EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 23496/94

Dermot Quinn

against

the United Kingdom

REPORT OF THE COMMISSION

(adopted on 11 December 1997)

TABLE OF CONTENTS

page

I. INTRODUCTION

(paras. 1-18) 1

A. The application

(paras. 2-4) 1

B. The proceedings

(paras. 5-13) 1

C. The present Report

(paras. 14-18) 2

II. ESTABLISHMENT OF THE FACTS

(paras. 19-44) 4

A. Particular circumstances of the case

(paras. 19-39) 4

B. Relevant domestic law and practice

(paras. 40-44) 9

III. OPINION OF THE COMMISSION

(paras. 45-87) 13

A. Complaints declared admissible

(para. 45) 13

B. Points at issue

(para. 46) 13

C. As regards Article 6 para. 1 of the Convention (drawing of              adverse inferences)

(paras. 47-64) 13

CONCLUSION

(para. 65) 17

D. As regards Article 6 para. 2 of the Convention

(paras. 66-67) 18

CONCLUSION

(para. 68) 18

E. As regards Article 6 para. 1 in conjunction with para. 3(c) of the                                                     Convention (lack of access to a solicitor)

(paras. 69-75)              18

CONCLUSION

(para. 76) 20

F. As regards Article 6 para. 1 in conjunction with para. 3(d)

of the Convention (admission of written statements in evidence)                                                     (paras. 77-82)                                                                                                         20

CONCLUSION

(para. 83) 22

G. Recapitulation

(paras. 84-87)              22

CONCURRING OPINION OF MR N. BRATZA 23

PARTLY DISSENTING OPINION OF MR S. TRECHSEL

JOINED BY MR F. MARTINEZ 26

PARTLY DISSENTING AND PARTLY CONCURRING OPINION OF

MR E. BUSUTTIL 28

PARTLY DISSENTING AND PARTLY CONCURRING OPINION OF

MR L. LOUCAIDES 29

PARTLY DISSENTING OPINION OF MR G. RESS 30

APPENDIX: DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION              31

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 an Irish citizen born in 1964 and presently detained in the Maze prison, Northern Ireland. He is represented by Mr Martin Donaghy , a solicitor practising in Dungannon .

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, lack of access to a solicitor after arrest and the admission in evidence of statements from witnesses who did not testify at his trial. The case raises issues under Article 6 paras. 1, 2, 3(c) and (d) of the Convention.

B. The proceedings

5. The application was introduced on 30 September 1993 and registered on 16 February 1994.

6. On 30 August 1994, the Commission decided to communicate the application to the Government inviting them to submit observations on the admissibility and merits.

7. On 22 December 1994, after an extension in the time-limit, the Government submitted their observations. The applicant's observations were submitted on 10 March 1995, after two extensions in the time-limit.

8. On 20 May 1995, the Commission decided to adjourn 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. On 3 April 1996, the applicant submitted further observations and on 10 May 1996, the Government submitted supplementary observations, after one extension in the time-limit.

11. On 21 October 1996, the Commission declared the application  partly admissible, partly inadmissible. It invited the parties' submissions on specific questions.

12. On 15 January 1997, the Government submitted further observations, after an extension in the time-limit. The applicant submitted his response on 29 January, after an extension in the time-limit.

13. 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

14. 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. PERENIČ

C. BÃŽRSAN

P. LORENZEN

K. HERNDL

E. BIELIŪNAS

E.A. ALKEMA

M. VILA AMIGÓ

Mrs M. HION

MM R. NICOLINI

A. ARABADJIEV

15. The text of the Report was adopted by the Commission on 11 December 1997 and is now transmitted to the Committee of Ministers in accordance with Article 31 para. 2 of the Convention.

16. 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.

17. The Commission's decision on the admissibility of the application is annexed hereto.

18. 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

19. On 13 April 1988, two gunmen fired a considerable number of shots at two detective constables in the Royal Ulster Constabulary (RUC), I.M. and S.S. , as they drove along a small lane leading off Ballygasoon Road in County Armagh .  A green Datsun car, which had pulled on to the road in front of them and reversed back towards the police officers, drove off after the incident.  On the same day, three members of the O'Hagan family made statements to the police that the armed gunmen had arrived in a green car at their house (which was near to the scene of the shooting), had smashed a glass panel in the front door and had seized the keys to their brown Peugeot car, and had driven off in it.  The police later found the cars abandoned, with two balaclava helmets in the Peugeot.

20. The applicant was a passenger in a car driven by Mrs McCartan that was stopped by the police at a police check point in the vicinity of the shooting one hour after events at the O'Hagan home. On being questioned Mrs McCartan stated that she was taking the applicant to his girlfriend's home at Dungannon and the applicant stated that he had been working on the mushrooms for Mr and Mrs McCartan and that he was going to his girlfriend's home at Dungannon . The applicant and Mrs McCartan were arrested under section 12 of the Prevention of Terrorism Act 1984. The applicant was told that he was suspected of being involved in an attempted murder, several miles away.  Paper bags were put over the hands of the applicant and they were both taken to Gough Barracks, Armagh . The applicant was interviewed from 14 April 1988 to 19 April 1988. He maintained silence throughout this period. On termination of the interviews, the applicant was charged with three offences of attempted murder and possession of ammunition and was remanded in custody.

21. On 28 September 1988, at a preliminary investigation of the three offences charged, the three O'Hagans were summoned to give evidence before the Magistrates' Court.  They failed to appear. Consequently, they were arrested and brought to court on 29 September 1988 where they stated that they were unwilling to make depositions because they were afraid of the consequences. In the absence of a prima facie case against the applicant, the Court discharged him.

22. On 26 October 1988, the Criminal Justice (Evidence etc.) (Northern Ireland) Order 1988 (hereinafter "the Criminal Justice Order") came into force.  It provided, inter alia , for the admission of evidence in criminal proceedings by way of written testimony in circumstances where the witness in question refuses to give oral evidence due to fear of reprisals (see Relevant domestic law and practice below). On 14 December 1988, Article 3 of the 1988 Criminal Evidence (Northern Ireland) Order 1988 (hereinafter the "1988 Criminal Evidence Order") came into effect, allowing the drawing of adverse inferences from the failure of a person to mention to the police particular facts later relied on in his defence (see Relevant domestic law and practice below).

23. On 16 July 1990, the applicant was again arrested in relation to the shootings of 13 April 1988, this time under Section 14 of the Prevention of Terrorism (Temporary Provisions) Act  1989.  He asked to see a solicitor and the police office attempted to contact one on his behalf. Before a solicitor arrived, the applicant was cautioned in accordance with Article 3 of the 1988 Criminal Evidence Order in the following terms:

"You do not have to say anything unless you wish to do so but I must warn you that if you fail to mention any fact which you rely on in your defence in court your failure to take this opportunity may be treated in court as supporting any relevant evidence against you. If you do wish to say anything, what you may say may be given in evidence."

24. The applicant was asked if he understood the caution but made no reply. He was also given Appendix 'D' which set out the circumstances in which adverse inferences could be drawn against him under the 1988 Criminal Evidence Order. He was asked to read it but showed no interest. It was then read to him and he was asked if he understood or wished to ask anything. In the course of the interviews the applicant was asked to account for the firearms residue that had been identified in his jacket pocket, the fibres which had been found in his hair and which seemed to indicate that he had worn one of the balaclava helmets found in the Peugeot, and the glass fragments which had been found in the balaclava helmets and which seemed to indicate that these helmets had been used when a glass panel had been smashed on 13 April 1988. In relation to each of these questions he was warned under Article 5 of the 1988 Criminal Evidence Order of the consequences of his failing to give explanations. He made no reply to any questions. He maintained his silence throughout a second interview which also took place before the arrival of his solicitor.

25. Following the second interview, the applicant was charged with two counts of attempted murder in respect of I.M. and S.S. on 13 April 1988 contrary to Article 3 of the Criminal Attempts and Conspiracy (Northern Ireland) Order 1983 and common law and with the possession of firearms and ammunition with intent by means thereof to endanger life or cause serious injury to property, contrary to Article 17 of the Firearms (Northern Ireland) Order 1981.

26. The three O'Hagans were summoned to appear as witnesses in a preliminary investigation before the Resident Magistrate. Two appeared but refused to give evidence.

27. The applicant was tried before a single judge sitting in a " Diplock court" (a court specially convened for the trying of terrorist offences) in respect of the three charges referred to above. The O'Hagans were summoned to appear as witnesses.  Again, only two came to court where they stated that they did not wish to give evidence as, they said, "it is a non-jury trial".

28. The prosecution requested the judge to exercise his discretion under Article 3 paragraph 3 of the Criminal Justice Order to admit the written statements of the O'Hagans , that had been taken by police officers on 13 April 1988, as evidence in the proceedings. The applicant contested the admission of the statements, claiming that since the applicant would not be able to cross-examine the witnesses, the admission of the evidence would result in unfairness to the accused.

29. In ruling that the statements were admissible, the judge stated the following:

"I am satisfied beyond a reasonable doubt that the three members of the O'Hagan family did not give evidence at the two preliminary investigations because of fear. I have no doubt that that fear has continued and the reason why did not give evidence at this trial was through fear... I am satisfied beyond a reasonable doubt that the reason stated in this Court ... that they did not wish to give evidence because this was a non-jury trial is completely untrue. I am satisfied that this was a concocted and untruthful reason which was suggested to them by some-one else....

..The provisions of Articles 5 and 6 of the 1988 Order are clearly designed to ensure that the accused receives a fair trial. As I am satisfied, having regard to those provisions, that it is in the interests of justice that the statements of the three O'Hagans should be admitted as evidence, it follows that I am satisfied that the accused will receive a fair hearing."

30. In accordance with Article 6 of the 1988 Order, the judge found that the quality of the evidence in the statements was excellent with regard to consistency and reliability and that there was no risk of unfairness to the applicant who could have either given evidence himself or called other witnesses to controvert the statements.

31. The prosecution evidence against the applicant also included forensic evidence: fibres from the applicant's hair matched those from the balaclavas found in the abandoned Peugeot and firearms' residue was found in the applicant's jacket pockets.

32. The applicant gave evidence that at the relevant time he had been working in the mushroom house on the McCartan's farm and had worn a black woolly type hat when doing so. He suggested that the firearms residue found in his jacket might be due to the fact that he had been out shooting with an uncle and that on occasions he had picked up empty shotgun cartridges in the fields near his house. He also suggested that he might have been in contact with a Hilti gun when he had done engineering work in the past. He also explained that he had not told the police on the occasion of his second arrest about working on the farm since he had been arrested for something very serious and did not want to get into anything until he had seen his solicitor. Mr McCartan appeared as a witness for the defence and gave evidence supporting the applicant's alibi. He stated that the accused helped him with cattle and with mushrooms and that on 13 April 1988 the accused had been helping him with mushrooms. The applicant had helped him with the mushrooms until about 9.00 pm and had asked his wife to drive him to Dungannon to his girlfriend's.

33. The judge did not accept the applicant's defence and stated the following:

"If the accused had been working in the mushroom house on the McCartan's farm at Benburb at 8:30 pm on the evening of 13 April 1988, and had been wearing a black woolly hat, it would have been the easiest thing in the world for him to have told these things to the police, particularly as he knew from the earlier interviews in March 1988, which had taken place after his arrest on 13 April 1988, that the police were suggesting that at 8:30 pm on the 13th April 1988 he had been at the lane running off the Ballygassoon Road where the attack took place. But the accused said not a word.

...

Observing the accused giving his evidence, I formed the view from his demeanour and from the way in which he gave his evidence that              he was lying and that he gave a lying account of what he did              between 5.00pm and 9.00pm on 13th April 1988.

Observing Mr McCartan giving his evidence it was patently obvious from his demeanour and the way which he gave his evidence that he was lying and that he had come into the witness box to give a totally untruthful account of what had happened on the afternoon and evening of 13th April in order to resist [assist] the accused."

34. In his judgment, the judge found the applicant guilty having regard to the forensic evidence and the applicant's presence in the vicinity of the shooting. He also relied on the "very strong adverse inference" which he drew under Article 3 of the 1988 Evidence Order from the applicant's silence:

"The accused was asked in cross-examination why in interviews in July 1990 he had not told the police that he had been working at the McCartan's on the evening of 13th April 1988.  He replied that there had been talk of people going into police stations and being forced to make a statement. He also said that he had been arrested for something very serious and that he did not want to get into anything (and by this I understood him to mean that he did not want to say anything to the police) until he had seen his solicitor. I did not believe the accused when he gave these reasons for not giving any replies to the police. If it was true that he had been working at McCartan's at the time that the detective constables were attacked, it would have been obvious to him that he should have told the police of this, and it is quite clear that he would not have needed the advice of a solicitor before giving an account to the police which if true would have cleared him of the offences of which he was accused. I am satisfied that his conduct in giving no answers whatever to the questions put by the police was a deliberate tactic which a man with a truthful explanation in respect of the matters put to him would not have adopted.

Mr Harvey submitted that an adverse inference should not be drawn against the accused under Article 3, because he had asked to consult with a solicitor when he first arrived at Gough Barracks Police Office, and  section 15 of the Northern Ireland (Emergency Provisions) Act 1987 gave him a right to consult a solicitor but the police interviewed him before his solicitor came to the Gough Barracks Police office to advise him. I reject that submission. The Criminal Evidence (Northern Ireland) Order 1988 was made law after section 15 of the Northern Ireland (Emergency Provisions) Act 1987 became law, and I consider that Parliament did not intend that an inference dictated by common sense which was permitted by Article 3 of the 1988 Order should not be drawn because of the  right of access to legal advice given by section 15 of the 1987 Act. The present case was not one where the truthful explanation that a suspect, being interviewed by the police, could give, might or might not clear him of guilt and where he would need the advice of a solicitor before deciding to give the explanation. As I have already stated, if it were true that the accused was working at the McCartan's on the evening of 13 April 1988 when the two detectives were attacked, it would have been obvious to him that he should give this explanation and there was no reason why he should see a solicitor before giving that explanation. I consider it to be clear that Parliament did not intend that the change in the law brought about by Article 3 which permits and contemplates the drawing of a common sense inference in an appropriate case should be stultified by the existence of the right to legal advice given by section 15 of the 1987 Act. In the present case, I draw the strong adverse inference against the accused that his account in the witness box that on the evening of 13 April 1988 he had been working in the mushroom house, wearing a black woolly hat, was a complete falsehood. This matter taken together with the matters which I have referred to in ( i ), (ii) and (iii) above satisfies me that he was a member of the terrorist gang who attacked the two detective constables and that he is guilty of the three counts on the indictment."

35. The judge drew no inferences under Article 5 of the 1988 Criminal Evidence Order because the applicant had been asked to account for evidence that was present at the time of the first arrest on 13 April 1988, not at the time of the second arrest on 16 July 1990.

36. On 23 December 1991, the applicant was convicted on two counts of attempted murder and on a single count of possession of firearms and ammunition with intent. He was sentenced to a total of 25 years' imprisonment.

37. The applicant appealed on the grounds, inter alia , that the trial judge had erred in admitting the O'Hagan statements in evidence and that the trial judge had erred in drawing an adverse inference under Article 3 where the accused was questioned before receiving legal advice which he had requested.

38. By its judgment of 17 September 1993, the Court of Appeal of Northern Ireland found that the judge had not erred in admitting the O'Hagan statements. Further, as regards the drawing of adverse inferences, the Court agreed with the trial judge:

"it is inconceivable that if Parliament intended Article 3 should be read subject to s. 15 of the 1987 Act it would not have said so expressly...so far as the technical requirements of the law are concerned we are satisfied that there was no breach of any of those provisions by the interviewing officers in what they did. What then of the merits of the matter on which Mr Harvey placed great stress? His main submission was that it was unfair and wrong for the judge to draw an adverse inference in the unusual circumstances of this case. In our view however it is important to look at the history of this case and particularly at the interviews during the first arrest period. During those earlier interviews after his first arrest the appellant was made completely aware of the forensic case which the police had against him... and... it would have been the easiest thing in the world for him, after the second arrest and after he had been warned clearly by the detectives of the consequences of his not saying anything on which he wished to rely later in his defence -it was the easiest thing in the world for him to say, "I can explain those fibres because I was wearing an acrylic hat a few hours before I was arrested." As regards firearms residues where was the difficulty in saying to the interviewers that he was often out with uncles who used sporting guns and often picked up spent cartridges? He had nearly two years to think out his position... No doubt...there had been a change in law between his two arrests - a point which must have been obvious to him when on 16 July 1990 the detectives explained the new rules in law, yet he made no request whatever for a postponement of the interview when it started ..Moreover D/I Cardew was not challenged when he said in evidence that there had been no deferral of the appellant's right to see a solicitor and if the appellant had asked for a postponement he would have immediately stopped the interview. In the result we take the view that there is no question of unfairness in what the learned judge did and that he was entirely right in drawing the inference which he did."

39. The Court dismissed the applicant's appeal against his convictions.

B. Relevant domestic law and practice

1. Admissibility of statements of first-hand hearsay

40. Article 3 of the Criminal Justice (Evidence etc.) (Northern Ireland) Order 1988 provides so far as relevant:

"3-(1) ...

a statement made by a person in a document shall be admissible in criminal proceedings as evidence of any fact of which direct oral evidence by him would be admissible if - ...

(ii) the requirements of paragraph 3 are satisfied...

   (3) the requirements  mentioned in paragraph 1(ii) are -

(a) that the statement was made to a police officer... and

(b) that the person who made it does not give oral evidence through fear..."

41. Article 6 provides that the court should follow certain principles in determining whether a statement should be admitted. It provides:

"5(1)If, having regard to all the circumstances -

(a) the Crown Court -

( i ) on a trial on indictment; or ..

(b) the Court of Appeal;...

is of the opinion that in the interests of justice a statement which is admissible by virtue of Article 3...nevertheless ought not to be admitted, it may direct that the statement shall not be admitted.

(2) Without prejudice to the generality of paragraph (1), it shall be the duty of the court to have regard -

(a) to the nature and source of the document containing the statement and to whether or not, having regard to its nature and source and to any other circumstances that appear to the court to be relevant, it is likely that the document is authentic;

(b) to the extent to which the statement appears to supply evidence which would otherwise not be readily available;

(c) to the relevance of the evidence that it appears to supply to any issue which is likely to have to be determined in the proceedings; and

(d) to any risk, having regard in particular to whether it is likely to be possible to controvert the statement if the person making it does not attend to give oral evidence in the proceedings, that its admission or exclusion will result in unfairness to the accused.."

42. Article 6 provides that a statement prima facie admissible under Article 3 which appears to the court to have been prepared for the purposes of "pending or contemplated criminal proceedings" is not to be given in evidence:

"in any criminal proceedings without the leave of the court, and the court shall not give leave unless it is of the opinion that the statement ought to be admitted in the interests of justice; and in considering whether its admission would be in the interests of justice, it shall be the duty of the court to have regard -

( i ) to the contents of the statement;

(ii) to any risk, having regard to whether it is likely to be possible to controvert the statement if the person making it does not attend to give oral evidence in the proceedings, that its admission or exclusion will result in unfairness to the accused or, if there is more than one, to any one of them; and

(iii) to any other circumstances that appear to the court to be relevant."

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

43. Article 3 of the Criminal Evidence (Northern Ireland) Order 1988 provides as relevant:

"Circumstances in which inferences may be drawn from accused's failure to mention particular facts when questioned, charged,              etc.

3. (1) Where, in any proceedings against a person for an offence, evidence is given that the accused

(a) at any time before he was charged with the offence, on being questioned by a constable trying to discover whether or by whom              the offence has been committed, failed to mention any fact relied              on in his defence in those proceedings; or

(b) on being charged with the offence or officially informed that he might be prosecuted for it, failed to mention any such fact,              being a fact which in the circumstances existing at the time the              accused could reasonably have been expected to mention when so              questioned, charged or informed, as the case may be,              paragraph (2) applies.

(2) Where this paragraph applies

(a) the court, in determining whether to commit the accused for trial or whether there is a case to answer,

(b) a judge, in deciding whether to grant an application made by the accused under Article 5 of the Criminal Justice (Serious              Fraud) (Northern Ireland) Order 1988 (application for dismissal              of charge where a case of fraud has been transferred from a              magistrates' court to the Crown Court under Article 3 of that              Order), and

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

may

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

(ii) on the basis of such inferences treat the failure as, or as capable of amounting to, corroboration of any evidence given against the accused in relation to which the failure is material.

(3) Subject to any directions by the court, evidence tending to establish the failure may be given before or after evidence tending to establish the fact which the accused is alleged to have failed to mention."

3. Provisions governing access to a solicitor

44. 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..."

III. OPINION OF THE COMMISSION

A. Complaints declared admissible

45. The Commission has declared admissible the applicant's complaints that the inferences drawn from his failure to answer police questioning violated his right to a fair trial and his right to be presumed innocent of the charges brought against him, that he was denied access to a solicitor and that statements from witnesses who did not testify in court were admitted in evidence.

B. Points at issue

46. 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 lack of access to a solicitor after the applicant's arrest infringed Article 6 para. 1 in conjunction with para. 3(c) (Art. 6-1+6-3-c) of the Convention;

- whether the admission of statements of witnesses who did not give oral evidence infringed Article 6 para. 1 in conjunction with para. 3(d) (Art. 6-1+6-3-d) of the Convention.

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

47. 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

48. The applicant submits that the 1988 Criminal Evidence Order has effectively abrogated the right to silence and deprived him of the presumption of innocence, since even if the accused can still remain silent, he does so at his peril. He recalls that in the case of John Murray v. United Kingdom v. the United Kingdom (Eur. Court HR judgment of 8 February 1996 Reports 1996-I no. 1 p. 30), one of the factors considered by the Court to be a safeguard in the application of Articles 4 and 6 of the 1988 Criminal Evidence Order is the requirement that the prosecution must first establish a prima facie case before adverse inferences can be drawn.  He submits that, by contrast, Article 3 is subject to no such safeguard. 

49. Whilst he accepts that a person cannot be convicted solely on the basis of an inference drawn from a failure to mention facts later relied on in defence , he contends that this is a meaningless safeguard since in no case will the prosecution fail to present some other evidence.  He refers to the limitless and comprehensive nature of the inferences which may be drawn, there being no statutory guidance as to what inferences may be "properly" drawn. He notes that the absence of legal advice does not preclude the court from drawing inferences from the applicant's silence in the face of police questioning under Article 3, as happened in this case. He further claims that the situation in which he was questioned was not one which "clearly called for an explanation", as described by the Court in its judgment in John Murray.

50. The applicant further submits that the operation of Articles 3 and 4 placed him in an impossible situation. If, as was the case, he had not answered police questions but had then agreed to give evidence following the judge calling him to do so under Article 4, inferences could be drawn against him under Article 3. If he had refused to give evidence at trial, inferences could have been drawn against him under Article 3 and Article 4. If he had in fact given an explanation to the police and had then refused to give evidence at trial, inferences could have been drawn against him under Article 4 and also under Article 3 (in circumstances where his defence counsel relies on matters not mentioned to the police). The applicant submits that he gave evidence at trial because he was under a compulsion to do so to avoid an adverse inference being drawn under Article 4, and consequently he incriminated himself to the extent that the court was able to convict him by relying on Article 3. Further, once he had been sworn, a failure or refusal to answer any question put to him could itself have led to adverse inferences being drawn against him under Articles 4(3)(b) and 4(4) of the 1988 Criminal Evidence Order and proceedings being taken against him for contempt of court. It was therefore the combination of the provisions of the Order that was material in the applicant's conviction.

51. Further, the applicant claims that the case against him was not "formidable" as it had been in John Murray, the evidence consisting largely of statements admitted under the Criminal Justice Order (which established the prima facie case against him), and that without the very strong adverse inference that was drawn, he could not have been convicted. As regards the Government's claim that the inference in this case merely went to support the view already formed by the judge as to the applicant's credibility, the applicant submits that this is not correct, the inferences drawn under Article 3 being an integral part of the decision to convict. The applicant claims that the John Murray case is further distinguishable on the basis that while Murray remained silent from the moment of his arrest, the applicant gave evidence at trial.

52. The Government submit, inter alia , that the drawing of inferences under Article 3 of the 1988 Criminal Evidence Order did not render the applicant's trial unfair or deprive the applicant of his right to be presumed innocent. They refer to the safeguards of Article 3 of the Order: that inferences may only be drawn when the fact that the accused failed to mention when questioned by police was one that he could reasonably have been expected to mention and that he later relied on in his defence ; that inferences can only be drawn in a specific and limited category of case; that before any inference can be drawn against him the accused must have been warned as to the effect of his failure to mention any facts later relied on; that the accused retains the right to remain silent and will not be liable to any criminal charge for remaining silent in the face of police questioning; that the accused shall not have a case to answer or be convicted solely on an inference drawn from his failure to mention facts later relied on (Article 2(4)); that the trier of fact has a discretion as to whether to draw inferences and, in circumstances where the trier of fact considers the accused is particularly vulnerable, can draw no inference; and that the trier of fact may only draw such inferences as appear proper which will depend on all the circumstances of the case.

53. As regards the inferences that were drawn under Article 3 of the Order in this case, the Government submit that there was a prima facie case against the applicant, based in particular on the forensic evidence against him. They contend that a central feature of the case was the fact that the trial judge did hear the applicant give evidence and concluded that the applicant's version of events was a "lying account". The inference drawn under Article 3 was that his evidence was a "complete falsehood", and the inference in this case therefore went to support the conclusion that had already been reached by the judge as to the applicant's credibility. They submit that the applicant was warned on several occasions in the course of the 1990 interviews and was well aware of the significance of his failure to mention any of the matters which he subsequently put forward in his defence .

54. The Government submit that Article 3 of the Order does not make provision, either in form or in substance, for any presumption of fact or law against the accused.  The prosecution remains obliged to prove beyond reasonable doubt all the elements of the offence charged. The Government submit that Article 3 merely enabled the trial judge to draw an inference based on common sense.

ii. Applicable principles

55. The Court in the John Murray v. the United Kingdom case (Eur. Court HR op. cit. paras. 45-47) 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.

56. In the Saunders case (Eur. Court HR Reports 1996, 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

57. The Commission observes that in this case the applicant did give evidence at his trial when called upon to do so by the judge pursuant to Article 4 of the 1988 Criminal Evidence Order. It recalls that the applicant states that he did so to avoid inferences being drawn from his silence. There was however no direct coercion by way of threat of fines or imprisonment as in the Funke and Saunders cases (see eg . Eur. Court HR Funke v. France judgment of 25 February 1993 Series A no. 256-A and Saunders v. United Kingdom judgment of 17 December 1996 Reports 1996-VI No. 24 p. 2044). Having regard to 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.

58. The Commission notes that the trial judge drew a very strong adverse inference from the applicant's failure to mention in reply to police questioning certain elements relied on in his defence , namely, he found that the applicant's assertion that at the time of the attack he had been working at McCartan's wearing a black woolly hat was a complete falsehood. It was not however the only evidence against the applicant, but one of a number of factors taken into account by the judge in reaching a finding of guilt.

59. The Commission recalls that the other factors relied on by the judge included forensic evidence (acrylic fibres found in the applicant's hair which matched the balaclava helmet found in the O'Hagans ' car and the firearms discharge residue found in the pockets of the jacket worn by the applicant when he was arrested) and his presence 5-6 miles away an hour after the attack.

60. The Commission recalls that inferences drawn under Article 3 of the Criminal Evidence Order were not in issue in the John Murray case. It notes that the purpose of Article 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- perate 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.

61. In the present case, the applicant was told by the police that he was suspected of involvement in attempted murder and he was asked to comment on the presence of firearms residue in his jacket, of fibres   in his hair and of glass fragments in the balaclavas . He refused to answer any questions. At the trial, however, the applicant gave evidence and stated that at the relevant time he had been working on McCartan's farm and indicated some reasons why firearms residue could have been found in his jacket and fibres in his hair. The judge did not accept these explanations and attached considerable weight to the fact that the applicant had given no such information when he was first heard by the police.

62. The Commission notes that the forensic evidence combined with the statements of the O'Hagans constituted important circumstantial evidence against the applicant. However, the applicant declared at the trial that he had an alibi, since he had been working at the relevant time on McCartan's farm. He also stated that he had then worn a hat which could account for the fibres in his hair. The judge did not believe that this was true. He referred in this respect to the applicant's demeanour and the way in which he had given his evidence, and he also drew a very strong inference under Article 3 of the Criminal Evidence Order from the fact that the applicant had not told the police that he had been working on McCartan's farm when the crime took place and that he had then been wearing a hat which could account for the fibres . It would in the judge's view have been the easiest thing in the world for him to have told this if he had in fact been at another place at the time of the crime. The judge therefore rejected the alibi and found the applicant guilty.

63. The Commission considers that the forensic evidence relating to gunpowder traces and linking him to the car used in the offence could be regarded, on a common sense basis, as a situation attracting considerable suspicion and reasonably allowing inferences to be drawn in light of the nature and extent of any explanations provided by the applicant. The inference drawn from the applicant's silence was thus only one of the elements upon which the judge found the charge proven beyond reasonable doubt. The Commission considers that by taking this element into account the judge did not go beyond the limits of fairness in his appreciation of the evidence in the case.

64. Consequently, the Commission is of the opinion that the proceedings did not fail to comply with the requirements of Article 6 para. 1 (Art. 6-1) as regards their fairness.

CONCLUSION

65. 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 in respect of the drawing of adverse inferences.

D. As regards Article 6 para. 2 (Art. 6-2) of the Convention

66. Article 6 para. 2 (Art. 6-2) of the Convention provides:

"2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty by law."

67. The Commission considers that the issue under Article 6 para. 2 (Art. 6-2) of the Convention is 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 para. 2 (Art. 6-2).

CONCLUSION

68. The Commission concludes, by 30 votes to 2, that there has been no violation of Article 6 para. 2 (Art. 6-2) of the Convention.

E. As regards Article 6 para. 1 in conjunction with para. 3(c) (Art. 6-1+6-3-c) of the Convention (lack of access to a solicitor)

69. 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;"

70. The applicant claims that it was particularly important in his case that he receive advice prior to being interviewed since he had already been discharged on identical charges before the 1988 Criminal Evidence Order was introduced. He was given no advice prior to the administration of the Article 3 caution and he was interviewed in breach of the domestic requirement that a person who asks for legal advice cannot be interviewed until he has received it. Further, there was no audio or video recording of the interviews and no independent authentification of what was said. He claims that the questioning after the second arrest was clearly aimed at attempting to trigger the 1988 Criminal Evidence Order rather than the police expecting any break through during a new period of questioning.

71. He further submits that having regard to the judgment of the Court in John Murray (paras. 59-70), the facts of this case likewise disclose a violation of Article 6 para. 1 in conjunction with para. 3(c) (Art. 6-1+6-3-c), particularly since adverse inferences were drawn from his silence during police questioning and he was questioned in breach of international and applicable domestic standards.  He recalls that he was held incommunicado, and that the interviews were not subject to any audio or video recording so that the only notes of the interviews are the police notes such that there are no independent, verifiable or reliable records of the manner in which the police interviews were conducted.

72. As regards inferences drawn from the applicant's silence in the absence of a solicitor, the Government submit that the absence of a solicitor does not per se lead to the conclusion that there has been a violation of the Convention.  Rather, each case must be judged on its own facts to determine whether the lack of consultation with a solicitor in fact rendered the proceedings as a whole unfair. They claim that in this case the absence of a solicitor did not lead to unfairness because if it had done so, that would have been taken into account by the court when it exercised its discretion. Further, they submit that the  applicant's attitude throughout his interviews was to completely refuse to answer any question put to him and that remained the case even after he had consulted his solicitor. The Government refer to the finding of the judge that since by the 1990 interviews the applicant knew the nature of the case against him, it would have been the easiest thing in the world for the applicant to mention the facts that he subsequently relied on. Equally, he knew the possible consequences of not mentioning them. They rely on the findings of the domestic courts that the applicant did not require any legal advice in this respect. They also point out that in this case there was not a refusal of access to a solicitor as in the John Murray case, but a failure to defer the interview pending the arrival of the solicitor. It was unchallenged at the applicant's trial that if the applicant had asked for a postponement the interview would have been immediately stopped.

73. The Commission recalls that in John Murray the Court found a violation of Article 6 para. 1 in conjunction with Article 6 para. 3(c) (Art. 6-1+6-3-c) in that the applicant was denied access to his solicitor for the first 48 hours of police detention in a situation where the rights of the defence risked irretrievable prejudice. It held that the scheme contained in the Order was such that it was of paramount importance for the rights of the defence that an accused had access to a lawyer at the initial stages. It noted the fundamental dilemma facing an accused, since if he chose to remain silent adverse inferences could be drawn against him, while if he broke his silence, he ran the risk of prejudicing his defence without necessarily removing the possibility of inferences being drawn against him (see paras. 66-70).

74. In the present case, the Commission observes that the applicant was not as such refused access to a solicitor. It appears that the solicitor was not immediately available and the police took the decision not to defer the interview until his arrival. While it was asserted at the applicant's trial that the police would have agreed to postpone the interview if the applicant had so requested, the Commission is not persuaded that this is sufficient to distinguish the situation from that pertaining in the John Murray case. The applicant had requested to see his solicitor and in view of the police decision to continue with questioning it is not realistic to expect the applicant to have taken the initiative in proposing that the interview nonetheless be postponed. The Commission notes in this regard that according to the published guidelines a person who asks for legal advice may not be interviewed until he has received it.

75. The Commission recalls that without having had access to his solicitor, the applicant was cautioned pursuant to Article 3 of the Order and following his failure to reply to questions, strong adverse inferences were later drawn at his trial.  It is therefore of the opinion that the applicant was directly affected by the denial of access to his solicitor and that the rights of the defence were prejudiced in a manner incompatible with Article 6 (Art. 6).

CONCLUSION

76. The Commission concludes, by 30 votes to 2, that there has been a violation of Article 6 para. 1 in conjunction with para. 3(c) (Art. 6-1+6-3-c) of the Convention as regards the applicant's lack of access to a solicitor.

F. As regards Article 6 para. 1 in conjunction with para. 3(d) (Art. 6-1+6-3-d) of the Convention (admission of written statements in evidence)

77. Article 6 para. 3(d) (Art. 6-3-d) of the Convention provides:

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

d. to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him"

78. The applicant submits that the rights of the defence were significantly and substantially impaired by the fact that the defence was not able to cross-examine the O'Hagans . He submits that it is not correct to assert that the evidence of the O'Hagans was not of crucial importance or of a controversial nature. He refers to the statement of the Government in their observations that "it provided the link" without which a conviction could not have been sustained and notes that on 29 September 1988, prior to the Criminal Justice Order coming into force, the evidence was not admissible and the applicant was therefore discharged for lack of evidence against him. He avers that in the circumstances it was vitally important that the witnesses be subjected to extensive and rigorous cross-examination. Further, the applicant claims that it is not proper for the Government to assert that the O'Hagans had no conceivable motive for imagining or inventing a story in circumstances where the defence had no opportunity to examine their motivation, reliability or truthfulness by cross-examination.

79. The Government submit that the proceedings taken as a whole were not rendered unfair by the inability of the applicant to cross-examine those witnesses, who did not give evidence due to fear for their safety. They emphasise the fact that when assessing whether it is in the interests of justice to admit a statement, the court is under a duty to consider the possibility of unfairness to the accused, and in particular whether it is likely to be possible to controvert the statement if the maker of the statement does not give oral evidence.  They submit that in this case the trial judge, with whom the Court of Appeal agreed, considered this issue and concluded that it would be in the interests of justice to admit the statements of the O'Hagans and that no unfairness to the accused would result from their admission.  The Government refer to the fact that the statements were taken very shortly after the shooting incident, that they were internally consistent and that the witnesses themselves had no conceivable motive for making up the facts contained therein. They submit that the evidence provided by the statements merely constituted the link between the Peugeot car, the balaclavas and the shooting incident. The only possible way of challenging the evidence would have been to claim that the witnesses had fabricated their entire account, which was never suggested by the defence . Thus the evidence was not evidence that needed to be tested by oral examination and its admission did not render the trial unfair.

80. The Commission recalls that in principle the adversarial principle and respect for the rights of the defence require that an accused have the opportunity to hear the evidence against him and to challenge that evidence through examining the witnesses against him ( eg . Eur. Court HR Lüdi v. Switzerland judgment of 15 June 1992 Series A no. 238 para. 49). Any restrictions must be limited to those "strictly necessary" (see eg . Eur. Court HR Van Mechelen v. Netherlands judgment of 23 April 1997 Reports 1997 para. 58) and any handicaps  under which the defence labours must be sufficiently counterbalanced by the procedures followed by the judicial authorities ( ibid , para. 54). Whether or not there are safeguards in place mitigating the effect of the restrictions, it is not compatible for a conviction of an accused to be solely, or to a decisive extent, based on evidence of witnesses whom the applicant has not had an effective opportunity to challenge ( eg . Eur. Court HR Doorson v. Netherlands judgment of 26 March 1996 Reports 1996-II p. 471 para. 72).

81. The Commission notes that in the present case the O'Hagans refused to give evidence at the magistrates' court due to fear and at the later trial on the purported grounds of objection to non-jury trials. In either case, the Commission finds, in view of the circumstances and having special regard to the security situation in Northern Ireland, that the authorities cannot be considered at fault as regards their non-appearance at the trial. As regards the role played by the O'Hagans ' evidence in the written statements admitted at the trial, the Commission considers that while it was important in that it established the link between the gunmen who committed the offence and the car in which forensic evidence was found, it was of an indirect character and, moreover, did not play a decisive role in the applicant's conviction. It recalls that the elements relied on by the courts were the forensic evidence of firearms residue in the applicant's jacket, the fibres in his hair matching the balaclava in the Peugeot car, the applicant's presence in the general vicinity of the crime and the strong adverse inferences drawn under Article 3. The trial judge also had the opportunity to assess the credibility of the applicant and his alibi witness in the witness box.

82. The Commission further notes that the issue of the fairness to the applicant to admit the written evidence was examined both at the trial and on appeal. It finds that the applicant was thus afforded the opportunity to have put forward on his behalf any matters pertinent to the use of the written statements in evidence by the prosecution. This could have included any allegations as to the unreliability or lack of credibility of the statements or any other factor which would have supported the view that the statements should not be admitted where it was not possible to obtain oral evidence from the witnesses themselves.  The Commission finds no indication of arbitrariness in the way in which the courts examined and ruled on the arguments presented or assessed the credibility and reliability of the statements. Indeed, the applicant has not presented any argument before the Commission which would indicate any basis on which the written statements of the O'Hagans could be regarded as tainted, either in their contents or by the way in which they were obtained.

CONCLUSION

83. The Commission concludes, by 29 votes to 3, that there has been no violation of Article 6 para. 1 in conjunction with para. 3(d) (Art. 6-1+6-3-d) of the Convention as regards the admission of written statements in evidence.

G. Recapitulation

84.  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 in respect of the drawing of adverse inferences (para. 65).

85.  The Commission concludes, by 30 votes to 2, that there has been no violation of Article 6 para. 2 (Art. 6-2) of the Convention (para. 68).

86.  The Commission concludes, by 30 votes to 2, that there has been a violation of Article 6 para. 1 in conjunction with para. 3(c) (Art. 6-1+6-3-c) of the Convention as regards the applicant's lack of access to a solicitor (para. 76).

87. The Commission concludes, by 29 votes to 3, that there has been no violation of Article 6 para. 1 in conjunction with para. 3(d) (Art. 6-1+6-3-d) of the Convention as regards the admission of written statements in evidence (para. 83).

        M. de SALVIA                        S. TRECHSEL

         Secretary                  President

      to the Commission                   of the Commission

(Or. English)

CONCURRING OPINION OF MR N. BRATZA

I have with some hesitation voted in favour of the majority's conclusion that there has been no violation of Article 6 para. 1 of the Convention in respect of the drawing of adverse inferences from the applicant's silence when questioned by the police.

I see force in the view of certain members of the Commission that the case against the applicant was not on its face as strong as that which was considered by the Court in its John Murray judgment (Eur. Court H.R., John Murray v. the United Kingdom judgment of 8 February 1996, Reports and Judgments and Decisions 18 1996-I, p. 30) and that, unlike the applicant in that case, the present applicant had not maintained total silence throughout but had when initially detained by the police given a general account of his movements at the time of the offence in question.  Moreover, in contrast to the applicant in the earlier case, the present applicant gave evidence at his trial, which although more detailed then his original account to the police, was consistent with that account.

In addition, it is a matter of concern that the applicant did not in the event have access to a legal adviser before deciding whether to remain silent in the face of police questioning.  I remain of the view expressed in my partly concurring opinion in the John Murray case that the fact that an accused has access to legal advice before being required to take such a decision is a significant safeguard against unfairness in the drawing of adverse inferences from the accused's silence.

I have, however, in the end been persuaded that the drawing of such inferences under Article 3 of the 1988 order did not in all the circumstances deprive the applicant of a fair trial, for substantially the reasons given in the majority opinion.  In this regard I attach particular importance to the following factors:

( i ) as noted by the Court in the John Murray case, the drawing of inferences under the 1988 Order is subject to an important series of safeguards designed to respect the rights of the defence and to limit the extent to which reliance can be placed on inferences.  In particular:

(a) before inferences can be drawn, appropriate warnings must have been given as to the legal effects of maintaining silence;

(b) the prosecution must first establish a prima facie case against the accused, ie . a case consisting of direct evidence which, if believed and combined with legitimate inferences based upon it, could lead a properly directed jury to be satisfied beyond reasonable doubt that each of the martial elements of the offence is proved;

(c) the trial judge has a discretion whether, on the facts of the particular case, an inference should be drawn and, since in Northern Ireland a trial judge sits without a jury and must explain his reasons for the decision to draw inferences and the weight attached to them, the exercise of that discretion is subject to review by the appellate courts;

(d) while an adverse inference under Article 3 of the 1988 Order may be drawn even in a case where an accused has not had access to a solicitor prior to his interview by the police, the denial of such access in breach of the provisions of Section 15 of the Northern Ireland (Emergency Provisions) Act 1987 may justify a judge in refusing to draw an adverse inference under the Article.

(ii) the adverse inferences from the applicant's silence in the present case were by no means the only evidence against the applicant.  The forensic evidence relating to the firearms residue found in the applicant's jacket and the fibres found in his hair, combined with the statements of the O'Hagans , constituted important circumstantial evidence against him.  Further, the trial judge who had the invaluable advantage of seeing the applicant and Mr McCartan in the witness box had no hesitation in rejecting their alibi evidence as false: the trial judge concluded from the applicant's demeanour and from the way in which he gave his evidence that he had given a lying account as to what he was doing at the relevant time on 13 April 1988; as to Mr McCartan , the trial judge found it to be "patently obvious" from his demeanour and way of giving evidence that he was lying and that he had come into the witness box to give a totally untruthful account of what had happened on that date in order to assist the applicant.

(iii) there is, as in the John Murray case, no suggestion that the applicant failed to understand the significance of the caution given to him pursuant to Article 3 of the 1988 Order before he was advised by his solicitor.  Moreover, in contrast to the applicant in that case, the present applicant was not denied access to a solicitor, the police having attempted to contact one on his behalf.  In addition, as noted in the judgment of the Court of Appeal, Detective Inspector Cardew was not challenged when he said in evidence that if the applicant had asked for a postponement in order to enable him to consult a solicitor he would have immediately stopped the interview.

For these reasons, I agree with the majority of the Commission that the drawing of adverse inferences from the applicant's silence during his police interviews did not deprive him of a fair trial.

The question remains whether the fact that the applicant did not have access to a solicitor prior to his interview nonetheless gave rise to a violation of Article 6 para. 1 in conjunction with para. 3(c) of the Convention.

In the John Murray case I concluded that this question was inextricably linked with the question whether the drawing of adverse inferences against the applicant affected the fairness of his trial and that a similar finding of no violation should be reached.

However, in its judgement in that case, the majority of the Court treated the lack of access to a solicitor as giving rise to a separate issue under Article 6.  The Court held that the scheme contained in the 1988 Order is such that it is of paramount importance for the rights of the defence that an accused has access to a lawyer at the initial stages of police interrogation.  The Court noted the fundamental dilemma faced by an accused of choosing between remaining silent in the course of interrogation and thereby running the risk of adverse inferences being drawn against him, and breaking his silence, with the possible consequence of prejudicing his defence at trial.  In these circumstances the Court concluded that

"...the concept of fairness enshrined in Article 6 requires that the accused has the benefit of the assistance of a lawyer already at the initial stages of police interrogation." ( op.cit . p. 55, para 66).

I consider that this reasoning is of direct application in the present case.  It is true that, while the applicant in the John Murray case was intentionally denied access to a lawyer for the first 48 hours of police questioning, the present applicant was not as such refused access to a solicitor.  However, I do not consider that the distinction is such as to lead to a different conclusion.  I share the view of the majority of the Commission that, where a detainee has requested access to a solicitor but a solicitor is not immediately available, the interviewing of the detainee should in principle be postponed, at least for a reasonable period, until an accused has been able to receive legal advice.

Accordingly, following the judgment of the majority of the Court, I consider that there has been a violation of Article 6 para. 1 in this respect.

As regards the further issue under Article 6 para. 1 in conjunction with para. 3(d), I fully agree with the conclusion and reasoning of the Commission.

(Or. English)

PARTLY DISSENTING OPINION OF

MR S. TRECHSEL JOINED BY MR F. MARTINEZ

Contrary to the majority of the Commission, I have come to the conclusion that there has not been a violation of the right to be assisted by counsel according to Article 6 para. 3(c) of the Convention in the present case. My reasoning is as follows:

Contrary to the situation in the John Murray case, the present applicant was never actually denied access to a solicitor. He was aware of his right to counsel and the solicitor was, so to speak, on his way. Furthermore, the applicant was also aware of his right to remain silent and he made use of this right to the fullest possible extent.

Nonetheless, the question arises whether a defendant has an unfettered right to be in contact with counsel from the moment of arrest. However, I do not believe that this question must be answered in the present case. Assuming that the answer was in the affirmative, I would then have to ask what the purpose of that guarantee is. I would take the answer from the famous Miranda warning in which the first item is the right to silence. The arrestee is then made aware of his right to counsel and of the right not to make any statement before consultation with the latter.

In the present case, this is what the applicant did. He remained silent. Thus, the risk against which the right to counsel immediately after arrest is to protect, namely that the cefendant would make self-incriminating statements due to lack of information, did not materialize and no harm was done.

Two objections could perhaps be made to this approach, the first relating to the legal situation in the present case, the second relating to the Court's case-law on Article 6 para. 3(c).

The first objection would be that the applicable legislation made it possible for the trial judge to draw inferences from the defendant's silence. It would therefore be wrong to say that no harm was done by the fact that the applicant remained silent. However, I do not find this argument convincing. The applicant could consult with his solicitor. The latter could have advised him that he ought in his own interest to answer questions. Nothing would then have prevented him from contacting the police and, after explaining that he had in the meantime consulted with counsel, declare that he was now prepared to answer their questions.

As regards the second objection, in the case of Artico v. Italy (Eur. Court. HR judgment of 13 May 1980, Series A Vol. 37, para. 35, p. 17 s.) the Government had argued that the lack of assistance must have actually predjudiced an applicant for there to be a violation of Article 6 para. 3(c). The Court quite correctly answered that to ask for proof of damage would be asking the impossible: "{A}n interpretation that introduced this requirement into the sub-paragraph would deprive it in large measure of its substance. More generally, the existence of a violation is conceivable even in the absence of prejudice".

Yet, the Court does in fact look at the probability of actual damage. In the present case, it must be recalled that legal assistance was not in any way denied. The question rather ought to be whether the fact that the police started the interrogation before the solicitor had arrived constituted a violation of the applicant's right to a fair trial. For the reasons set out above I have come to the conclusion that this is not the case and I have therefore voted against the finding of a violation of Article 6 para. 3(c).

(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 para. 1 and para. 2 of Article 6 of the Convention.

As regards the role played by the O'Hagans ' evidence in the written statements admitted at the trial, it seems to me that this was of crucial importance since it established the link between the gunmen who committed the offence and the car in which forensic evidence was found.  While the issue of the fairness to the applicant of admitting written statements was subject to challenge, the rights of the defence were significantly curtailed by the fact that they were unable to cross-examine the O'Hagans .  Thus, once the statements were admitted in evidence, there was no effective way in which the applicant could challenge their contents, thereby placing the defence at a substantial and unfair disadvantage on a question of vital importance and, in consequence, undermining the fairness of the proceedings.

I consider, therefore, that there has been a violation of Article 6 para. 1 in conjunction with para. 3(d) of the Convention in respect of the admission of written statements in evidence.

Finally, I 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.

(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.

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.

(Or. English)

PARTLY DISSENTING OPINION OF MR G. RESS

I agree with the partly dissenting opinion of Mr Busuttil insofar as it relates to the admission of written statements and the applicant's complaints under Article 6 para. 3(d).