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EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 18731/91

John MURRAY

against

the United Kingdom

REPORT OF THE COMMISSION

(adopted on 27 June 1994)

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. 19-43). . . . . . . . . . . . . . . . . . . . . . . . 3

A. Particular circumstances of the case

(paras. 19-35). . . . . . . . . . . . . . . . . . . . . . 3

B. Relevant domestic law and practice

(paras. 36-43). . . . . . . . . . . . . . . . . . . . . . 6

III. OPINION OF THE COMMISSION

(paras. 44-82). . . . . . . . . . . . . . . . . . . . . . . .11

A. Complaints declared admissible

(para. 44). . . . . . . . . . . . . . . . . . . . . . . .11

B. Points at issue

(para. 45). . . . . . . . . . . . . . . . . . . . . . . .11

C. Article 6 of the Convention

(paras. 46-74). . . . . . . . . . . . . . . . . . . . . .11

1. The right to silence

(paras. 47-65) . . . . . . . . . . . . . . . . . . . . .12

Conclusion

(para. 66). . . . . . . . . . . . . . . . . . . . . .15

2. Access to a solicitor

(paras. 67-73) . . . . . . . . . . . . . . . . . . . . .16

Conclusion

(para. 74). . . . . . . . . . . . . . . . . . . . . .17

D. Article 14 of the Convention

(paras. 75-79). . . . . . . . . . . . . . . . . . . . . .17

Conclusion

(para. 79). . . . . . . . . . . . . . . . . . . . . .18

Recapitulation

(paras. 80-82). . . . . . . . . . . . . . . . . . . . . .18

CONCURRING OPINION OF MR. H. G. SCHERMERS . . . . . . . . . . . . .19

PARTLY CONCURRING, PARTLY DISSENTING OPINION OF MR. E. BUSUTTIL . .20

PARTLY CONCURRING, PARTLY DISSENTING OPINION OF MR. N. BRATZA . . .23

PARTLY DISSENTING OPINION OF MR. F. MARTINEZ. . . . . . . . . . . .26

DISSENTING OPINION OF MR. L. LOUCAIDES. . . . . . . . . . . . . . .27

APPENDIX I HISTORY OF THE PROCEEDINGS . . . . . . . . . . . .28

APPENDIX II DECISION ON ADMISSIBILITY. . . . . . . . . . . . 29

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 John Murray, a British citizen born in 1950 and

currently serving a sentence of imprisonment in HM Prison Maze,

Northern Ireland. He is represented by Messrs. Madden and Finucane,

solicitors practising in Belfast.

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

respondent Government are represented by Mr. Iain Christie as Agent,

from the Foreign and Commonwealth Office.

4. The case concerns the complaints of the applicant that he was

deprived of the right to silence in the criminal proceedings brought

against him, that he was deprived of access to his solicitor in the

first 48 hours of his detention and that his solicitor was not

permitted to be present during interviews which took place after that

initial period. The applicant alleges discriminatory treatment as

regards the latter aspect of case in that the practice concerning

access to solicitors differs between Northern Ireland and England and

Wales. The application raises issues under Article 6 paras. 1 and 2 and

Article 14 of the Convention.

B. The proceedings

5. The application was introduced on 16 August 1991 and registered

on 27 August 1991.

6. On 10 September 1992, the Commission decided to communicate the

application to the respondent Government for their written observations

on the admissibility and merits of the application.

7. The Government submitted their written observations on

25 February 1993. The applicant submitted his written observations in

reply on 7 June 1993.

8. On 30 August 1993, the Commission decided to invite the parties

to an oral hearing on the admissibility and merits.

9. At the hearing which was held on 18 January 1994, the Government

were represented by Mr. H. Llewellyn, as Agent, Mr. P. Coghlin Q.C.,

Counsel, Mr. J. Eadie, Counsel, and three advisers. The applicant was

represented by Mr. S. Treacy, Counsel, Mr. K. Winters, Solicitor, and

Ms. K. Quinlivan and Mr. L. McStay as advisers.

10. On 18 January 1994, the Commission declared the application

admissible.

11. The parties were then invited to submit any additional

observations on the merits of the application.

12. On 24 February 1994, the applicant submitted further

observations.

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:

MM. C.A. NØRGAARD, President

S. TRECHSEL

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G.H. THUNE

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.C. GEUS

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

15. The text of the Report was adopted by the Commission on

27 June 1994 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. A schedule setting out the history of the proceedings before the

Commission is attached hereto as Appendix I and the Commission's

decision on the admissibility of the application as Appendix II.

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. The applicant was arrested by police officers at 5.40 pm on

7 January 1990 pursuant to section 14 of the Prevention of Terrorism

(Temporary Provisions) Act 1989. The applicant was cautioned by the

police according to the terms of Article 3 of the Criminal Evidence

(Northern Ireland) Order 1988 (hereafter referred to as the Order),

which provides for circumstances in which inferences may be drawn from

an accused's failure to mention particular facts when questioned or

charged (see para. 36 below).

20. In response to the police caution the applicant stated, "I have

nothing to say."

21. The applicant was taken to Castlereagh Police Office at about

7.00 pm. He refused to give his personal details to the officer opening

the custody record. At 7.05 pm, he was informed of his right to have

a friend or relative notified of his detention but indicated that he

did not require that anyone be so notified. At 7.06 pm, the applicant

indicated that he wished to consult with a solicitor named

Mr. Francis Keenan. At 7.30 pm, the applicant's access to a solicitor

was delayed on the authority of a Detective Superintendent pursuant to

section 15(1) of the Northern Ireland (Emergency Provisions) Act 1987.

The delay was authorised for a period of 48 hours from the time of

detention on the basis that the Detective Superintendent had reasonable

grounds to believe that the exercise of the right of access would,

inter alia, interfere with the gathering of information about the

commission of acts of terrorism or make it more difficult to prevent

an act of terrorism (see paras. 41-42 below).

22. At 9.27 pm, a police officer saw the applicant in a cell at

Castlereagh Police Office. He further cautioned the applicant pursuant

to Article 6 of the Order (see para. 37 below) which provides for

inferences to be drawn from failure or refusal to account for presence

at a particular place.

23. The police officer served the applicant with a written copy of

Article 6 of the Order. The applicant replied, "Nothing to say."

24. At 10.40 pm, the applicant requested consultation with a

different firm of solicitors, Madden and Finucane. The reasons for the

delay in access to a solicitor were reviewed but it was concluded that

they remained valid reasons.

25. During 8 and 9 January 1990, the applicant was interviewed twelve

times by police detectives at Castlereagh Police Office. Before each

interview the applicant was either cautioned under Article 3 of the

Order or reminded that he was under caution. The applicant maintained

silence throughout these interviews.

26. When he was able to see his solicitor for the first time at

6.33 pm on 9 January 1990, he was advised to remain silent, which he

did during the following two interviews. His solicitor was not

permitted to be present during these interviews.

27. The applicant was tried by a single judge, the Lord Chief Justice

of Northern Ireland, sitting without a jury, on 8 May 1991, for several

offences including that of conspiracy to murder, aiding and abetting,

with seven other people, the false imprisonment of a certain Mr. L. and

of belonging to a proscribed organisation ie. the Provisional Irish

Republican Army (I.R.A.).

28. The Crown case was that for some time prior to January 1990

Mr. L. had been a member of the Provisional I.R.A. and had also been

giving information about the activities of the Provisional I.R.A. to

the Royal Ulster Constabulary. The Provisional I.R.A. discovered that

Mr. L. was an informer and tricked him into going to a house, 124

Carrigart Avenue, in the Lenadoon district of Belfast, on the evening

of Friday 5 January 1990. Once he was in that house, he was falsely

imprisoned on the orders of the Provisional I.R.A. and was kept captive

in one of the rear bedrooms of that house until the arrival of the

police and the army at the house on the afternoon of Sunday

7 January 1990.

29. In addition to the false imprisonment of Mr. L., the Crown also

made the case that there was a conspiracy to murder him as punishment

for being a police informer. According to L., he was forced under

threat of being killed to make a confession to his captors that he was

an informer and required to read out a written confession which was

taped. The applicant was one of the people in the house when the police

entered on 7 January and rescued Mr. L. The latter stated that on the

arrival of the police he saw the applicant pulling tape out of a

cassette. The police gave evidence that on their arrival the applicant

was at the top of the stairs while the other occupants of the house

were in a downstairs room and that, on a search of the house, tangled

tape was discovered in an upstairs bathroom. At no time did the

applicant give any explanation for his presence in that house.

30. At the close of the prosecution case, the judge, acting in

accordance with Article 4 of the Order, called upon each of the eight

accused to give evidence in their own defence. Article 4 provides that

where an accused does not then give evidence, the court or jury, in

determining whether the accused is guilty of the offence charged, may

draw such inferences from the refusal as appear proper or 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 (see para. 38 below).

31. Acting on the advice of his solicitor and counsel, the applicant

chose not to give any evidence. No witnesses were called on the

applicant's behalf. Counsel on his behalf, with some support from the

evidence of a co-accused, submitted, inter alia, that the applicant's

presence in the house just before the police arrived was recent and

innocent.

32. In finding the applicant guilty of the sole offence of aiding and

abetting the false imprisonment of L., the judge held as follows:

"I accept the submissions of counsel for the accused that as

demonstrated by his replies in cross-examination, L. is a man who

is fully prepared to lie on oath to advance his own interests and

is a man of no moral worth whatever. I, therefore, accept the

further submissions of counsel for the accused that, unless his

evidence were confirmed by other evidence, a court should not act

on his evidence, particularly against accused persons in a

criminal trial...

I now turn to consider the fifth count charging the false

imprisonment of L. against the accused . For the

reasons which I have already stated, I am satisfied that, as L.

described in his evidence, was at the top of the

stairs pulling the tape out of the cassette after the police

arrived outside the house.

I am also satisfied, for the reasons which I have already stated,

that was in the house for longer than the short

period described by . I am further satisfied that it is

an irresistible inference that while he was in the house

applicant> was in contact with the men holding L. captive and

that he knew that L. was being held a captive. I also draw very

strong inferences against under Article 6 of the

1988 Order by reason of his failure to give an account of his

presence in 124 when cautioned by the police on the evening of

7 January 1990 under Article 6, and I also draw very strong

inferences against under Article 4 of the 1988

Order by reason of his refusal to give evidence in his own

defence when called upon by the Court to do so.

Therefore I find guilty of aiding and abetting

the false imprisonment of L. because, knowing he was being held

captive in the house, he was present in the house concurring in

L. being falsely imprisoned. As Vaughan J. stated in R. v. Young

8C and P 644 at 653, 173 ER 655 at 659 cited with approval by

Cave J. in R. v. Coney (1882) 8 QBD 534 at 541,

was 'near enough to give aid and to give countenance

and assistance.'"

33. The applicant was sentenced to eight years' imprisonment.

34. The applicant appealed against conviction and sentence to the

Court of Appeal in Northern Ireland on the ground, inter alia, that the

judge had erred in holding that the words of the Article 6 caution

conformed with the requirement that an accused be told in ordinary

language what the effect would be if he failed or refused to account

for his presence at the scene of a crime.

35. In its judgment of 7 July 1992, the Court dismissed the

applicant's appeal. It held, inter alia:

"...to suggest, with respect, that went into the

house just as the police were arriving outside, immediately went

upstairs, attempted to destroy a tape and then walked downstairs,

and that this was the sum of his time and activity in the house

defies common sense...

We consider that there was a formidable case against

applicant>. He was the only one of the accused whom observed

and identified as playing a positive part in the activities

touching his captivity. 's evidence therefore called for an

answer. No answer was forthcoming of any kind to the police or

throughout the length of his trial. It was inevitable that the

judge would draw 'very strong inferences' against him."

B. Relevant domestic law and practice

Provisions governing inferences which may be drawn from an

accused's silence

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

(hereafter referred to as the Order) 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."

37. Article 6 of the Order provides as relevant:

"Inferences from failure or refusal to account for presence at

a particular place

6. (1) Where

(a) a person arrested by a constable was found by him at a place

or about the time the offence for which he was arrested is

alleged to have been committed, and

(b) the constable reasonably believes that the presence of the

person at that place and at that time may be attributable to his

participation in the commission of the offence, and

(c) the constable informs the person that he so believes, and

requests him to account for that presence, and

(d) the person fails or refuses to do so,

then if, in any proceedings against the person for the offence,

evidence of those matters is given, 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, and

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

guilty of the offence charged, may

(i) draw such inferences from the failure or refusal as

appear proper;

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

refusal as, or as capable of amounting to, corroboration of

any evidence given against the accused in relation to which

the failure or refusal is material.

(3) Paragraphs (1) and (2) do not apply unless the accused was

told in ordinary language by the constable when making the

request mentioned in paragraph (1)(c) what the effect of this

Article would be if he failed or refused to do so.

(4) This Article does not preclude the drawing of any inference

from the failure or refusal of a person to account for his

presence at a place which could properly be drawn apart from this

Article."

38. Article 4 of the Order 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."

39. In the case of R. v. Kevin Sean Murray, the Court of Appeal in

Northern Ireland were called on to consider the effect of Article 4.

On 25 October 1991, the Court of Appeal held inter alia :

"The right of the court under Article 4 to draw 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

`confession and avoidance' situation. But whether 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. ...

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 onw 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."

40. Lord Slynn in the leading judgment of the House of Lords given

on 29 October 1992 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. the 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 common sense allow the drawing of an inference

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

Provisions governing access to a solicitor

41. 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."

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

rank of superintendent (sub-section (5)(a) and the detained person must

be told the reason for the delay (subsection (7)). The maximum delay

is 48 hours.

43. The courts in Northern Ireland have taken the view that the

provisions of the 1988 Order should not be read subject to section 15

of the 1987 Act above. In the case of R. v. Dermott Quinn, the trial

judge in his judgment of 23 December 1991 rejected a submission to the

effect that an adverse inference under Article 3 of the 1988 Order

should not be drawn where the accused had asked for access to his

solicitor but been interviewed by the police before his solicitor

arrived to advise him. He noted that the 1988 Order had come into force

after section 15 of the 1987 Act and considered that Parliament had not

intended 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

to access to legal advice given by section 15. In its judgment of

17 September 1993, the Court of Appeal in Northern Ireland upheld the

trial judge's ruling, finding no unfairness in the circumstances of the

case in drawing an adverse inference in respect of the accused's

failure to respond to questions by the police before the receipt of

legal advice from his solicitor. In rejecting the applicant's

application for leave to appeal to the House of Lords, it commented

that a breach of section 15 might in certain circumstances allow the

trial judge in his discretion to refuse to draw an adverse inference

under Article 3 of the 1988 Order.

III. OPINION OF THE COMMISSION

A. Complaints declared admissible

44. The Commission has declared admissible the applicant's complaints

that he was deprived of the right to silence in the criminal

proceedings brought against him; that he was denied access to his

solicitor for 48 hours after arrest and subsequent to that time his

solicitor was not allowed to attend the applicant's interviews with the

police; and that the practice in Northern Ireland of excluding

solicitors from interviews, which differs from that followed in England

and Wales, is discriminatory.

B. Points at issue

45. The issues to be determined are:

- whether there has been a violation of Article 6 para. 1

(Art. 6-1) and/or para. 2 (Art. 6-2) as regards the applicant's

right to silence;

- whether there has been a violation of Article 6 para. 1 in

conjunction with Article 6 para. 3 (c) (Art. 6-1+6-3-c) of the

Convention as regards the applicant's lack of access to a

solicitor;

- whether there has been discrimination contrary to Article 14

in conjunction with Article 6 (Art. 14+6) in the Convention.

C. Article 6 (Art. 6) of the Convention

46. The provisions of Article 6 (Art. 6) relevant to the examination

of this application provide as relevant:

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

"In the determination 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..."

Article 6 para. 2 (Art. 6-2):

"Everyone charged with a criminal offence shall be presumed

innocent until proved guilty according to law."

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

"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;"

1. The right to silence

47. The applicant submits that the 1988 Order, which permits

inferences to be drawn from the failure of an accused to answer police

questions or to give evidence, and the reliance placed upon it by the

trial judge in the instant case, violate Article 6 para. 1 (Art. 6-1)

of the Convention. The very strong inferences drawn by the trial judge

in the applicant's case played a crucial role in his conviction. It is

submitted that it is a generally recognised principle of international

law that an accused person cannot be required to incriminate himself,

that Article 6 (Art. 6) of the Convention enshrines this principle, and

that the drawing of an incriminating inference from an accused's

failure to give evidence infringes his right to a fair trial.

48. The applicant also submits that the drawing of an incriminating

inference from the failure of an accused person to give evidence has

the effect of placing the burden of proof on an accused and is

manifestly inconsistent with the presumption of innocence guaranteed

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

49. The Government submit that the provisions of the 1988 Order did

not operate to deprive the applicant either of a fair hearing contrary

to Article 6 para. 1 (Art. 6-1) or of the presumption of innocence

contrary to Article 6 para. 2 (Art. 6-2). They refer to the safeguards

provided in the Order: no inference may be drawn unless the

suspect/accused has been warned in advance of the possible effect;

before any inference is drawn, the prosecution must have established

a prima facie case against the accused; the judge has a discretion

whether to draw an inference and is limited to drawing only such

inferences as may be proper. The Order, in the Government's submission,

merely allows the trier of fact to draw such inferences as common sense

dictates. In the present case, there was a formidable case against the

applicant which called for evidence from the applicant if there was an

innocent explanation for his conduct. Furthermore, the burden of proof

remained throughout on the prosecution.

50. The Commission observes that the right to silence is not

expressly guaranteed in the provisions of Article 6 (Art. 6) of the

Convention.

51. In the case of Funke (Eur. Court H.R., Funke judgment of

25 February 1993, Series A no. 256-A, p. 22, para. 44), the Court held,

in the context of a prosecution of an applicant for refusing to

disclose incriminating documents at the request of the customs

authorities, that the "special features of customs law ... cannot

justify such an infringement of the right of anyone 'charged with a

criminal offence', within the meaning of this expression in Article 6

(Art. 6), to remain silent and not to contribute to incriminating

himself".

52. The Court appears in the above passage to find that the right to

silence and the privilege against self-incrimination are an inherent

part of the protection given to an accused under Article 6 para. 1

(Art. 6-1).

53. In the case of Saunders (No. 19187/91, Comm. Rep. 10.5.94), the

Commission found a violation of Article 6 para. 1 (Art. 6-1) where the

applicant had been compelled under threat of penalty to make

incriminating statements to Department of Trade and Industry Inspectors

and that information given to them had been used against him in a

subsequent criminal prosecution. It considered (at para. 72):

"In the Commission's opinion, the privilege against self-

incrimination is an important element in safeguarding an accused

from oppression and coercion during criminal proceedings. The

very basis of a fair trial presupposes that the accused is

afforded the opportunity of defending himself against the charges

brought against him. The position of the defence is undermined

if the accused is under compulsion, or has been compelled, to

incriminate himself. The privilege against self-incrimination is

also closely allied to the principle of presumption of innocence

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

that it reflects the expectation 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."

54. The Government argue that there is a very clear and sharp

distinction between the circumstances in which a person is forced,

subject to a penalty by fine or imprisonment, to provide incriminating

information and the situation where a judge exercises a discretionary

power to draw inferences. In the present case, they submit that the

applicant was not deprived of his right to silence, being entitled to

remain silent and facing no penalty for doing so.

55. The applicant submits that the right to silence conferred on an

accused becomes worthless if the exercise of the right constitutes

evidence against him, as it did in this case. He adopts the

observations of Amnesty International in its paper concerning the right

to silence, where it is argued, inter alia:

"Moreover a system which permits such compulsion - and permitting

adverse inferences to be drawn is an effective means of

compulsion - is also inconsistent with the right not to be

compelled to testify against oneself or to confess guilt because

the accused is left with no reasonable choice between silence -

which will be taken as testimony against oneself - and

testifying." (Fair Trial Concerns in Northern Ireland : the Right

of Silence, AI Index: EUR 45/02/92)

56. While the Commission in the Saunders case (loc. cit.) found a

violation, it agreed with the Government's argument to the extent that

it accepted that the right to silence may not be unqualified. The

essential issue under Article 6 para. 1 (Art. 6-1) remains, in the

Commission's view, whether an applicant received a fair trial. Whether

a particular applicant has been subject to compulsion to incriminate

himself in such a way as to render the criminal proceedings unfair or

as to deprive him of the presumption of innocence will depend on an

assessment of the circumstances of the case as a whole.

57. In the present case, the Commission recalls that the applicant

did not make any statements to the police and that he did not give

evidence in court. It is therefore apparent that the applicant

exercised his right of silence and, unlike the applicant in the

Saunders case (loc. cit.) did not provide any incriminating evidence

to be used against himself. No penalty was imposed on the applicant for

exercising that right. The applicant was however under indirect

pressure to give evidence as a result of the threat of the adverse

inferences which could be drawn and which might contribute towards

securing his conviction. The Commission must therefore examine the role

which adverse inferences played in the criminal proceedings brought

against the applicant. In this examination it considers that the issues

arising as regards any effects on fairness or the presumption of

innocence represent aspects of the same complaint that are so closely

connected that they cannot usefully be separated. It will therefore

consider both aspects together.

58. The Commission notes that, in convicting the applicant, the trial

judge drew "very strong inferences" from the applicant's failure to

give an account to the police of his presence in the house where L. was

imprisoned (pursuant to Article 6 of the Order) and also from his

refusal to give evidence in his own defence when called upon by the

Court to do so (pursuant to Article 4 of the Order). The inferences

were however not the sole evidence against the applicant. Inferences

from a failure to give explanations or evidence in court only become

permissible under the Order when there is a prima facie case, ie. the

prosecution has submitted material which might lead to the conviction

of the accused. It is apparent that, if the prosecution fails to make

such a case to the court's satisfaction, the question of inferences

will never arise. Moreover the Commission is satisfied that the burden

of proof remains on the prosecution throughout to prove an accused's

guilt beyond a reasonable doubt. However, where a prima facie case has

been presented to the court, certain conclusions may always be drawn

from the failure of the accused to rebut in defence the evidence

against him.

59. Further, the Commission notes that a judge is not required to

draw inferences and may only draw such inferences, and such degree of

inferences, as may be proper. In the context of Northern Ireland where

judges sit without a jury, a judge gives a reasoned judgment as to the

basis on which he decides to draw adverse inferences and the weight

which he gives them. Whether he has properly exercised his discretion

may then be examined on appeal by the Court of Appeal in Northern

Ireland.

60. In the present case, the Commission recalls that, in accordance

with the requirements of the Order, the applicant was warned in effect

that there was a prima facie case against him, ie. a basis on which he

could be convicted, and that, if he did not answer it, inferences might

then be drawn. The Commission notes that there was evidence against the

applicant in the testimony of L. as to the applicant's involvement and

in the statements of the police who had found the applicant at the top

of the stairs in the house and in the mangled tape in the bathroom

nearby. Both the trial judge and the Court of Appeal considered that

this constituted a formidable case against the applicant in relation

to the charge of aiding and abetting the false imprisonment of L. The

applicant however did not give evidence in court to counter the

prosecution case. The Commission finds that the adverse inferences

drawn against him as a result were a formal expression of the

inevitable doubt that no innocent explanation for conduct may exist

where an accused, against whom considerable suspicion already lies,

fails to offer any innocent explanation.

61. It is submitted on behalf of the applicant that he was advised

to remain silent both in the police detention and in the court. By the

time the solicitor was permitted access to the applicant, the applicant

had already failed to respond to the Article 6 caution and therefore

if he had given a statement to the police it would still have been

possible for inferences to be drawn from the earlier silence. Further

it is stated that the solicitor was also motivated to give the advice

to remain silent since he could not be present to safeguard the

applicant's position during the following interviews. As to the

applicant's remaining silent in court, the applicant submits that since

he had been silent in police detention this would have furnished

grounds if he gave evidence in court for Article 3 inferences to come

into play, ie. failure to mention facts which were later relied on in

his defence. On this view the applicant's position was irrevocably

prejudiced from his initial silence when cautioned by the police in the

first hours of his detention.

62. There is no suggestion in the present case however that the

applicant failed to understand the significance of the warnings given

to him pursuant to the 1988 Order before he was advised by his

solicitor. The caution under Article 6 is also subject to the

limitation that it may only be given where a police officer has

reasonable belief that the presence of a person at a particular place

or at a particular time may be attributable to his participation in the

offence alleged to have been committed there. In light of the

applicant's presence in a house where a suspected I.R.A. informer was

being held prisoner and interrogated, the Commission does not consider

that the application of this provision to the applicant was arbitrary

or unreasonable. To the extent that the applicant complains of the

restrictions of his access to his solicitor during his detention by the

police and the way this impinged on his defence, the Commission

proposes to examine this issue separately (see paras. 67-73 below).

63. The Commission has also considered the significance of the fact

that the applicant would, if he had given evidence in his defence, have

been required to do so on oath. It appears from the submissions of the

parties that a conviction for perjury if an accused lied rather than

incriminated himself would be possible - one example of a prosecution

has been supplied to the Commission by the applicant. However this case

concerned an exceptional situation where both the accused and a police

officer were involved in giving alleged perjured testimony to the court

and were also facing charges of conspiracy to pervert the course of

justice. It has not been established before the Commission that the

risk of a prosecution for perjury in respect of the evidence given by

the accused in his own defence is a real or significant one. The

situation is therefore in essence not very different from that which

obtains in other countries where the accused may not testify on oath

and where his refusal to answer questions or to account for certain

facts may be an important element in the evaluation of the evidence

against him. In any case, the Commission does not find that the conduct

of the applicant in the present case with regard to his decision not

to give evidence in court was influenced by any fear of prosecution.

64. The Commission is of the opinion that the provisions of the 1988

Order constitute a formalised system which aims at allowing common

sense implications to play an open role in the assessment of evidence.

The Commission finds no indication on the facts of this case that it

deprived the applicant of the right to silence or that the consequences

which flowed from his exercise of that right were unfair.

65. Consequently, the Commission finds that the applicant was not

deprived of a fair trial contrary to the requirements of Article 6

para. 1 (Art. 6-1) of the Convention nor that his right to presumption

of innocence was violated contrary to Article 6 para. 2 (Art. 6-2) of

the Convention.

Conclusion

66. The Commission concludes, by 15 votes to 2, that there has been

no violation of Article 6 para. 1 (Art. 6-1) or para. 2 (Art. 6-2) of

the Convention as regards the applicant's right to silence.

2. Access to a solicitor

67. The applicant complains that he was denied access to a lawyer at

a critical stage of the criminal proceedings brought against him. He

submits that in Northern Ireland the preliminary investigations by the

police take on special importance in light of the provisions of the

1988 Order which allow inferences to be drawn if an accused fails to

respond to certain questions or to mention certain facts later relied

on in his defence. During the period of 48 hours before he was allowed

to see a solicitor, he was interviewed ten times by the police, while

after he had seen his solicitor he was interviewed twice more by the

police in the solicitor's absence. This, in the applicant's submission,

influenced the position of the defence and affected the fairness of his

trial contrary to Article 6 paras. 1 and 3 (c) (Art. 6-1) (Art. 6-3-c)

of the Convention, particularly in view of the "very strong inferences"

which were drawn by the judge from the applicant's failure to give an

explanation to the police of his presence in the house where L. was

held captive.

68. The Government contend that the 48 hour delay did not

disadvantage the applicant in the conduct of his defence. His position

was one of resolute refusal to answer questions both before and after

he saw his solicitor and his position was not prejudiced or affected

in any way. As regards the refusal of permission to the applicant's

solicitor to be present during the subsequent interviews with the

police, the Government state that this too did not affect the conduct

of the applicant's defence and disclosed no violation of Article 6

(Art. 6) of the Convention.

69. The Commission recalls that the Convention does not expressly

guarantee the right of an accused to communicate freely with his

defence counsel for the preparation of his defence or otherwise, or for

the defence counsel to be present during pre-trial examinations.

Article 6 para. 3 (c) (Art. 6-3-c), which reflects a specific aspect

of the general concept of a fair trial set out in the para. 1 of the

same Article (Art. 6-1), confers the right on an accused to defend

himself through legal assistance. The Commission recalls that the

Convention is intended to guarantee rights which are not theoretical

or illusory but rights that are practical and effective; this is of

particular relevance to the rights of the defence given the prominent

place held in a democratic society by the right to a fair trial (see

eg. Eur. Court H.R., Artico judgment of 13 May 1980, Series A no. 37,

p. 16, para. 33). Restrictions on an accused's access to his lawyer and

the refusal to allow the lawyer to attend during examinations of his

client may influence the material position of the defence at the trial

and therefore also the outcome of the proceedings. The Court and the

Commission have accordingly considered that guarantees of Article 6

(Art. 6) normally extend to an accused the right to assistance and

support by a lawyer throughout the proceedings (see eg. Can v. Austria,

No. 9300/81, Comm. Rep. 12.7.84, Eur. Court H.R. Series A no. 96,

p. 15 et seq., paras. 49 et seq.; Eur. Court H.R., Imbroscia judgment

of 24 November 1993, Series A no. 275, paras. 59-61, and Comm. Rep.

14.5.92, Series A no. 275, p. 23 para. 65).

70. In the absence, however, of an express provision it cannot be

excluded that the right of access to and support by a lawyer during

proceedings may be susceptible of restrictions. Regard must be had to

the circumstances of the case, including the nature, duration and

effect of any restriction, to determine whether, in the context of the

proceedings as a whole, an accused has been deprived of a fair hearing.

71. In the present case, the Commission recalls that, as the

Government point out, the applicant remained silent both before and

after he had seen his solicitor. It appears however that the solicitor

gave the advice to the applicant to maintain his silence, partly

because he had already been silent and Article 6 was already triggered

and partly because he would not be able to attend the interviews to

ensure their fairness. The Commission notes that the applicant's

silence during his detention by the police also had significance for

the conduct of his trial in that, if he chose to give evidence in his

defence, Article 3 would have permitted inferences to be drawn from his

failure to mention any facts relied on in his defence to the police.

The domestic case-law indicates that silence by an accused in police

detention prior to his receiving the advice of his solicitor is not

generally excepted from the drawing of inferences under the 1988 Order

(cf. para. 43 above).

72. The fact that, according to the 1988 Order, adverse inferences

could be drawn from the applicant's failure to answer questions by the

police or to account for certain facts already at the pre-trial stage

is an element which made it particularly important for the applicant

to be assisted by his solicitor at an early stage.

73. The Commission is therefore of the opinion that in the present

case the applicant's rights of defence were adversely affected by the

restrictions on his access to a solicitor and that these restrictioons

were not in conformity with his right to a fair hearing under Article 6

para. 1 (Art. 6-1) and his right to legal assistance under Article 6

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

Conclusion

74. The Commission concludes, by 13 votes to 4, that there has been

a violation of Article 6 para. 1 in conjunction with Article 6

para. 3 (c) (Art. 6-1+6-3-c) of the Convention as regards the

applicant's lack of access to a solicitor.

D. Article 14 (Art. 14) of the Convention

75. 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."

76. The applicant submits that the practice regarding access of

solicitors to suspects in Northern Ireland is in violation of

Article 14 in conjunction with Article 6 (Art. 14+6) of the Convention.

He refers in particular to the practice whereby solicitors in Northern

Ireland are not permitted to be present at any stage while a person

arrested under prevention of terrorism provisions is being interviewed,

whereas all detained suspects in England and Wales may on request have

a solicitor present.

77. The Government state that the police in England and Wales have

powers to delay access to a solicitor similar to those of the police

in Northern Ireland in which respect there is accordingly no difference

in treatment. Insofar as there is a difference in treatment between

terrorist suspects in England and Wales and in Northern Ireland with

regard to the presence of solicitors during interviews, the Government

submit this is based solely on the geographical location at which a

person was arrested and detained and does not therefore constitute

discriminatory treatment within the meaning of Article 14 (Art. 14) of

the Convention.

78. In view of its finding in para. 74 above, the Commission does not

consider it necessary to examine the complaint that the applicant, as

a result of his denial of access to a solicitor, suffered

discrimination contrary to Article 14 in conjunction with Article 6

(Art. 14+6) (cf. mutatis mutandis eg. Eur. Court H.R. Beldjoudi

judgment of 26 March 1992, Series A no. 234-A, p. 29, para. 81).

Conclusion

79. The Commission concludes, by 14 votes to 3, that it is not

necessary to examine whether there has been a violation of Article 14

in conjunction with Article 6 (Art. 14+6) of the Convention.

E. Recapitulation

80. The Commission concludes, by 15 votes to 2, that there has been

no violation of Article 6 para. 1 (Art. 6-1) or para. 2 (Art. 6-2) of

the Convention as regards the applicant's right to silence (para. 66

above).

81. The Commission concludes, by 13 votes to 4, that there has been

a violation of Article 6 para. 1 in conjunction with Article 6

para. 3 (c) (Art. 6-1+6-3-c) of the Convention as regards the

applicant's lack of access to a solicitor (para. 74 above).

82. The Commission concludes, by 14 votes to 3, that it is not

necessary to examine whether there has been a violation of Article 14

in conjunction with Article 6 (Art. 14+6) of the Convention (para. 79

above).

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

Or. English

CONCURRING OPINION OF MR. H. G. SCHERMERS

I share the opinion of the Commission that there has been a

violation of Article 6 as regards the absence of a solicitor. However,

I am not of the opinion that full access to a solicitor is required.

The main task of the police in pre-trial investigation is to find

the truth. For that purpose it is necessary that the police obtain as

much information as possible. Interrogation of suspects may be an

important source of information. The questions arise why a solicitor

should be present at such investigation and whether his position in

pre-trial proceedings should be the same as during trial.

The main argument raised against the presence of a solicitor is

that not all solicitors are always cooperative in finding the truth.

For them, obtaining the best position for the defence during trial may

take priority over finding the truth. Often solicitors recommend

silence rather than cooperation. In the absence of a solicitor a

voluntary confession may be more easily obtained. Finding the truth

is in the general interest and in the interest of the law and should

therefore not be hampered in any way. Normally, investigation by the

police aims at establishing the facts. Legal qualifications are not

involved and therefore the presence of a legal expert may not be

necessary.

On the other hand there are at least two reasons why solicitors

should be present at any interrogation. First, the solicitor has an

interest in knowing all facts of the prosecution. It is in the

interest of a fair trial that the solicitor should hear statements of

a suspect. A police report on a detainee's statement may use different

wording and may not exactly reflect hesitations and accents in the

statement. Second, a suspect is under the full power of the police and

may easily be subject to undue pressure. To prevent such undue

pressure being exerted the presence of a solicitor is important.

In my opinion, the arguments for the presence of a solicitor at

pre-trial interrogations are stronger than those against. In order to

meet the arguments against, I would, however, be willing to accept a

fully passive presence, that is, to allow a solicitor to observe the

interrogation without permitting him to speak with the detainee.

Or. English

PARTLY CONCURRING, PARTLY DISSENTING OPINION OF

MR. E. BUSUTTIL

I share the opinion of the majority that there was in this case

a violation of Article 6 para. 1 in conjunction with Article 6

para. 3(c) of the Convention in regard to the applicant's lack of

access to a solicitor, but I am unable to endorse their conclusion that

Article 6 paragraphs 1 and 2 have not been violated in respect of the

applicant's right to silence.

The majority acknowledge in para. 52 of the Report that the Court

in Funke (ECHR Funke judgment of 25th February 1993, Series A

No. 266-A, paragraph 44) has recently held that everyone charged with

a criminal offence, within the autonomous meaning of this expression

in Article 6, is entitled to remain silent and not to contribute to

incriminating himself.

More recently still, in the case of Saunders v. the United

Kingdom (No. 19187/91, Comm. Rep. 10.5.94), the Commission itself held

by an overwhelming majority of 14 votes to 1 as follows:

"The privilege against self-incrimination is an important element

in safeguarding an accused from oppression and coercion during

criminal proceedings. The very basis of a fair trial presupposes

that the accused is afforded the opportunity of defending himself

against charges brought against him. The position of the defence

is undermined if the accused is under compulsion, or has been

compelled, to incriminate himself " (paragraph 72).

The Commission in that case then proceeded to add a rider to the

effect that whether a particular applicant has been subject to

compulsion to incriminate himself and whether the use made of the

incriminating material has rendered criminal proceedings unfair will

depend on an assessment of the circumstances of each case.

In my view, the attachment of adverse inferences to the exercise

of the right to silence in the pre-trial stage is a means of

compulsion, in that it can constitute a form of direct pressure

exercised by the police to obtain evidence from a suspect. The co-

operation of the detainee can be obtained during his interrogation with

the threat of adverse inferences being drawn against him for remaining

silent. Thus the suspect is faced with Hobson's choice - he either

testifies or, if he chooses to remain silent, he has to risk the

consequences, thereby automatically losing his protection against self-

incrimination. The situation is particularly acute in Northern Ireland

where a detained person can be kept incommunicado without access to

legal advice for a period of up to 48 hours under Section 15 of the

Northern Ireland (Emergency Provisions) Act 1987.

In the present case, the applicant was denied access to a

solicitor for 48 hours, during which time he was interviewed ten times

by the police. Furthermore, after he had been given access, he was

interviewed twice more by the police in the solicitor's absence. The

majority of the Commission rightly noted in paragraph 71 of the Report

that the applicant's silence during his detention by the police also

had significance for the conduct of his trial in that, if he chose to

give evidence in his defence at the trial stage, Article 3 of the

Criminal Evidence (Northern Ireland) Order 1988 would still have

permitted adverse inferences to be drawn from his initial failure to

mention any facts relied on in his defence to the police. The domestic

case-law demonstrates that inferences can still be drawn under the 1988

Order even were the accused was silent in police detention prior to

having access to legal advice. This being the case, the applicant's

position was irretrievably prejudiced from the time of his initial

silence in police detention before his first contact with a solicitor.

The position is further aggravated by the absence from the mandate of

Article 3 of the Order of a corresponding obligation on the police to

keep an official record or to take a tape-recording of the preliminary

questioning.

The majority considered this situation significant for the

conduct of his trial but only drew the conclusion that there was a

violation of Article 6 paragraph 1 in that the restrictions on his

access to a solicitor were not in conformity with his right to a fair

trial. Astonishingly, however, they fought shy of the further

conclusion that there was a further violation of Article 6 paragraph 1,

in that the applicant was deprived of a fair trial by the drawing of

incriminating inferences from his failure to answer questions by the

police at the pre-trial stage of the proceedings before he had had the

benefit of legal advice. To my mind, the question of access to a

solicitor is inextricably entwined with that of the drawing of adverse

inferences from pre-trial silence under police questioning while the

suspect is being held incommunicado. In the instant case, the effect

of the abridgement of the right to silence by the application of the

provisions of the 1988 Order coupled with the denial of access to a

solicitor in the early stages of detention was such as to deprive the

applicant of the benefit of a fair trial. There has, accordingly, been

a further violation of Article 6 paragraph 1 in this respect.

In parallel with this, I am of the opinion that the curtailment

of the right to silence violated the presumption of innocence contrary

to Article 6 paragraph 2 of the Convention.

All persons (whatever their antecedents) are presumed innocent

until proven guilty after a fair trial in which the prosecutor bears

the burden of proving guilt beyond a reasonable doubt. The right to

remain silent throughout the pre-trial and trial stages of the criminal

proceedings is an essential dimension of that presumption. To require

the accused to testify shifts the burden of proof from the prosecution

to the accused. To permit the drawing of incriminating inferences from

the silence of the accused dilutes the quality of the evidence required

to prove guilt since the incriminating inferences permit the court to

establish the guilt of the accused on the basis of evidence which might

otherwise be inadequate to sustain a conviction.

As far as the present case goes, the case against the applicant

(apart from the adverse inferences subsequently drawn) rested

essentially on L's evidence, the police informer who was falsely

imprisoned in the house in question and who the trial judge accepted

was a man of no moral worth and fully prepared to lie to advance his

own interests. Nevertheless, the judge preferred his evidence to that

of M, one of the co-accused, who stated that the applicant's presence

in the house at the time the police arrived was recent and innocent.

The only other evidence was that of the police officers who testified

that, at the time of their entry into the house, the applicant was half

way down the flight of stairs from the half-landing to the hall and

wearing a raincoat over his other clothes. Against this, M had stated

that the applicant, who entered the house in his company after hearing

the whining noise of police jeeps, had run up the stairs to a window

to ascertain the whereabouts of the police.

The fact that the police had observed the applicant was wearing

a raincoat as he came down the stairs is consistent with M's version

that the applicant's arrival at the house was recent. Equally material

is the fact that the authorities had found no fingerprints of the

applicant in the upstairs rooms, while they had found fingerprints of

some of the co-accused who were also in the house. Furthermore, from

forensic examinations conducted at the Northern Ireland Forensic

Laboratory nothing was found to indicate that the applicant or M had

been in close recent contact with L, while such evidence was found in

respect of some of the other co-accused.

In the circumstances of the present case, it was something of an

extravagance for the courts to describe the evidence against the

applicant, before the adverse inferences were drawn, as "formidable".

Indeed, it seems to me that it constituted, without the incriminating

inferences, insufficient proof of guilt beyond reasonable doubt.

Or. English

PARTLY CONCURRING, PARTLY DISSENTING OPINION OF

MR. N. BRATZA

I share the view of the majority of the Commission that there has

in the present case been no violation of Article 6 para. 1 and/or

para. 2 of the Convention insofar as adverse inferences were drawn by

the domestic courts from the failure of the applicant to answer police

questions or to give evidence at his trial.

I also agree with the reasoning of the majority of the Commission

in paragraphs 47-66 of the Report but would add two points by way of

amplification.

(1) In reaching the view that there has been no violation of the

Convention I attach considerable importance to the fact that adverse

inferences under the 1988 Order are drawn by a judge sitting without

a jury. Not only is a judge, by his training and legal experience,

likely to be better equipped than a lay juryman to draw only such

inferences as are justified from a defendant's silence but, as pointed

out by the Commission, a judge in Northern Ireland gives a reasoned

judgment as to the grounds on which he decides to draw inferences and

the weight which he gives to such inferences in any particular case:

whether the inferences have been properly drawn in all the

circumstances and whether proper weight has been given to them by the

trial judge is then subject to review by the Court of Appeal in

Northern Ireland. The same safeguards against unfairness do not appear

to me to exist in the case of a jury trial. When it is a jury which

must decide, without giving reasons, what adverse inferences, if any,

to draw against an accused from his silence and what weight to attach

to such inferences in arriving at a verdict, the risk of unfairness

occurring appears to me to be substantially increased, however

carefully formulated a judge's direction to the jury might be.

(2) The fact that an accused has access to legal advice before

deciding whether to remain silent in the face of police questioning is

also a significant safeguard against unfairness. In this regard I note

that in the recent Report of the Royal Commission on Criminal Justice,

the minority of the Royal Commission, who were in favour of changing

the existing rules in England and Wales to permit adverse comment on

silence in the face of police questioning, were only prepared to see

this change if the accused had at least been offered the opportunity

of taking legal advice before answering questions put by the police.

Under the 1988 Order there is no requirement that an accused

should have had access to legal advice before adverse inferences can

be drawn from his silence: on the contrary, in the case of R. v.

Dermott Quinn the Court of Appeal in Northern Ireland upheld the trial

judge's rejection of a submission to the effect that the provisions of

the 1988 Order should be read subject to Section 15 of the 1987 Act and

that an adverse inference under Article 3 of the 1988 Order should not

be drawn where an accused had asked for access to a solicitor but been

interviewed by the police before his solicitor arrived to advise him.

Nevertheless, the fact that an accused has been denied access to

a solicitor is not an irrelevant consideration, the Court of Appeal

commenting in the same case that the denial of access in breach of the

provisions of Section 15 of the 1987 Act may justify a judge in

refusing to draw an adverse inference under Article 3 of the 1988

Order. Moreover, while I consider it highly desirable that access to

legal advice should be available to an accused, it does not in my view

follow that the drawing of inferences from the silence of an accused

who has not had such access will inevitably result in unfairness:

whether it does or not will depend on all the circumstances of the

particular case.

In the present case, inferences were drawn by the trial judge

against the applicant under Article 6 of the Order by reason of his

failure to account for his presence in the house at 124 Carrigart

Avenue when cautioned by the police on the evening of 7 January 1990.

The applicant did not at the time of his caution and when deciding to

remain silent have the benefit of legal advice. However, I do not

consider that the drawing of inferences under the Article (or under

Article 4 of the Order by reason of his refusing to give evidence in

his own defence) deprived the applicant in all the circumstances of a

fair trial. In this regard I attach particular importance to the fact

that

(i) the adverse inferences were in no sense the sole evidence

against the applicant: the evidence of L. as to the applicant's

involvement, and the police evidence as to the circumstances in which

the applicant had been found in the house, gave rise to what the Court

of Appeal described as a "formidable case" against the applicant of

aiding and abetting the kidnapping of L.;

(ii) there is no suggestion that the applicant failed to

understand the significance of the caution given to him pursuant to

Article 6 of the 1988 Order before he was advised by his solicitor;

(iii) the applicant remained silent both before and after he had

seen his solicitor and there is nothing to suggest that his persistent

refusal to answer any questions put to him by the police would have

been any different had he received legal advice at an earlier stage.

For these reasons I agree with the majority of the Commission

that the drawing of adverse inferences from the applicant's silence did

not deprive him of a fair trial.

For the same reasons I regret that I cannot share the majority's

view that the applicant's defence rights were affected and that he was

deprived of a fair hearing in consequence of the restrictions placed

on his access to a solicitor.

While I accept that the guarantees of Article 6 may require that

an accused has the assistance and support of a lawyer at a pre-trial

stage including during his police interrogation, the question in each

case is whether a restriction on access to legal advice is such as to

prejudice the position of the defence at trial and thereby deprive the

accused of a fair hearing.

In the present case there is nothing in my view to suggest that

the restrictions had this effect. The applicant remained steadfastly

silent at all stages of the proceedings from the moment of his initial

arrest. His stance throughout his police interview remained unchanged

even after access to a solicitor had been granted. In these

circumstances I can find no indication that the rights of the defence

were in the present case affected by the inability of the applicant to

consult a solicitor at an early stage or by the absence of a solicitor

during his police interviews.

The applicant further complains that he has been the victim of

discrimination in breach of Article 14 read in conjunction with

Article 6 of the Convention, by reason of the difference in practice

followed in Northern Ireland and in England and Wales regarding the

presence of solicitors during interviews of detained suspects.

In my view the difference in practice is not capable of amounting

to discriminatory treatment for the purposes of Article 14. Article 14

is not concerned with all differences in treatment but only with

differences related to personal characteristics. As the Court pointed

out in its Kjeldsen, Busk Madsen and Pedersen judgment of

7 December 1976, Series A no. 23, p. 29 para. 56,

"...Article 14 prohibits, within the ambit of the rights and

freedoms guaranteed discriminatory treatment having as its basis

or reason a personal characteristic ("status") by which persons

or groups of persons are distinguishable from each other".

Insofar as there exists a difference in the treatment of detained

suspects in the two jurisdictions with regard to their access to

solicitors, this difference is not based on personal status or

characteristics but on the geographical location where the suspect is

arrested and detained. Such a difference does not amount to

discriminatory treatment within the meaning of Article 14 of the

Convention.

Or. French

PARTLY DISSENTING OPINION OF MR. F. MARTINEZ

I agree with the dissenting part of Mr. Bratza's opinion.

(Or. Eng.)

DISSENTING OPINION BY MR. L. LOUCAIDES

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 or 2 of the

Convention as regards the applicant's right to silence.

My disagreement refers to the application of the 1988 order to

the silence of the applicant during his pre-trial detention by the

police.

I had the opportunity in my dissenting opinion in the Saunders

case (Application No. 19187/91) to explain that the presumption of

innocence safeguarded under Article 6 para. 2 of the Convention entails

the right to remain silent and not to be compelled to incriminate

oneself. The right in question aims at the protection of the innocent

against abuses by law-enforcing agencies. Therefore it is particularly

important to secure this right during pre-trial police detention.

Subject to the following, I share the view of Amnesty

International (para. 55 of the Report) according to which a system

which permits adverse inferences to be drawn against an accused person

because of his silence is inconsistent with the right to remain silent.

I believe that this view should only be applicable as regards the

exercise of such right at pre-trial stages when the danger of abuses

by state organs (i.e. the raison d'être of the right) exist and not at

the stage when the accused chooses to offer no explanation to the court

after a prima facie case is made in court against him.

Apart from the danger of abuse, which I believe does not exist

at the stage of the judicial proceedings, there are other factors which

distinguish the above-mentioned two stages for the purposes of the

right in issue. In contrast with the trial stage an accused person,

when faced with the law-enforcing agencies before trial, alone and

without the legal guidance of a counsel, lacks the necessary safeguards

for an effective presentation of his version in an inherently coercive

setting in which the prosecutorial forces have the upper hand.

Although he may not be guilty he may not be in a position to establish

effectively his innocence. In this respect it is useful to recall that

the Commission found that in this case there has been a violation of

Article 6 para. 1 in conjunction with Article 6 para. 3 (c) of the

Convention as regards the applicant's lack of access to a solicitor

during the preliminary investigations by the police.

In the light of the above and in view of the fact that the

failure of the applicant to give an account to the police of his

presence in the house where L. was imprisoned, was relied on by the

trial judge in drawing "very strong inferences" against the applicant

(pursuant to Article 6 of the Order) I find there has been a breach of

the presumption of innocence which is protected in absolute terms in

Article 6 para. 2 of the Convention.

Appendix I

HISTORY OF THE PROCEEDINGS

Date Item

________________________________________________________________

16.08.91 Introduction of the application

27.08.91 Registration of the application

Examination of admissibility

10.09.92 Commission's decision to invite the parties to

submit observations on the admissibility and

merits

25.02.93 Government's observations

08.04.93 Commission's grant of legal aid

07.06.93 Applicant's reply

30.08.93 Commission's decision to invite the parties to

an oral hearing

18.01.94 Hearing on admissibility and merits

18.01.94 Commission's decision to declare the application

admissible

Examination of the merits

18.01.94 Commission's deliberations

24.02.94 Applicant's observations on the merits

13.05.94 Consideration of the state of proceedings

27.07.94 Commission's deliberations on the merits, final

votes and adoption of the Report

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MURRAY v. the UNITED KINGDOM

MURRAY v. the UNITED KINGDOM

LEXI