Communicated on 4 March 2014
FOURTH SECTION
Application no. 52334/13
Eric WRIGHT and James BROWN
against the United Kingdom
lodged on 31 July 2013
STATEMENT OF FACTS
The applicants, Mr Eric Wright and Mr James Brown, are Irish nationals who were born in 1960 and live in Londonderry. They are represented before the Court by Mr P. Macdermott of Macdermott, McGurk & Partners Solicitors, a lawyer practising in Londonderry.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
1. The applicants’ arrest and police interviews
The first applicant was arrested by the army at 07.25 on 1 January 1977 in relation to two attacks on army patrols in Londonderry. He was handed over to the police at 10.15 and he was visited by his father and examined by a police surgeon shortly thereafter. No injuries or complaints were noted.
From 12.02 to 12.57 the first applicant was interviewed by two detectives. During this interview he admitted that he was a member of Fianna na h’Eireann, a proscribed Republican organisation, and had acted as a lookout during the two attacks. In the course of his second interview, which took place between 14.45 and 17.12 the same day, he allegedly signed a statement admitting membership of a proscribed organisation; again admitted to acting as a lookout during the two attacks; and sketched the area showing where he and others had been situated during the attacks. His father had been admitted to the interview room at 16.51 and shown the statements of admission.
That evening the first applicant was again medically examined and no complaints or injuries were noted.
The second applicant was arrested by the army at 20.55 on 7 December 1976 in relation to the same two attacks on army patrols. He was transferred to police custody at 00.40 on 8 December 1976. During his first interview, which took place between 00.40 and 01.15, he admitted to being a member of Fianna na h’Eireann. He was medically examined at 01.40 and no complaints or injuries were noted. He was again interviewed under caution between 09.15 and 10.30 and during this interview he confirmed that he was a member of a proscribed organisation and to being a lookout during one of the attacks. He further indicated the location of this incident by reference to a map.
The second applicant was visited by a relative at 10.30. He was interviewed again from 11.50 to 13.00, and from 15.00 onward. During the second of these interviews he made a written confession in which he admitted to acting as a lookout during both attacks and carrying shotgun cartridges across the border into the Republic of Ireland.
At 19.30 on 8 December 1976 the second applicant was visited by his parents, who declined to countersign his confessions. He was medically examined on the evening of 9 December 1976 and again on the morning of 10 December. On both occasions he denied any ill-treatment and no relevant sign of injury was detected.
2. The applicants’ trial
The applicants’ trial took place from 15 to 18 December 1977. The first applicant was charged with a count of membership of a proscribed organization, two counts of conspiring to communicate information likely to be of use to terrorists, one count of causing grievous bodily harm and one of attempting to cause grievous bodily harm. He entered “not guilty” pleas to all counts. However, he was found to be guilty as charged and sentenced to ten years’ imprisonment. He did not appeal against conviction and his application for leave to appeal against sentence was dismissed on 17 February 1978.
The second applicant pleaded “guilty” to one count of belonging to a proscribed organization, two counts of conspiracy to communicate prohibited information, one count of unlawful possession of ammunition and one count of possessing ammunition without a licence. He pleaded not guilty to one count of conspiracy to cause an explosion and one count of conspiracy to discharge a firearm. He was found to be guilty as charged and sentenced to a total of ten years’ imprisonment.
3. Reference to the Court of Appeal by the Criminal Cases Review Commission
On 18 October 2011 the applicants’ cases were referred to the Court of Appeal in Northern Ireland by the Criminal Cases Review Commission (“CCRC”) on the grounds that there was a real possibility that the Court of Appeal would consider that the manner in which they were detained and interviewed involved significant breaches of the Judges’ Rules and of other protections which they should have enjoyed (namely, access to a solicitor before or during the police interviews and the presence of a family member or independent adult); that in consequence of those breaches the admissions made were unreliable and/or inadmissible; and that in those circumstances the convictions were unsafe.
Judgment was delivered by the Court of Appeal on 23 May 2012. The court noted that at the time of the applicants’ trial confessions made in breach of the Judges’ Rules were admissible under the emergency provisions legislation unless obtained by torture or inhuman or degrading treatment.
In respect of the first applicant, the court held that although the confessions had been obtained in breach of the Judges’ Rules because he had not had access to a solicitor, independent adult or family member, in light of the statutory background it could not conclude that the admission of the confessions rendered the conviction unsafe. In particular, it noted that the confessions were not contradictory or inaccurate; they were not challenged at trial and the conviction was not appealed. The first applicant’s appeal was therefore dismissed.
The court also found no evidence that the second applicant’s conviction was unsafe. In reaching this conclusion, it noted that he had pleaded “guilty” to most of the offences and had not challenged the admissibility or reliability of his confessions in contesting the two counts to which he pleaded “not guilty”. The appeal was also dismissed.
On 7 September 2012 the Court of Appeal certified that the following point of law of general public importance was involved in the decision which ought to be considered by the Supreme Court:
ʺWhere in a trial conducted in accordance with the then applicable statutory emergency provisions a young person was convicted of an offence on the basis of a confession admitted at the time of trial by virtue of the statutory emergency provisions but in circumstances in which such a confession would otherwise have been excluded as having been obtained in a manner which contravened the Judges’ Rules, the Administrative Directions on Interrogation and the Taking of Statements and the RUC Code and where such confession was obtained in circumstances which did not provide safeguards subsequently and currently considered to be necessary to avoid a miscarriage of justice, does such conviction fall to be considered as unsafe?ʺ
However, the Court of Appeal refused to grant leave to appeal to the Supreme Court.
On 7 February 2013 the Supreme Court also refused permission on the grounds that the application did not raise an arguable point of law which it ought to consider and that there was no real possibility that the court would find the convictions to be unsafe.
B. Relevant domestic law and practice
1. The Criminal Cases Review Commission
Section 10 of the Criminal Appeal Act 1995 provides that:
“Where a person has been convicted of an offence on indictment in Northern Ireland, the Commission—
(a) may at any time refer the conviction to the Court of Appeal, and
... ... ...
(2) A reference under subsection (1) of a person’s conviction shall be treated for all purposes as an appeal by the person under section 1 of the 1980 Act against the conviction.”
2. The legal framework applicable to interrogation in 1976/7
a. Northern Ireland (Emergency Provisions) Act 1973
Section 6 of the 1973 Act provided that:
“(1) In any criminal proceedings for a scheduled offence a statement made by the accused may be given in evidence by the prosecution in so far as it is relevant to any matter in issue in the proceedings and is not excluded by the court in pursuance of subsection (2) below.
(2) If, in any such proceedings where the prosecution proposes to give in evidence a statement made by the accused, prima facie evidence is adduced that the accused was subjected to torture or to inhuman or degrading treatment in order to induce him to make the statement, the court shall, unless the prosecution satisfies them that the statement was not so obtained, exclude the statement or, if it has been received in evidence, shall either continue the trial disregarding the statement or direct that the trial shall be restarted before a differently constituted court (before whom the statement in question shall be inadmissible).”
b. Judges’ Rules
A note preceding the Judges’ Rules indicated they did not affect the principles: -
“(c) That every person at any stage of an investigation should be able to communicate and to consult privately with a solicitor. This is so even though he is in custody provided that in such a case no unreasonable delay or hindrance is caused to the processes of investigation or the administration of justice by his doing so.
... ... ...
(e) That it is a fundamental condition of the admissibility in evidence against any person, equally of any oral answer given by that person to a question put by a police officer and of any statement made by that person, that it shall have been voluntary.
The principle set out in paragraph (e) above is overriding and applicable in all cases. Within that principle the following Rules are put forward as a guide to police officers conducting investigations. Non-conformity with these Rules may render answers and statements liable to be excluded from evidence in subsequent criminal proceedings.”
c. Administrative Directions on Interrogation and the Taking of Statements
The Administrative Directions accompanied the Judges’ Rules and at paragraph 4 included a direction headed “Interrogation of Children and Young Persons” which indicated that as far as practical such persons should only be interviewed in the presence of a parent or guardian or, if that was not possible, a person who was not a police officer and was of the same sex as the child. Home Office guidance indicated that this requirement should be seen as applying to anyone under the age of seventeen.
Pursuant to paragraph 7(a), a person in custody should be allowed to speak on the telephone to his solicitor or to his friends provided that no hindrance was reasonably likely to be caused to the process of investigation or to the administration of justice.
d. Royal Ulster Constabulary Code
The police code applicable at the relevant time provided that:
“Police pursuing inquiries involving children and young persons must bear in mind that where at all possible children and young persons should be interviewed in the presence of a parent/guardian or other adult friend, and that the venue selected for the interview should not be one which could be calculated to intimidate, unduly embarrass or frighten the person interviewed.”
3. Cadder v. HM Advocate [2010] UKSC 43
Peter Cadder was detained in May 2007 following an incident in which two men had been attacked by a group of youths. He was taken to a police station and interviewed, under caution but without the presence of a lawyer, by two police officers. During the interview he made a number of admissions with regard to the offences with which he was later charged. He was then arrested, cautioned and charged with assault and breach of the peace. At trial the audio tape recording of his police interview was played in full to the jury and they were given copies of the transcript. On 29 May 2009 he was convicted on all charges. He appealed against conviction inter alia on the ground that his interview had been relied on at trial. His appeals to the Appeal Court were refused on the papers at the first and second sift stages. He then submitted an application for special leave to appeal to the Supreme Court.
On 26 October 2010 the Supreme Court unanimously found that: (i) McLean had been incorrectly decided by the Appeal Court; (ii) Cadder’s case should be remitted to the Appeal Court for further consideration; and (iii) its ruling should not apply retroactively.
On the first issue, Lord Hope found that the Appeal Court had erred in its interpretation of Salduz. The Grand Chamber’s judgment was to be understood as laying down two statements of principle: that access to a lawyer should be provided as from the first interrogation of suspect; and that the rights of the defence would be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer were used for a conviction. There was room for a certain flexibility in the application of these requirements but they did not permit a systematic departure from it, which was what had occurred under the 1995 Act. As to whether Salduz should be followed, Lord Hope noted that the judgment had been given by a unanimous Grand Chamber, it had been repeatedly followed in subsequent cases and was now firmly established in the jurisprudence of this Court. Lord Hope also observed that the majority of those Contracting States which prior to Salduz did not afford a right of legal representation at interview (Belgium, France, the Netherlands and Ireland) had recognised that their legal systems were, in that respect, inadequate (see the decision of the Supreme Court of the Netherlands LJN Bh3079, 30 June 2009; decision no. 2010-14/22 QPC, 30 July 2010 of the Conseil Constitutionnel; and the Court of Cassation’s judgments no. 5699, 5700 and 5701, 19 October 2010). If Scotland were not to follow the example of others it would be alone in not doing so, and would find no support in England and Wales or Northern Ireland, both of which jurisdictions allowed the right of access to a lawyer.
For Lord Hope there was also no room for finding that the guarantees otherwise available under the Scottish system were sufficient to secure a fair trial. Those guarantees were commendable but were, in truth, incapable of removing the disadvantage that a detainee would suffer if, not having access to a solicitor for advice before he was questioned by police, he made incriminating admissions or said something which enabled the police to obtain incriminating evidence from other sources which was then used against him at his trial.
Lord Rodger, concurring in judgment, stated that the many other safeguards which existed in Scots law for accused persons, and which the Appeal Court had relied upon, were “beside the point”. This Court’s reasoning in Salduz was based on the implied right of an accused person not to incriminate himself. This being so, the only safeguards in Scots law which could be relevant would be those which were designed to protect that right. The safeguards relied on by the Appeal Court, though admirable and going further than some other systems, could not, and did not, protect that right. Instead, it was clear from the recommendations of the Thomson Committee that the purpose of sections 14 and 15 of the 1995 Act was intended to give the police and prosecution an enhanced possibility of obtained incriminating admissions from the suspect which could then be deployed in evidence at his trial. The procedure provided for in those sections was, therefore, the very converse of what the Grand Chamber held to be required in Salduz. For this reason, in Lord Rodger’s view, there was “not the remotest chance” that this Court would find that, because of the other protections Scots law provided for accused persons, the Scottish system was compatible with Articles 6 §§ 1 and 3(c).
On the second issue, both Lord Hope and Lord Rodger declined simply to quash Cadder’s conviction. Lord Hope found that such a course would only be appropriate if it was clear that there was insufficient evidence for a conviction without the evidence of the police interview or that, taking all the circumstances of the trial into account, there was a real possibility that the jury would have arrived at a different verdict had they not had that evidence before them (per Lord Hope at paragraph 64).
On the third issue, the effect of the Supreme Court’s ruling, both Lord Hope and Lord Rodger (with whom the other Justices agreed) held that, in the interests of legal certainty, the ruling should not permit the re‑opening of closed cases, but rather only apply to cases which had not yet gone to trial, to cases where the trial was still in progress and to appeals that had been brought timeously. For all closed cases it was a matter for the Scottish Criminal Cases Review Commission to decide whether the cases should be referred back to the Appeal Court and for that court to decide what course it ought to take if a reference were to be made to it by the Commission.
4. “Post-Cadder” case-law
The Appeal Court considered the proper approach to sections 194DA(1) and (2) in two references made by the Commission in M [R.M.M.] v. HM Advocate [2012] HCJAC 121. Each of the two references concerned cases of sexual offences where the prosecution had at trial relied on statements made by the accused in police interrogations when they had not had access to solicitors before questioning. In allowing the references to proceed the Appeal Court stated:
“An independent body specifically entrusted with considering cases of possible miscarriages of justice has decided that it is in the interests of justice that it should make these references (1995 Act, s 194C(1)). In making that decision the Commission has considered the interests of finality and certainty (s 194C(2)). Although this court has been given the power to reject a reference in language that replicates the provision applicable to the Commission (s 194DA(1), (2)), it cannot be right for us simply to duplicate the Commission’s function and give effect to our own view. In light of the impressive record of the Commission, it is unlikely that we will have cause to differ from its judgment on this point. I think that we are entitled to assume, unless the contrary is apparent, that the Commission has considered the criteria set out in section 194C and has duly made its independent and informed judgment on them. In my view, we should reject a reference only where the Commission has demonstrably failed in its task; for example, by failing to apply the statutory test at all; by ignoring relevant factors; by considering irrelevant factors; by giving inadequate reasons, or by making a decision that is perverse.”
When R.M.M.’s case later came before the Appeal Court for consideration of whether the conviction should be quashed (R.M.M. v. HM Advocate [2012] HCJAC 157), it was accepted by the Crown that the leading of the evidence of the interviews conducted by the police was in breach of Article 6 and that, on that account, the evidence was inadmissible. The issue was whether, without the evidence, there would have been insufficient evidence for a conviction or that, taking all the circumstances of the trial into account, there was a real possibility that the jury would have arrived at a different verdict had they had the interview evidence before them (see Lord Hope’s observations in Cadder).
The Appeal Court went on to observe that, in a case such as R.M.M.’s, the appropriate starting point was an examination of the role which the evidence of the questioning of the accused played in the prosecution case, and a useful starting point in that examination might well be the extent to which that evidence was invoked in the prosecutor’s address to the jury at the conclusion of the trial. Having examined the transcript of that address, the court concluded that the police interview were clearly presented to the jury as being of major importance to the Crown case. The centrality and importance of those interviews led the court to conclude that there was a realistic possibility that, had the interviews not been before the jury, the jury might have returned a different verdict. For this reason, the Appeal Court quashed the conviction.
In Mark Chamberlain-Davidson, the Commission referred a conviction for assault with intent to rape. However, it did so on grounds other than Cadder, finding that, while the “Cadder principle” had been breached (and, in the absence of the appellant’s police interviews, an acquittal would have been inevitable), it was not in the interests of justice to refer the case to the Appeal Court. It reasoned that the appellant had served his prison sentence of eighteen months and, at trial, had relied on the police interviews as part of his defence.
Applying R.M.M., the Appeal Court accepted the reference ([2012] HCJAC 120) and, notwithstanding the view of the Commission, then gave the appellant leave to lodge an additional ground of appeal based on Cadder ([2012] HCJAC 122). Having heard submissions, it then quashed the conviction finding that, without the interviews, there was insufficient evidence for conviction ([2013] HCJAC 54).
COMPLAINT
The applicants complain that their lack of access to a solicitor during the police interviews violated Article 6 § 3(c) of the Convention in conjunction with Article 6 § 1.
QUESTION TO THE PARTIES
Has there been a violation of Article 6 § 3 (c) of the Convention in conjunction with Article 6 § 1, on account of the lack of legal assistance to the applicants while they were in police custody and the reliance by the prosecution on the evidence obtained during their police interviews (Salduz v. Turkey [GC], no. 36391/02, ECHR 2008; Cadder v. HM Advocate [2010] UKSC 43)?
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