet, it is something which you are entitled to take into account when deciding whether his evidence about this matter is true, i.e. you may take it into account as some additional support for the prosecution’s case. You are not bound to do so. It is for you to decide whether it is fair to do so.

[There is evidence before you on the basis of which the defendant’s advocate invites you not to hold it against him that he failed to mention this fact when he had the opportunity to do so. That evidence is [...]. If you think this amounts to a reason why you should not hold the defendant’s failure against him, do not do so. On the other hand, if it does not in your judgment provide an adequate explanation, and you are sure that the real reason for his failure to mention this fact was that he then had no innocent explanation to offer in relation to this aspect of the case, you may hold it against him.]”

In R. v. Argent the Court of Appeal confirmed that legal advice is one circumstance to be taken into account by the jury. The Court of Appeal explained six conditions that had to be met before section 34 of the 1994 could allow inferences to be drawn. As regards the sixth condition, Lord Bingham CJ stated:

“The sixth condition is that the appellant failed to mention a fact which in the circumstances existing at the time the accused could be reasonably have been expected to mention when questioned. The time referred to is the time of questioning, and account must be taken of all the relevant circumstances existing at the time. The courts should not construe the expression ‘in the circumstances’ restrictively: matters such as the time of day, the defendant’s age, experience, mental capacity, state of health, sobriety, tiredness, knowledge, personality and legal advice are all part of the relevant circumstances; and those are only examples of things which may be relevant ...

Like so many other questions in criminal trials this is a question to be resolved by the jury in the exercise of their collective common-sense, experience and understanding of human nature. Sometimes they may conclude that it was reasonable for the defendant to have held his peace for a host of reasons, such as he was ... worried at committing himself without legal advice, acting on legal advice, or some other reason accepted by the jury.”

In R. v. Roble ([1997] Criminal Law Reports 449) the Court of Appeal stressed the defendant’s right to reveal to the jury not only the fact that he remained silent on legal advice but also his right to adduce evidence before the jury (by way of oral evidence from the defendant himself and / or the solicitor who gave the advice) about the contents of the advice, that is the reasons why he was so advised.

The approach in R. v. Roble was confirmed in the later cases of R. v. Daniel ([1998] 2 Criminal Appeal Reports 373), R. v. Bowden ([1999] 1 Weekly Law Reports 823), and R. v. Fitzgerald (judgment of 6 March 1998, unreported).

In R. v. McGarry ([1999] 1 Criminal Appeal Report 377) the Court of Appeal held that where a trial judge decides, as a matter of law, that no jury could properly conclude that the requirements of section 34 of the 1994 have been satisfied and, therefore, it is not open to the jury to draw an adverse inference under section 34(2), he must specifically direct the jury not to draw any inference. In R. v. Doldur (judgment of 23 November 1999: “The Times”, 7 December 1999) the Court of Appeal (per Lord Justice Auld) stated:

“Acceptance of the truth and accuracy of all or part of the prosecution evidence may or may not amount to sureness of guilt. Something more may be required, which may be provided by an adverse inference from silence if they think it proper to draw one. What is plain is that it is not for the jury to repeat the threshold test of the Judge in ruling whether there is a case to answer on the prosecution evidence if accepted by them. The direction approved in Cowan has a different object. It is to remind the jury that they cannot convict on adverse inferences alone. It is to remind them that they must have evidence, which, in the sense of section 34 inferences, may include defence evidence where called and which, when considered together with any such adverse inference as they think proper to draw, enables them to be sure both of the truth and accuracy of that evidence and, in consequence, guilt.”

The Government submitted in the Condron v. the United Kingdom case (judgment of 2 May 2000, no. 35718/97, to be published in ECHR 2000-V) that the case of R. v. Doldur is authority for the proposition that the jury must be satisfied that the prosecution have established a prima facie case of guilt before inferences may be drawn under section 34 of the 1994 Act.

In R. v. Bowden ([1999] 2 Criminal Appeal Reports 176) the Court of Appeal confirmed that if a defendant seeks to rely on reasons given in the course of an interview by a solicitor for advising his client to remain silent this would constitute a waiver of privilege even if the solicitor was not called to give evidence at the trial.

2.  Criminal Appeal Act 1968 as amended by the Criminal Appeal Act 1995

Section 2(1) of the Criminal Appeal Act 1968, as amended by the Criminal Appeal Act 1995, provides a single, composite ground of appeal against a criminal conviction. It states that the Court of Appeal:

“shall allow an appeal against conviction if it thinks that the conviction is unsafe”.

In R. v. Chalkey and Jeffries ([1998] 2 Criminal Appeal Reports 79) the Court of Appeal recognised that the omission of the word “unsatisfactory” which had been contained in the former section 2 of the 1968 Act had changed the law. A conviction will not be liable to be quashed on account only of procedural irregularity, or abuse of process or a failure of justice to be seen to be done. However in R. v. Mullen ([1999] 2 Criminal Appeal Reports 143), the Court of Appeal held that “unsafe” was to be given a broad meaning, favourable to defendants. The Court of Appeal stated that the terms was not limited to the safety of the conviction itself but encompasses the prior prosecution process. The Court of Appeal should look at all the circumstances of the case including questions of law, abuse of process and questions of evidence and procedure.

COMPLAINTS

The applicant complains that his right to a fair trial guaranteed under Article 6 §§ 1 and 2 of the Convention was violated on account of the trial judge’s decision to leave the jury with the option of drawing adverse inferences from his silence during the first round of police questioning.

The applicant also complained that he had remained silent during the first round of police questioning solely on the strength of legal advice. In these circumstances, it was contrary to Article 6 of the Convention to allow adverse inferences to be drawn from his silence.

THE LAW

The applicant states that he was denied a fair hearing on account of the fact that adverse inferences were drawn from his silence during the police interview on 18 and 19 July 1996. The applicant relies on Article 6 §§ 1 and 2, which provide respectively and to the extent relevant:

“1.  In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing (...)

2.  Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”

In the applicant’s submission, the trial judge should not have allowed the prosecution to invite the jury to infer from his silence in the first round of police interviews that his version of the fatal incident had been concocted at a later stage. In this respect, the applicant stresses that the statements which he made to his girlfriend on the day of the incident and to the police the following day when he surrendered himself were entirely consistent with the account he gave to the police during the second round of questioning. Accordingly, the facts he relied on at trial had been mentioned prior to the relevant interviews and could not therefore have been invented afterwards. Furthermore, the applicant’s legal representative also testified at the trial that the applicant had given him a full account of the events. There could thus be no issue of late fabrication of a defence which surprised the prosecution.

The applicant also states that he remained silent during the first round of police questioning solely on the strength of legal advice. In these circumstances, it was contrary to Article 6 of the Convention to allow adverse inferences to be drawn from his silence.

The Government maintain in reply that Article 6 of the Convention cannot be interpreted as meaning that a jury cannot be made aware of, and allowed to draw adverse inferences from, an accused’s silence during police interview when that accused has intimated answers to a particular question at an earlier stage. In the Government’s submission, the jury should be made aware of both matters. The essential question is the adequacy of the procedural safeguards in place both at the police station and in court. For the Government, such safeguards existed in the instant case.

The Government dispute the applicant’s arguments with reference to the principles stated by the Court in its Condron v. the United Kingdom judgment of 2 May 2000 (no. 35718/97, to be published in ECHR-2000). They observe that, unlike in the Condron case, the Court of Appeal found no fault with the direction given by the trial judge in the instant case. The Government stress that the material direction given to the jury was very much more specific than in the Condron case and complied fully with the necessary safeguards which the Court identified in its Condron judgment. Significantly, before the Court of Appeal the applicant’s counsel withdrew the complaint about the trial judge’s direction which had previously been submitted to the Single Judge.

The applicant maintains in reply that the trial judge failed to direct the jury that they could only draw an adverse inference if satisfied that his silence at the police interview could only sensibly be attributed to him having no answer or none that would stand up to cross-examination. In the applicant’s submission, it was wholly wrong to permit the jury to draw an adverse inference seeing that the only reason for his silence was his solicitor’s advice. It was made clear at the trial that the applicant wished to speak to the police at the first interview but his solicitor advised him not to. The error by the trial judge was compounded when he subsequently in his direction invited the jury not to hold his solicitor’s advice against him if it was “bad advice”. The trial judge did not give appropriate weight to the fact of legal advice and the direction prevented the jury from considering whether there was good reason for such advice.

The applicant further maintains that the direction was silent on the need for the prosecution to establish a prima facie case before an adverse inference could be drawn; nor did it make any reference to the fact that a decision to convict could not be based wholly or mainly on his silence at the police interview. Furthermore, in the applicant’s submission, defects in the trial judge’s direction could not be cured on appeal. Firstly, the Court of Appeal had no means of ascertaining whether or not the applicant’s silence at the first police interview played a significant part in the jury’s decision to convict. Secondly, the Court of Appeal was only concerned with the safety of the conviction and not with the issue of the fairness of the trial.

The Court recalls that in its above-cited Condron judgment (§§ 56-57) it confirmed in line with its earlier John Murray v. the United Kingdom judgment (Reports of Judgments and Decisions 1996-I) that the right to silence is not an absolute right. Accordingly, the fact that a trial judge leaves a jury with the option of drawing an adverse inference from an accused’s silence either, as in the instant case, during police interview, or during his trial, cannot of itself be considered incompatible with the requirements of a fair trial.

The Court further stressed in its Condron judgment that since the right to silence, like the privilege against self-incrimination, lay at the heart of the notion of a fair procedure under Article 6, particular caution was required before a domestic court could invoke an accused’s silence against him. Thus it would be incompatible with the right to silence to base a conviction solely or mainly on the accused’s silence or on a refusal to answer questions or to give evidence himself. Nevertheless, it is obvious that the right cannot and should not prevent that the accused’s silence, in situations which clearly call for an explanation from him, be taken into account in assessing the persuasiveness of the evidence adduced by the prosecution (ibid.).

For the Court, whether the drawing of adverse inferences from an accused’s silence infringes Article 6 is a matter to be determined in the 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 their assessment of the evidence and the degree of compulsion inherent in the situation (ibid.). Of particular relevance are the terms of the trial judge’s direction to the jury on the issue of adverse inferences.

The Court observes at the outset that the applicant initially co-operated with the police in the early stages of the police interview on 18 July 1996. He was cautioned and offered an explanation for his part in the incident which led to the death of M. Following the arrival of his legal representative, the applicant held his silence on the subsequent occasions he was questioned between 18 and 19 July 1996. He was cautioned before the start of each interview. The terms of the caution were clear as to his legal rights and the applicant has not disputed that he understood their meaning, in particular the possible implications of refusing to answer the questions put to him. He was under no compulsion to speak and he could not be exposed to any criminal penalty for holding his silence. With the exception of the early part of the interview, the applicant’s solicitor was present during each of the interrogations to advise him on what served his interests best at that stage of the investigation, namely silence or co-operation. The applicant chose to remain silent on the advice of his solicitor.

It is the applicant’s contention that the issue of his silence at that stage should not have been left to the jury. The Court’s disagrees with that argument. The trial judge exercised the discretionary power given to him under section 34 of the Criminal Justice and Public Order Act 1994 (“the 1994 Act”) to leave the matter to the jury following the parties’ submissions on the voir dire. He was not obliged to do so and the Court finds no reason to question the exercise of his discretion in this respect from the standpoint of Article 6.

The Court’s enquiry must therefore be centred on the manner in which the judge directed the jury and the safeguards which were built into his direction in order to ensure that it struck the appropriate balance between the exercise by the applicant of his right to silence at the police station and the circumstances in which an adverse inference may legitimately be drawn from that silence.

The Court notes that the jury was warned that it was not obliged to hold the applicant’s silence against him and that his silence alone could not amount to guilt. The jury was specifically reminded that it had to take into account, among other factors, the applicant’s explanation for his silence, namely his reliance on his legal representative’s advice. The applicant’s legal representative testified at the trial to the reasons which led him to advise the applicant to hold his silence. In the Court’s opinion, the trial judge could not be said to have invited the jury to make a value judgment on the merits of the advice given, with the option of drawing an adverse inference only if it considered that the applicant had been badly advised. It was clearly pointed out to the jury that it should not draw an adverse inference if satisfied that the applicant’s silence could be explained by his decision to heed his legal representative’s advice.

Accordingly, it cannot be maintained that the terms of the direction to the jury on this point shared the same defect which led the Court to find fault from the standpoint of fairness with the judge’s direction in its Condron judgment (loc. cit., § 61). Unlike the applicants in the Condron case, the jury in the instant case was not left at liberty to draw an adverse inference from the applicant’s silence notwithstanding that it may have been satisfied as to the plausibility of the explanation given by him. Indeed, the trial judge emphasised this matter by warning the jury that any doubts which it had about the applicant’s explanation had to be resolved in the applicant’s favour. The applicant’s claim that the trial judge did not give appropriate weight in his direction to the fact that the applicant acted on legal advice cannot accordingly be sustained.

The Court would further observe that the applicant waived legal professional privilege by calling his legal representative to testify to the content of the advice he had received. In so far as the applicant may be said to allege that he was in effect compelled by force of circumstances to disclose the content of his conversation at the police station with his legal representative, it observes that no issue of fairness under Article 6 arises. The applicant was under no compulsion to reveal the advice given, other than the indirect compulsion to avoid the reason for his silence remaining at the level of a bare explanation. He chose to make it a live issue as part of his defence and for that reason he cannot complain that the scheme of section 34 of the 1994 is such as to override the confidentiality of his discussion with his legal representative (see the above-cited Condron judgment, § 61).

The applicant alleges other shortcomings in the trial judge’s direction to the jury, matters which, it is to be observed, were not taken on appeal even though the applicant’s appeal was lodged after the Court of Appeal’s decision in R. v. Cowan in which Lord Taylor CJ laid down guidelines for the application of section 34 of the 1994 Act. The Court considers that it does not have to examine these alleged deficiencies, having regard to the fact that the trial judge in effect framed his direction in a manner which highlighted the evidential weakness of the applicant’s silence during the police interview. It notes, for example, that he clearly pointed out to the jury that the applicant had, prior to interview, given an account of the incident and that that account was consistent with his testimony at the trial, as confirmed by his legal representative’s own statement to the court. The trial judge then advised the jury that this factor undermined the prosecution’s invitation to draw an adverse inference from his silence.

The Court notes that, in accordance with section 34 of the 1994 Act, it was the function of the jury, properly directed, to decide whether or not to draw an adverse inference from the applicant’s silence. Having regard to the fact that it is impossible to ascertain the weight, if any, given by the jury to the applicant’ silence, it was crucial that the jury was properly directed on this matter. It finds that in the instant case, and bearing in mind the other safeguards in place, the jury’s discretion on this question was confined in a manner which was compatible with the exercise by the applicant of his right to silence at the police station.

It follows that the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

T.L. EarlyJ.-P. Costa
Deputy RegistrarPresident

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