EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 22384/93

Kevin Murray

against

the United Kingdom

REPORT OF THE COMMISSION

(adopted on 2 December 1997)

TABLE OF CONTENTS

page

I. INTRODUCTION

(paras. 1-19) 1

A. The application

(paras. 2-4) 1

B. The proceedings

(paras. 5-14) 1

C. The present Report

(paras. 15-19) 2

II. ESTABLISHMENT OF THE FACTS

(paras. 20-40) 4

A. Particular circumstances of the case

(paras. 20-37) 4

B. Relevant domestic law and practice

(paras. 38-40) 11

III. OPINION OF THE COMMISSION

(paras. 41-83) 15

A. Complaints declared admissible

(para. 41) 15

B. Points at issue

(para. 42) 15

C. As regards Article 6 para. 1 of the Convention

(paras. 43-58) 15

CONCLUSION

(para. 59) 19

D. As regards Article 6 paras. 2 and 3(b) of the

Convention

(paras. 60-61) 19

CONCLUSIONS

(paras. 62-63) 19

E. As regards Article 6 para. 3(c) of the Convention

(paras. 64-69) 20

CONCLUSION

(para. 70)   20

F. As regards Article 14 of the Convention

(paras. 71-73) 20

CONCLUSION

(para. 74) 21

TABLE OF CONTENTS

Page

G. As regards Article 13 of the Convention

(paras. 75-76) 21

CONCLUSION

(para. 77) 21

H. Recapitulation

(paras. 78-83) . . . . . . . . . . . . . . . . . . . . 21

PARTLY DISSENTING AND PARTLY CONCURRING

OPINION OF MR. E. BUSUTTIL 22

PARTLY DISSENTING AND PARTLY CONCURRING

OPINION OF MR. L. LOUCAIDES 23

APPENDIX I: PARTIAL DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION . . . . . . . . . . 24

APPENDIX II: FINAL DECISION OF THE COMMISSION AS TO THE       

ADMISSIBILITY OF THE APPLICATION 38

I. INTRODUCTION

1. The following is an outline of the case as submitted to the European

Commission of Human Rights, and of the procedure before the Commission.

A. The application

2. The applicant is a British citizen born in 1970 and presently detained in

the Maze prison, Northern Ireland. He is represented by Messrs. John Fahy & Co.,

solicitors practising in Belfast.

3. The application is directed against the United Kingdom. The respondent

Government are represented by Mr Martin Eaton, as Agent, from the Foreign and

Commonwealth Office.

4. The case principally concerns the applicant's complaints concerning the

drawing of inferences at his trial from his refusal to answer police questions

and to give evidence in his defence and also denial of access to a solicitor for

48 hours after arrest. The case raises issues under Articles 6 paras. 1, 2 and 3

(b) and (c) of the Convention. The applicant has also invoked Articles 5 para.

3, 13 and 14 of the Convention.

B. The proceedings

5. The application was introduced on 27 April 1993 and registered on 15 July

1993.6. On 11 October 1993, the Commission decided to communicate the application

to the Government inviting them to submit observations on the admissibility and

merits.

7. On 2 March 1994, after two extensions in the time-limit, the Government

submitted their observations. The applicant made no submissions in reply.

8. On 10 October 1994, the Commission decided to declare part of the

application inadmissible and to adjourn the remainder of the application pending

the outcome of the case of John Murray v. the United Kingdom before the European

Court of Human Rights.

9. On 2 March 1996, the Commission decided to invite the parties' additional

observations on the relevance of the John Murray v. the United Kingdom judgment

of 8 February 1996 (Reports 1996-I no. 1).

10. By letter of 10 March 1996, the applicant stated that he would make no

further observations.

11. On 10 May 1996, the Government submitted supplementary observations.

12. On 21 October 1996, the Commission declared the remainder of the

application partially admissible. It invited the parties' submissions on

specific questions.

13. On 15 January 1997, the Government submitted further observations, after

an extension in the time-limit. The applicant made no response.

14. After declaring the case admissible, the Commission, acting in accordance

with Article 28 para. 1 (b) of the Convention, placed itself at the disposal of

the parties with a view to securing a friendly settlement of the case.  In the

light of the parties' reactions, the Commission now finds that there is no basis

on which a friendly settlement can be effected.

C. The present Report

15. The present Report has been drawn up by the Commission in pursuance of

Article 31 of the Convention and after deliberations and votes, the following

members being present:

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

C.L. ROZAKIS

L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

D. ŠVÁBY

G. RESS

A. PERENI?

C. BÃŽRSAN

P. LORENZEN

K. HERNDL

E. BIELI?NAS

E.A. ALKEMA

M. VILA AMIGÓ

Mrs M. HION

MM R. NICOLINI

A. ARABADJIEV

16. The text of the Report was adopted by the Commission on 2 December 1997

and is now transmitted to the Committee of Ministers in accordance with Article

31 para. 2 of the Convention.

17. The purpose of the Report, pursuant to Article 31 para. 1 of the

Convention, is

1) to establish the facts, and

2) to state an opinion as to whether the facts found disclose  a breach

by the State concerned of its obligations under the Convention.

18. The Commission's partial decision on the admissibility of the application

is at Annex I, its final decision on admissibility at Annex II.

19. The full text of the parties' submissions, together with the documents

lodged as exhibits, are held in the archives of the Commission.

II. ESTABLISHMENT OF THE FACTS

A. Particular circumstances of the case

20. On 13 March 1989, at 07.30 hours, W.A., a part-time soldier in the Ulster

Defence Regiment (UDR), was injured after being shot four times by two gunmen

wearing balaclava helmets over their faces.

21. At about 10.45 hours on the same day, the police went to the applicant's

house and asked him to account for his movements since the previous evening. The

applicant stated that he had spent the previous night at a friend's house and

that he had returned to his own house at 09.00 hours that day. When questioned

about certain items of clothing, in particular a pair of jeans which had mud on

them, the applicant explained that he had worn them when out hunting on Saturday

11 March 1989 with his father.

22. At 11.28 hours, the applicant was arrested under section 12 of the

Prevention of Terrorism (Temporary Provisions) Act 1984 in connection with the

shooting of W.A..

23. The applicant was taken to Castlereagh Police Station, where on arrival he

requested to see a solicitor. At 13.30 hours, a Detective Superintendent

authorised a delay in access to a solicitor for 48 hours, pursuant to section 15

of the Northern Ireland (Emergency Provisions) Act 1987.

24. The applicant was cautioned, pursuant to Article 3 of the Criminal

Evidence (Northern Ireland) Order 1988, that a failure to mention any fact that

he later relied on in his defence in court might be treated as supporting the

case against him. He was also cautioned, pursuant to Article 5 of the Criminal

Evidence Order 1988, in respect of adverse inferences which might be drawn from

any failure to account for items of clothing in his possession on which were

marks or substances attributable to participation in the commission of an

offence, and also in respect of fibres found in his hair from a balaclava helmet

allegedly used by one of the gunmen. The applicant remained silent.

25. The applicant saw his solicitor on 15 March 1989 at 11.26 hours. He was

advised to remain silent.

26. On 18 March 1989, the applicant was charged with attempted murder and

possession of a firearm with intent to endanger life. He was subsequently

charged with the wounding of W.A. and possession of a firearm for no lawful

object.

27. The applicant was tried before a judge sitting without a jury from 26 to

28 November 1990.

28. At his trial, the applicant, on the advice of his legal advisers, did not

give evidence.

29. The prosecution case was founded on circumstantial evidence of a forensic

nature linking the applicant with the Vauxhall car allegedly used by the gunmen.

The evidence consisted of the following:

(a) fresh tyre imprints at the entrance to a field just off Ballyskeagh Road,

towards which the gunmen had run, matching those of a Vauxhall Cavalier ("the

car") belonging to P.L.;

(b) behind the driver seat of the car, a sleeve of a black woollen jumper

containing two holes that would have made a balaclava type mask, on which were

found particles that were consistent with having originated from the discharge

of a cartridge;

(c) a thumb print of the applicant on the interior rear view mirror but no

evidence as to when it was made;

(d) oral evidence from P., a prosecution witness, that the applicant had

flagged the Vauxhall car down at about 01.30 hours on 13 March 1989 and had got

into the car to talk to B. for about ten minutes; a written statement by P.

stating that the applicant had not got into the car but had talked to E.L., the

driver, outside the car;

(e) evidence from P. that on Saturday 11 March 1989 the applicant had driven

E.L. and himself to and from a dance in Omagh in the Vauxhall car and had

dropped him at home at 03.00 hours;

(f) evidence from L.L. that he had seen the applicant driving with his brother

E.L. some time in the beginning of March;

(g) evidence from P.L., the owner of the car, that he had seen his son E.L. in

the company of the applicant but had never seen him in the car;

(h) three fibres in the applicant's hair that were microscopically

indistinguishable from the fibres of the balaclava.  Two of the fibres were

further analysed and found to have been made from the same type of acrylic

material as the balaclava.  One of these  was further analysed and found to be

dyed with the same combination of dyestuffs as the fibres of the balaclava.

However, these fibres were found to be indistinguishable from the black fibres

in the waistband and cuffs of an anorak or black cotton coat belonging to the

applicant.  This anorak was found by the police over the back of a chair in the

applicant's house when they visited it on the morning of the crime.  The

forensic expert's conclusion was that "he would not attach particular weight to

that finding";

(i) muddy jeans;

(j) the applicant's front door key in the pocket of the muddy jeans;

(k) evidence from the victim in his statement of evidence and in cross

examination that the gunmen wore matching army type combat trousers (not jeans);

(l) fibres on the applicant's jeans and anorak that were indistinguishable

from that of the balaclava but also matched the black fibres of the waistband

and cuffs of the anorak such that the forensic expert did not consider much

weight could be attached to this finding;

(m) five fibres on the back of the anorak and the blue jeans which matched the

majority coloured fibre components in the Vauxhall's car upholstery.  Two fibres

found on each of the front seats of the car that matched the minority turquoise

component of the waistband of the anorak.  Although neither the particular

Vauxhall car nor the anorak would be a unique source of these fibres, the

forensic expert considered that these two findings taken together strongly

supported the proposition that the anorak and jeans had been in contact with the

front seats of the car.  Although the presence of the small number of fibres

found on the applicant's clothing would be consistent with "fairly recent

contact", the fibres on the front seats of the car that matched the minority

component of the waistband of the anorak could have remained for longer than one

or two days, depending on the usage of the car and the number of people getting

in and out of it.  If the car had been very little used the fibres could

possibly have been on the seats for weeks.  It was feasible that the jeans and

anorak could have come either from contact with the Vauxhall "some time ago" or

alternatively from contact with other car seats containing identical fibres;

(n) the firearms expert found nothing of significance on the firearms swabs

taken from the applicant's anorak, or other clothing taken from him by the

constable.  However, she detected particles consistent with cartridge discharge

residue in the inner surface of the waistband area of the muddy blue jeans.  The

discharge was consistent with secondary transfer rather than primary discharge

residue.  That meant that the particles found came from being in contact with a

source of cartridge discharge residue rather than from initial contact with the

cartridge discharge residue when the gun was fired.  She could not say

positively that the particles actually came from cartridge discharge, but only

that it was more than likely that they did.  She accepted that the particles

might have fallen from the shotgun used by the applicant and his father on

Saturday 11 March when they went shooting, but it was unlikely that the

particles would have been there after 24 hours unless the jeans had been taken

off and left undisturbed.  If that had been the case however, she considered

that she would have been able to conclusively identify the residue as cartridge

discharge, which was not the case here;

(o) evidence from the applicant's father that he and his son had been shooting

at rabbits on 11 March, two days before the shooting of the UDR soldier.

30. On 18 January 1991, the applicant was found guilty of the offences of

attempted murder of W.A. and possession of a firearm with intent to endanger

life.  He was sentenced to a total of eighteen years' imprisonment.

31. The judge found the following:

(a) that the Vauxhall car was used by gunmen;

(b) that the applicant was not at home at the time the crime was

committed and there was no evidence to support his assertion that he was in B.'s

house;

(c) that the applicant had some association with the car at O1.30 hours

on 13 March;

(d) that the relationship between the applicant and the owner of the car

was a friendly and easy going one such that the applicant could have borrowed

the car for the purposes of the crime;

(e) that the applicant's left thumb print was found on the interior rear

mirror of the car and it could have been made at the material time;

(f) that the balaclava found in the back seat of the car was consistent

with the one seen by the victim and it was left by the gunmen and that some

fibres matching it were found in the applicant's hair and he could therefore

have been wearing it;

(g) that there were fibres on the back of the applicant's jeans and

anorak that matched fibres in the car upholstery and that the applicant had not

got into the car at 01.30 hours as had been claimed by P. in his oral testimony,

so that the fibres could not have come from that alleged contact;

(h) that some firearm residue particles characteristic of secondary

transfer were found on the inner waistband of the applicant's blue jeans and

that they could have been deposited there if the applicant or one of the gunmen

had put his pistol in the waistband of his jeans after the shooting;

(i) that the blue jeans found three hours after the crime were damp and

muddy and the mud was visually the same as in the area where the car was parked;

(j) that the applicant's front door key was found in the pocket in the

jeans; and

(k) that if the victim was mistaken in his statement of evidence to the

police and in cross-examination, but not in evidence in chief, that both gunmen

were wearing combat type trousers, the dampness and mud could have been caused

by the applicant at or about the car or in the sheugh or in the particular area.

As regards these findings the judge stated:

"Each one of these single matters is not inconsistent with the guilty

participation of the  accused in the crime.  Some are more consistent with guilt

than others.  Not one of them, however, in itself, proves guilt to the standard

of proof required.  For each of them, as Mr B.

stressed in his closing speech, there may be a counterbalancing explanation

consistent with innocence.  Although, in turn, some of them are less consistent

with innocence than others."

32. In convicting the applicant, the trial judge relied upon Article 4 of the

Criminal Evidence Order 1988, pursuant to which at the end of the prosecution

case he had called upon the applicant to give evidence in his own defence in

default of which adverse inferences could be drawn.  He also drew inferences

under Article 3 of the Criminal Evidence Order 1988 from the applicant's silence

during questioning by the police.  However, he adopted a different approach in

respect of inferences that could have been drawn on the basis that the applicant

had given some explanations to the police prior to his arrest.

33. The trial judge stated in regard to Article 3 of the Criminal Evidence

Order 1988 and the applicant's failure to respond to questions by the police:

"By this silence, can it be said that he failed to mention facts relied

upon in his defence at the trial? I do not forget that before he was cautioned

under Article 3 at Castlereagh he gave a general account of his  movements to

Detective Constable Bell and explained the condition of his jeans on the ground

that he had been out "hunting" two days before. What he omitted to do in reply

to the caution under Article 3 was to repeat these matters of his defence and to

fail to answer questions relative to their detail. He omitted to mention at all

and this to me is significant that he had driven the Vauxhall car on the

Saturday night before the crime and that he had met up with in

the early hours of the 13th. I consider that "could reasonably

have been expected" to have mentioned these matters at Castlereagh. The

"hunting" story could have been investigated by the police. Its forensic

significance would have been considered by the firearms expert. The potentially

damning evidence of the fingerprint, if left unexplained, found on the car

mirror was brought home to the accused at Castlereagh in clear language as was

the evidence linking the car to the scene of the crime. The incriminating nature

of fingerprint evidence must be well-known to any member of the public. I would

have expected a suspect when faced with this, if he had an innocent alternative

to give, to have given it.

I do not, however, in all the circumstances draw the strongest adverse

inference that one may be entitled to draw in other cases under Article 3. My

reason is that he did disclose in general terms some of the facts relied on in

his defence. But I do find that his failure to mention the particular matters

that he did, many of which were of the greatest importance in his defence,

reduces the credibility of his defence and increases the weight of the

prosecution case..."

In relation to the applicant's silence in court and the application of

Article 4 of the Criminal Evidence Order 1988, the trial judge commented:

"In the instant case it seems to me that what the prosecution has proved

in evidence calls for evidence from the accused in the witness box. No reasons

have been advanced for his refusal to give evidence. Nor are any reasons

apparent to the court for withholding his account on oath. Indeed it seems to me

remarkable he has not given evidence. It is not the function of the court to

conjure up reasons for his silence. He has been told by the court in plain

language what the consequences of his failure may be and he has no doubt been

advised by his experienced counsel to the same effect. It is only commonsense,

in the circumstances, to infer as proper inference that he is not prepared to

assert his innocence on oath because that is not the case. The inference which I

draw from his failure to give evidence under Article 4 is stronger and much more

to his detriment than that drawn by me under Article 3."

34. The applicant appealed against his conviction, alleging inter alia that

the judge had erred in applying Article 4 of the 1988 Criminal Evidence Order in

his case. The appeal was dismissed by the Court of Appeal in Northern Ireland on

25 October 1991.  Lord Chief Justice Hutton, giving the judgment of the court,

rejected the argument by the applicant's counsel that the approach of the trial

judge had the effect of reversing the burden of proof. It found that the trial

judge had not acted improperly in drawing an inference from the applicant's

failure to give evidence:

"The right of the court under Article 4 to draw such inferences as appear

proper arises once the Crown has established a prima facie case and does not

require that the Crown case constituted by the evidence should be 'on the brink'

of proving guilt or should create a situation which at common law would be

regarded as a 'confession and avoidance' situation. But whether or not the court

will draw inferences will depend upon the circumstances of the particular case

and, if inferences are drawn, the strength of those inferences will also depend

upon the particular circumstances of the case.

There may be cases where, despite the refusal of the accused to give

evidence when called upon by the court to do so pursuant to Article 4, the court

may think it inappropriate to draw any inferences against him. Moreover, before

convicting, the court, having regard to the evidence adduced by the Crown and to

the inferences (if any) which it draws under Article 4, must always be satisfied

that the Crown has discharged the burden of proving that the accused is guilty

beyond a reasonable doubt. Article 4 does not alter the fundamental principle

that the burden rests on the Crown to prove guilt beyond a reasonable doubt.

The refusal of the accused to give evidence on his own behalf does not in

itself indicate guilt. Under Article 4 it would be improper for the court to

draw the bare inference that because the accused refused to give evidence in his

own defence he was therefore guilty. But where commonsense permits it, it is

proper in an appropriate case for the court to draw the inference from the

refusal of the accused to give evidence that there is no reasonable possibility

of an innocent explanation to rebut the prima facie case established by the

evidence adduced by the Crown, and for the drawing of this inference to lead on

to the conclusion, after all the evidence in the case has been considered, that

the accused is guilty...

We consider that in this case the trial judge was entitled to draw the

inference from the refusal of the appellant to give evidence in his own defence

that there was no reasonable possibility of an innocent explanation which he

could put forward to rebut the inference which could be drawn from the evidence

adduced by the Crown, and that accordingly the inference which the Crown

submitted should be drawn from that evidence, namely that the appellant was one

of the gunmen who used the Vauxhall car and who shot and wounded ..., was

correct and that therefore the appellant was guilty..."

35. While the Court of Appeal found that the trial judge had erred in drawing

an inference under Article 3 of the 1988 Criminal Evidence Order from the

failure to offer an explanation for the fingerprint (ie. the fingerprint had not

been identified as that of the applicant until after his interviews with the

police), it found that this error did not invalidate his general findings in

respect of Article 3. It concluded that the convictions were not thereby

rendered unsafe or unsatisfactory.

36. The applicant was granted leave to appeal to the  House of Lords.

37. In its judgment of 29 October 1992, the House of Lords rejected the

applicant's appeal, agreeing with the judgment of the Court of Appeal.

Lord Slynn in the leading judgment stated:

"The accused cannot be compelled to give evidence but he must risk the

consequences if he does not do so. Those consequences are not simply, as the

appellant contends, that specific inferences may be drawn from specific facts.

They include in a proper case the drawing of an inference that the accused is

guilty of the events with which he is charged.

This does not mean that the court can conclude simply because the accused

does not give evidence that he is guilty. In the first place the prosecutor must

establish a prima facie case - a case for him to answer. In the second place in

determining whether the accused is guilty the judge or jury can draw only 'such

inferences from the refusal as appear proper'.  As Lord Diplock said in Haw Tua

Tau v. Public Prosecutor at p. 153B:

'What inferences are proper to be drawn from an accused's refusal to

give evidence depend upon the circumstances of the particular case, and is a

question to be decided by applying ordinary commonsense.'

There must thus be some basis derived from the circumstances which justify

the inference.

If there is no prima facie case shown by the prosecution there is no case

to answer. Equally, if parts of the prosecution had so little evidential value

that they called for no answer, a failure to deal with those specific matters

cannot justify an inference of guilt.

On the other hand if aspects of the evidence taken alone or in combination

with other facts clearly call for an explanation which the accused ought to be

in a position to give, if an explanation exists, then a failure to give any

explanation may as a matter of commonsense allow the drawing of an inference

that there is no explanation and that the accused is guilty...

In the present case if the only evidence relied on was that relating to

the fibres in the hair, on the clothing and in the car, it might well not be

enough to justify an inference that the accused was guilty beyond a reasonable

doubt. The cartridge residue on the jeans, the thumb print on the mirror and the

mud on the trousers, the evidence that he was not at home during the night

clearly taken in combination call for an explanation if there was one. The judge

was moreover entitled to have regard to the cumulative effect of all the

circumstantial evidence in deciding whether a failure to give evidence justified

an inference of guilt.

In my opinion the evidence adduced by the prosecution established a clear

prima facie case and the trial judge was entitled in all the circumstances of

the case, and as a matter of commonsense, to infer that there was no innocent

explanation  to the prima facie case and that the accused was guilty... Contrary

to the contention, he quite plainly did not proceed on the basis

that simply because the accused did not give evidence he was therefore

guilty..."

B. Relevant domestic law and practice

1. Provisions governing inferences which may be drawn from an accused's

silence

38. Article 3 of the Criminal Evidence (Northern Ireland) Order 1988

(hereafter referred to as the Criminal Evidence Order 1988) provides as

relevant:

"Circumstances in which inferences may be drawn from accused's failure to

mention particular facts when questioned, charged, etc.

3. (1) Where, in any proceedings against a person for an offence,

evidence is given that the accused

(a) at any time before he was charged with the offence, on being

questioned by a constable trying to discover whether or by whom the offence has

been committed, failed to mention any fact relied on in his defence in those

proceedings; or

(b) on being charged with the offence or officially informed that he

might be prosecuted for it, failed to mention any such fact,

being a fact which in the circumstances existing at the time the accused

could reasonably have been expected to mention when so questioned, charged or

informed, as the case may be, paragraph (2) applies.

(2) Where this paragraph applies:

(a) the court, in determining whether to commit the accused for

trial or whether there is a case to answer,

(b) a judge, in deciding whether to grant an application made by the

accused under Article 5 of the Criminal Justice (Serious Fraud) (Northern

Ireland) Order 1988 (application for dismissal of charge where a case of fraud

has been transferred from a magistrates' court to the Crown Court under Article

3 of that Order), and

(c) the court or jury, in determining whether the accused is guilty

of the offence charged,

may

(i) draw such inferences from the failure as appear proper;

(ii) on the basis of such inferences treat the failure as, or

as capable of amounting to, corroboration of any evidence given against the

accused in relation to which the failure is material.

(3) Subject to any directions by the court, evidence tending to establish

the failure may be given before or after evidence tending to establish the fact

which the accused is alleged to have failed to mention."

39. Article 4 of the Criminal Evidence Order 1988 provides as relevant:

"Accused to be called upon to give evidence at trial

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

paragraphs (2) to (7) apply unless

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

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

the accused makes it undesirable for him to be called upon to give evidence;

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

for the defence, the accused or counsel or a solicitor representing him

informs the court that the accused will give evidence.

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

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

to give evidence in his own defence, and

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

Article will be if

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

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

answer any question;

and thereupon the court shall call upon the accused to give

evidence.

(3) If the accused

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

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

him has informed the court that he will give evidence, refuses to be sworn, or

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

question, paragraph (4) applies.

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

offence charged, may

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

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

capable of amounting to, corroboration of any evidence given against the accused

in relation to which the refusal is material."

2. Provisions governing access to a solicitor

40. Section 15 of the Northern Ireland (Emergency Provisions) Act 1987

provides as relevant:

"15. Right of access to legal advice

(1) A person who is detained under the terrorism provisions and is being

held in police custody shall be entitled, if he so requests, to consult a

solicitor privately...

(4) If a person makes such a request, he must be permitted to consult a

solicitor as soon as is practicable except to the extent that any delay is

permitted by this section...

(8) An officer may only authorise a delay in complying with a request

under subsection (1) where he has reasonable grounds for believing that the

exercise of the right conferred by that subsection at the time when the detained

person desires to exercise it -

...

(d) will lead to interference with the gathering of information

about the commission, preparation or instigation of acts of terrorism; or

(e) by alerting any person, will make it more difficult -

i. to prevent an act of terrorism, or

ii. to secure the apprehension, prosecution or conviction of

any person in connection with the commission, preparation or instigation of an

act of terrorism."

The delay must be authorised by a police officer of at least the rank of

superintendent (subsection (5)(a)), and the detained person must be told the

reason for the delay (subsection (7)). The maximum delay is 48 hours.

III. OPINION OF THE COMMISSION

A. Complaints declared admissible

41. The Commission has declared admissible the applicant's complaints that the

inferences drawn from his failure to answer police questioning and to give

evidence in his defence violated his rights to a fair trial and to be presumed

innocent of the charges brought against him as well as his rights of defence,

and that he was denied access to a solicitor for 48 hours after his arrest.

B. Points at issue

42. The issues to be determined in the present case are:

- whether the drawing of adverse inferences deprived the applicant of

a fair trial contrary to Article 6 para. 1 (Art. 6-1) of the Convention;

- whether the drawing of adverse inferences infringed the presumption

of innocence guaranteed by Article 6 para. 2 (Art. 6-2) of the Convention;

- whether the drawing of adverse inferences deprived him of adequate

facilities for his defence contrary to Article 6 para. 3(b) (Art. 6-3-b);

- whether the denial of access to a solicitor for 48 hours after the

applicant's arrest infringed Article 6 para. 3(c) (Art. 6-3-c) of the

Convention;

- whether there has been a violation of Article 14 (Art. 14) of the

Convention;

- whether there has been a violation of Article 13 (Art. 13) of the

Convention.

C. As regards Article 6 para. 1 (Art. 6-1) of the Convention

43. Article 6 para. 1 (Art. 6-1) of the Convention provides, as relevant:

"1. In the determination of his civil rights and obligations or of any

criminal charge against him, everyone is entitled to a fair and public hearing

within a reasonable time by an independent and impartial tribunal established by

law. ..."

i. Submissions of the parties

44. The Government submit, inter alia, that the provisions of the 1988

Criminal Evidence Order did not operate to deprive the applicant either of a

fair hearing, contrary to Article 6 para. 1 (Art. 6-1) of the Convention. They

refer to the safeguards provided in Article 4 of the Criminal Evidence Order

1988: no inference may be drawn unless the suspect/accused has been warned in

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

drawn the prosecution must have established a prima facie case against the

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

only draw such inferences as appear proper. They claim that the Criminal

Evidence Order 1988 merely allows the trier of fact to draw such inferences as

common sense dictates.  They further refer to the safeguards provided in Article

3 of the Criminal Evidence Order 1988: inferences may only be drawn in a

specific limited category of cases (in this case the failure of the applicant to

mention facts subsequently relied on in his defence), the accused must be warned

of the consequences of remaining silent, the accused will not be prosecuted for

refusing to answer police questions, the trier of fact has a discretion whether

to draw inferences and may only do so when it appears proper.

45. The Government further submit that the drawing of inferences under

Articles 3 and 4 of the Criminal Evidence Order 1988 did not mean that the trial

judge presumed the applicant to be guilty or that the prosecution was not

required to prove the case against the applicant to the usual standard, beyond

reasonable doubt. Articles 3 and 4 simply enabled the trial judge to draw

inferences based on common sense in the light of the "clear prima facie case"

(per Lord Slynn) against the applicant.  The Government further submit that the

requirement that, if an accused does give evidence, he does so on oath and

subject to his account being probed in cross-examination (the most effective way

of enabling the trier of fact to judge whether or not an accused is telling the

truth) is an important corollary to the right of an accused to give evidence and

does not render his trial unfair.

46. The Government further submit that the matters that led the Court  to

conclude in the case of John Murray v. United Kingdom (Eur. Court HR judgment of

8 February 1996 Reports 1996-I No.1 p. 30), that the degree of compulsion under

Article 4 of the Order (as regards the giving of evidence at trial) was not such

as to amount to a violation of Article 6 (Art. 6) of the Convention, are

applicable to all cases where the provisions of the 1988 Criminal Evidence Order

are applied, in particular, that if an inference is drawn under the Criminal

Evidence Order 1988 by the domestic court, that will be because the situation is

one which the court considers clearly calls for an explanation from the accused

and that in this case the domestic court expressly concluded that the weight of

the evidence against the applicant called for an explanation from him and that

since none was forthcoming at trial, the inference drawn was a matter of common

sense.

47. As to the inferences drawn under Article 3 (Art. 3), the Government submit

that a prima facie case based on forensic and other evidence was clearly made

out without any need to rely on inferences. While the inferences drawn under

Articles  3 and 4 (Art. 3, 4) were part of the totality of the case against the

applicant and played a part in the judge's conclusion that the applicant was

guilty of the offence of attempted murder, the role played by them was neither

unfair or unreasonable having regard to the safeguards referred to above and the

careful consideration applied by the courts.

ii. Applicable principles

48. The Court in the John Murray case (Eur. Court. HR judgment of 8 February

1996 Reports 1996-I no. 1 p. 30) iterated the following principles:

a. the right to remain silent under police questioning and the privilege

against self-incrimination are generally recognised standards lying at the heart

of a fair procedure under Article 6 (Art. 6), providing protection against

improper compulsion;

b. it is incompatible with these immunities to base a conviction solely or

mainly on an accused's silence or his failure to answer questions or give

evidence;

c. these immunities do not however prevent that an accused's silence, in

situations which clearly call for an explanation from him, be taken into account

in assessing the persuasiveness of the prosecution case against him;

d. whether the drawing of adverse inferences from an accused's silence

infringes Article 6 (Art. 6) is to be determined in light of all the

circumstances of the case, having regard to the situations where inferences may

be drawn, the weight attached to them by the national courts in the assessment

of the evidence and the degree of compulsion.

49. In the Saunders case (Eur. Court HR Reports 1996-VI No. 24 p. 2095, Comm.

Report para. 72), the Commission noted that the privilege against self-

incrimination was closely allied to the principle of the presumption of

innocence in that it reflects that the State bear the general burden of

establishing the guilt of an accused, in which process the accused is entitled

not to be required to furnish any involuntary assistance by way of confession.

iii. Application to the facts of this case

50. The Commission observes that in this case inferences were drawn against

the applicant both under Article 3 of the Criminal Evidence Order 1988 for

failure to respond to questions by the police and under Article 4 for failure to

give evidence at his trial when called upon to do so by the judge.

51. As regards the compulsion involved, the Commission notes that the

applicant was warned that inferences might be drawn from a failure to give

explanations for himself in both contexts but that he chose to remain silent,

which was not subject to sanction as an offence or contempt of court (see eg.

Eur. Court HR Funke v. France judgment of 25 February 1993 Series A no. 256-A

and Saunders v. UK judgment of 17 December 1996 Reports 1996-VI No. 24 p. 2044).

As in the John Murray case, the fact that such silence may be subject to adverse

inferences discloses a level of indirect compulsion, which is not of itself

decisive. More important is the role played by those inferences in the

proceedings and, especially, the applicant's conviction.

52. Concerning the applicant's failure to respond to police questioning, the

Commission recalls that the trial judge found that the applicant could have been

expected to explain in detail to the police his account of having been "hunting"

a few days before, which was relevant to the finding of discharge residue on his

jeans, to mention that he had met up with various witnesses during the early

hours before the crime was committed and to explain the presence of his

fingerprint on the Vauxhall car used in the crime. The Commission observes that

the judge took into account the fact that the applicant had mentioned in general

terms some of the facts relied on in his defence and did not therefore draw the

strongest adverse inferences. The Court of Appeal found that the judge had erred

in drawing an inference from lack of explanation of the fingerprint since, in

fact, the matter had not been put to him at that time. The Court of Appeal

nonetheless found that this one error did not invalidate the reasoning of the

judge as regarded the other elements.

53. In respect of the applicant's failure to testify, the Commission recalls

that the judge found that the prosecution case called for evidence from the

applicant and that it was only common sense in the circumstances to infer that

he was not prepared to assert his innocence on oath because that was not the

case. He therefore drew a stronger inference than under Article 3.

54. The Commission notes that the inferences were not the only or principal

evidence against the applicant, but that the judge relied on a large number of

circumstantial factors linking the applicant with the crime, in particular his

fingerprint found on the car used in the crime and firearm residue particles on

the inside waistband area of his jeans. The Commission considers that, against

this evidence, the situation could be said, on a common sense basis, clearly to

call for an explanation by the applicant.

55. The Commission recalls that inferences drawn under Article 3 (Art. 3) were

not in issue in the John Murray case. It notes that the purpose of Article 3

(Art. 3) is to permit the drawing of proper inferences from the failure of

suspects to mention to the police any fact later relied on in their defence, to

prevent the hampering of police investigations by accused who take advantage of

their right to silence by waiting until trial to spring exculpatory

explanations, in circumstances in which the accused has no reasonable

explanation for withholding an explanation. It seems to the Commission that the

extent to which adverse inferences can be drawn from failure to respond to

police questioning must be necessarily limited. While it may no doubt be

expected in most cases  that innocent persons would be willing to co-operate

with the police in explaining that they were not involved in any suspected

crime, there may be reasons why in a specific case an innocent person would not

be prepared to do so. In particular, an innocent person may wish not to make any

statement before he has had the opportunity to consult a lawyer. The Commission

therefore considers that considerable caution is required when attaching weight

to the fact that a person, arrested, as in this case, in connection with a

serious criminal offence and not having been given access to a lawyer, does not

provide detailed responses when confronted with incriminatory evidence against

him.

56. The Commission finds however that the role played by these inferences in

the conviction of the applicant was restricted by the judge to a finding that

the applicant's failure to mention the details of his defence reduced its

credibility. It is clear from the judgment that this was a finding against the

background of the judge's assessment of the probative value of the

circumstantial evidence against the applicant and the weak nature of the

applicant's explanation - namely, the  "hunting" story did not account

persuasively for the particles inside his jeans' waistband two days later. In

these circumstances, the Commission is of the opinion that this did not go

beyond the application of common sense implications based on the evidence taken

as a whole.

57. As regards the drawing of inferences under Article 4 of the Order, due to

the applicant's failure to testify, this case also differs from the John Murray

case, where no violation was found in respect of inferences drawn from failure

to give such explanation to the court, since the applicant in the present case

did provide an explanation to the police. The Commission also notes that the

inference under Article 4 was given greater weight by the judge than that drawn

under Article 3 of the Order. However, the Commission finds, having regard to

the judgment as a whole, that the applicant's failure to give evidence was used

not to establish guilt per se but was an additional element adding to the

persuasiveness of the prosecution case. It appears wholly in keeping with

respect for the rights of the defence for a judge, in weighing the evidence

supporting the prosecution and the innocent explanations for that evidence

proffered by the defence, to take into account that the explanation of the

accused which is in itself unconvincing was not supported by any oral evidence

from the accused which might have added to its credibility. In assessing the

prosecution evidence taken in combination with inferences, as proving the

applicant's guilt beyond reasonable doubt, the judge did not go beyond his role

in the appreciation of evidence, which is primarily within the competence of the

domestic courts (eg. Eur. Court HR Edwards v. United Kingdom judgment of 16

December 1992, Series A no. 247-B).

58. Taking into account therefore the nature of the role played by the

inferences in the circumstances of this case and the fact that they were not

decisive for the finding of guilt, the Commission concludes that the proceedings

did not fail to comply with the requirements of Article 6 para. 1 (Art. 6-1) as

regards their fairness.

CONCLUSION

59. The Commission concludes, by 30 votes to 2, that there has been no

violation of Article 6 para. 1 (Art. 6-1) of the Convention.

D. As regards Article 6 paras. 2 and 3(b) (Art. 6-2, 6-3-b) of the Convention

60. Article 6 paras. 2 and 3(b) (Art. 6-2, 6-3-b) of the Convention provide:

"2. Everyone charged with a criminal offence shall be presumed innocent

until proved guilty by law."

"3. Everyone charged with a criminal offence has the following minimum

rights:

...

b. to have adequate time and facilities for the preparation of his

defence;"

61. The Commission considers that the issues under Article 6 paras. 2 and 3(b)

(Art. 6-2, 6-3-b) of the Convention are in this case closely linked to the issue

under Article 6 para. 1 (Art. 6-1) and, having found that the latter Article has

not been violated, it finds that for the same reasons there has been no

violation of Article 6 paras. 2 or 3(b) (Art. 6-2, 6-3-b).

CONCLUSIONS

62. The Commission concludes, by 31 votes to 1, that there has been no

violation of Article 6 para. 2 (Art. 6-2) of the Convention.

63. The Commission concludes, unanimously, that there has been no violation of

Article 6 para. 3(b) (Art. 6-3-b) of the Convention.

E. As regards Article 6 para. 3(c) (Art. 6-3-c) of the Convention

64. Article 6 para. 3(c) (Art. 6-3-c) of the Convention provides:

"3. Everyone charged with a criminal offence has the following minimum

rights:

...

(c) to defend himself in person or through legal assistance of his own

choosing or, if he has not sufficient means to pay for legal assistance, to be

given it free when the interests of justice so require."

65. The applicant has complained that denial of access to a solicitor for 48

hours following his arrest violates the above provision. The  Government did not

contest the admissibility of this complaint nor that the reasoning of the

majority of the Court in John Murray would lead to the finding of a breach.

66. While the applicant has also invoked Article 5 para. 3 (Art. 5-3) in this

connection the Commission finds it appropriate to deal with the complaints under

Article 6 para. 3(c) (Art. 6-3-c) alone.

67. The Commission recalls that the applicant asked to see his solicitor when

he was brought to Castlereagh police office under arrest, but that a delay of 48

hours in access was authorised by a senior police officer pursuant to Section 15

of the Northern Ireland (Emergency Provisions) Act 1987. He was thereafter

questioned by police officers and at his trial, inferences were drawn from his

failure to mention certain matters to the police which were relied on in his

defence.

68. Having regard to the system of adverse inferences which may drawn under

the 1988 Order, in particular, as in this case, those that can be drawn under

Article 3 from failure to answer police questions, the Commission observes that

it is of paramount importance for the rights of the defence that an accused has

access to a solicitor at the initial stages of police interrogation and that

denial of access in a situation where the position of the defence may be

irretrievably prejudiced is incompatible with the rights of the defence (Eur.

Court HR John Murray judgment op. cit. para. 66).

69. The Commission finds therefore that the denial of access to the applicant

to his solicitor during the first 48 hours of detention failed to comply with

the requirements of Article 6 para. 3(c) (Art. 6-3-c) of the Convention.

CONCLUSION

70.  The Commission concludes, unanimously, that there has been a violation of

Article 6 para. 3(c) (Art. 6-3-c) of the Convention.

F. As regards Article 14 (Art. 14) of the Convention

71.   Article 14 (Art. 14) of the Convention provides:

"The enjoyment of the rights and freedoms set forth in this Convention

shall be secured without discrimination on any ground such as sex, race, colour,

language, religion, political or other opinion, national or social origin,

association with a national minority, property, birth or other status."

72.  The applicant has made no submissions explaining the grounds of this

complaint made in his application form.

73. Having regard to the lack of explanations and to the findings above (para.

70), the Commission does not consider it necessary to examine this complaint

further.

CONCLUSION

74. The Commission concludes, unanimously, that it is not necessary to examine

whether there has been a violation of Article 14 (Art. 14) of the Convention.

G. As regards Article 13 (Art. 13) of the Convention

75. Article 13 (Art. 13) provides:

"Everyone whose rights and freedoms as set forth in this Convention are

violated shall have an effective remedy before a national authority

notwithstanding that the violation has been committed by persons acting in an

official capacity."

76. The Commission recalls that Article 13 (Art. 13), as a more general

guarantee, does not apply in cases where the more specific guarantees of Article

6 (Art. 6) apply, Article 6 (Art. 6) being the lex specialis in relation to

Article 13 (Art. 13) and absorbing its requirements.

CONCLUSION

77. The Commission concludes unanimously that no separate issue arises under

Article 13 (Art. 13) of the Convention.

H. Recapitulation

78. The Commission concludes, by 30 votes to 2, that there has been no

violation of Article 6 para. 1 (Art. 6-1) of the Convention (para. 59).

79. The Commission concludes, by 31 votes to 1, that there has been no

violation of Article 6 para. 2 (Art. 6-2) of the Convention (para. 62).

80. The Commission concludes, unanimously, that there has been no violation of

Article 6 para. 3(b) (Art. 6-3-b) of the Convention (para. 63).

81. The Commission concludes, unanimously, that there has been a violation of

Article 6 para. 3(c) (Art. 6-3-c) of the Convention (para. 70).

82.   The Commission concludes, unanimously, that it is not necessary to examine

whether there has been a violation of Article 14 of the Convention (para. 74).

83. The Commission concludes unanimously that no separate issue arises under

Article 13 of the Convention (para. 77).

        M. de SALVIA                        S. TRECHSEL

         Secretary                           President

      to the Commission                   of the Commission

(Or. English)

PARTLY DISSENTING AND PARTLY

CONCURRING OPINION OF MR E. BUSUTTIL

I remain of the view, for the reasons set out in the dissenting part of my

opinion in the John Murray case (Application No. 18731/91) decided by the

Commission on 27 June 1994, that the drawing of adverse inferences from the

applicant's silence deprived him of a fair trial and infringed the principle of

the presumption of innocence.

Accordingly, I consider that there has been a violation of both paras. 1

and 2 of Article 6 of the Convention.

For the rest, I am in agreement with the opinion of the majority.

(Or. English)

PARTLY DISSENTING AND PARTLY

CONCURRING OPINION OF MR L. LOUCAIDES

To the extent that the case concerns the drawing of adverse inferences

from the failure of the applicant to give explanations to the police I am unable

to agree with the conclusion of the majority that in this case there has been no

violation of Article 6 para. 1 of the Convention.

I remain of the view, for the reasons set out in my dissenting opinion in

the John Murray case (Application No. 18731/91, decided by the Commission on 27

June 1994, that the drawing of adverse inferences against an accused person

because of his silence during the police questioning amounts to a violation of

Article 6, para. 1 of the Convention.

Otherwise I find myself in agreement with the majority as far as the

conclusions reached regarding the drawing of adverse inferences from applicant's

failure to give evidence at his trial and in this respect again refer to the

above mentioned dissenting opinion.

I also agree with the majority that there has been a violation of Article

6 para. 1 in conjunction with para. 3(c) of the Convention as regards the

applicant's lack of access to a solicitor.