MURRAY v. THE UNITED KINGDOM
Doc ref: 22384/93 • ECHR ID: 001-3309
Document date: October 21, 1996
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AS TO THE ADMISSIBILITY OF
Application No. 22384/93
by Kevin MURRAY
against the United Kingdom
The European Commission of Human Rights sitting in private on
21 October 1996, 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
L. LOUCAIDES
M.P. PELLONPÄÄ
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
D. SVÁBY
G. RESS
A. PERENIC
C. BÎRSAN
P. LORENZEN
K. HERNDL
E. BIELIUNAS
E.A. ALKEMA
M. VILA AMIGÓ
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 27 April 1993 by
Kevin MURRAY against the United Kingdom and registered on 15 July 1993
under file No. 22384/93;
Having regard to :
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on
2 March 1994;
- the letter of 10 April 1996 from the applicant's representative
stating that no further observations were to be submitted.
- the supplementary observations submitted by the respondent
Government on 10 May 1996.
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a British citizen born in 1970 and presently
detained in the Maze Prison, Northern Ireland. He is represented by
Messrs. John Fahy & Company, a firm of solicitors practising in
Strabane, County Tyrone.
a. The particular circumstances of the case
The facts as submitted by the parties, and which may be deduced
from documents lodged with the application, may be summarised as
follows.
On 13 March 1989, at 07.30, W.A., a part-time soldier in the
Ulster Defence Regiment (UDR), was injured after being shot four times
by two gunmen wearing balaclava helmets over their faces.
At about 10.45 hours on the same day, the police went to the
applicant's house and asked him to account for his movements since the
previous evening. The applicant stated that he had spent the previous
night at a friend's house and that he had returned to his own house at
09.00 hours that day. When questioned about certain items of clothing,
in particular a pair of jeans which had mud on them, the applicant
explained that he had worn them when out hunting on Saturday
11 March 1989 with his father.
At 11.28 hours, the applicant was arrested under section 12 of
the Prevention of Terrorism (Temporary Provisions) Act 1984 in
connection with the shooting of W.A..
The applicant was taken to Castlereagh Police Station, where on
arrival he requested to see a solicitor. At 13.30 hours, a Detective
Superintendent authorised a delay in access to a solicitor for
48 hours, pursuant to section 15 of the Northern Ireland (Emergency
Provisions) Act 1987.
The applicant was cautioned, pursuant to Article 3 of the
Criminal Evidence (Northern Ireland) Order 1988, that a failure to
mention any fact that he later relied on in his defence in court might
be treated as supporting the case against him. He was also cautioned,
pursuant to Article 5 of the Criminal Evidence Order 1988, in respect
of adverse inferences which might be drawn from any failure to account
for items of clothing in his possession on which were marks or
substances attributable to participation in the commission of an
offence, and also in respect of fibres found in his hair from a
balaclava helmet allegedly used by one of the gunmen. The applicant
remained silent.
The applicant saw his solicitor on 15 March 1989 at 11.26 hours.
He was advised to remain silent.
On 18 March 1989, the applicant was charged with attempted murder
and possession of a firearm with intent to endanger life. He was
subsequently charged with the wounding of W.A. and possession of a
firearm for no lawful object.
On 23 March 1989, the applicant's application to be released on
bail was refused by the judge on the grounds of the serious nature of
the charges and the serious risk of the applicant not turning up for
trial.
On 28 March 1990, the applicant was committed for trial. The bill
of indictment was received at the Crown Court office on 2 May 1990. He
was arraigned on 13 June 1990 and because of the serious nature of the
charges his case was scheduled for hearing before a High Court judge.
The applicant's case was initially listed for hearing on
20 November 1990 but was postponed twice because the preceding trial
overran.
The applicant was tried before a judge sitting without a jury
from 26 to 28 November 1990.
At his trial, the applicant, on the advice of his legal advisers,
did not give evidence.
The prosecution case was founded on circumstantial evidence of
a forensic nature linking the applicant with the Vauxhall car allegedly
used by the gunmen. It consisted of the following:
(a) fresh tyre imprints at the entrance to a field just off
Ballyskeagh Road, towards which the gunmen had run, matching
those of a Vauxhall Cavalier ("the car") belonging to P.L.;
(b) behind the driver seat of the car, a sleeve of a black woollen
jumper containing two holes that would have made a balaclava type
mask, on which were found particles that were consistent with
having originated from the discharge of a cartridge;
(c) A thumb print of the applicant on the interior rear view mirror
but no evidence as to when it was made;
(d) oral evidence from P, a prosecution witness, that the applicant
had flagged the Vauxhall car down at about 1.30 am on
13 March 1989 and had got into the car to talk to B. for about
ten minutes; a written statement by P stating that the applicant
had not got into the car but had talked to E. L., the driver,
outside the car;
(e) evidence from P that on Saturday 11 March 1989 the applicant had
driven E. L. and himself to and from a dance in Omagh in the
Vauxhall car and had dropped him at home at 3 a.m.;
(f) evidence from L. L. that he had seen the applicant driving with
his brother E. L. some time at the start of March;
(g) evidence from P. L., the owner of the car, that he had seen his
son E. L. in the company of the applicant but had never seen him
in the car;
(h) 3 fibres in the applicant's hair that were microscopically
indistinguishable from the fibres of the balaclava. Two of the
fibres were further analysed and found to have been made from the
same type of acrylic material as the balaclava. One of these
was further analysed and found to be dyed with the same
combination of dyestuffs as the fibres of the balaclava.
However, these fibres were found to be indistinguishable from the
black fibres in the waistband and cuffs of an anorak or black
cotton coat belonging to the applicant. This anorak was found
by the police over the back of a chair in the applicant's house
when they visited it on the morning of the crime. The forensic
expert's conclusion was that "he would not attach particular
weight to that finding";
(i) muddy jeans;
(j) the applicant's front door key in the pocket of the muddy jeans;
(k) evidence from the victim in his statement of evidence and in
cross examination that the gunmen wore matching army type combat
trousers (not jeans);
(l) fibres on the applicant's jeans and anorak that were
indistinguishable from that of the balaclava but also matched the
black fibres of the waistband and cuffs of the anorak such that
the forensic expert did not consider much weight could be
attached to this finding;
(m) 5 fibres on the back of the anorak and the blue jeans which
matched the majority coloured fibre components in the Vauxhall's
car upholstery. Two fibres found on each of the front seats of
the car that matched the minority turquoise component of the
waistband of the anorak. Although neither the particular
Vauxhall car nor the anorak would be a unique source of the these
fibres, the forensic expert considered that these two findings
taken together strongly supported the proposition that the anorak
and jeans had been in contact with the front seats of the car.
Although the presence of the small number of fibres found on the
applicant's clothing would be consistent with "fairly recent
contact", the fibres on the front seats of the car that matched
the minority component of the waistband of the anorak could have
remained for longer than one or two days, depending on the usage
of the car and the number of people getting in and out of it.
If the car had been very little used the fibres could possibly
have been on the seats for weeks. It was feasible that the jeans
and anorak could have come either from contact with the Vauxhall
"some time ago" or alternatively from contact with other car
seats containing identical fibres.
(n) The firearms expert found nothing of significance on the firearms
swabs taken from the applicant's anorak, or other clothing taken
from him by the constable. However, she detected particles
consistent with cartridge discharge residue in the inner surface
of the waistband area of the muddy blue jeans. The discharge was
consistent with secondary transfer rather than primary discharge
residue. That meant that the particles found came from being in
contact with a source of cartridge discharge residue rather than
from initial contact with the cartridge discharge residue when
the gun was fired. She could not say positively that the
particles actually came from cartridge discharge, but only that
it was more than likely that they did. She accepted that the
particles might have fallen from the shotgun used by the
applicant and his father on Saturday 11 March when they went
shooting, but it was unlikely that the particles would have been
there after 24 hours unless the jeans had been taken off and left
undisturbed. If that had been the case however, she considered
that she would have been able to conclusively identify the
residue as cartridge discharge, which was not the case here.
(o) Evidence from the applicant's father that he and his son had been
shooting at rabbits on 11 March, 2 days before the shooting of
the UDR soldier;
On 18 January 1991, the applicant was found guilty of the
offences of attempted murder of W.A. and possession of a firearm with
intent to endanger life. He was sentenced to a total of eighteen
years' imprisonment.
The judge found the following:
(a) that the vauxhall car was used by gunmen;
(b) that the applicant was not at home at the time the crime was
committed and there was no evidence to support his assertion that
he was in B's house;
(c) that the applicant had some association with the car at 1.30 am
on 13 March;
(d) that the relationship between the applicant and the owner of the
car was a friendly and easy going one such that the applicant
could have borrowed the car for the purposes of the crime;
(e) that the applicant's left thumb print was found on the interior
rear mirror of the car and it could have been made at the
material time;
(f) that the balaclava found in the back seat of the car was
consistent with the one seen by the victim and it was left by the
gunmen and that some fibres matching it were found in the
applicant's hair and he could therefore have been wearing it;
(g) that there were fibres on the back of the applicant's jeans and
anorak that matched fibres in the car upholstery and that the
applicant had not got into the car at 1.30 am as had been claimed
by P. in his oral testimony, so that the fibres could not have
come from that alleged contact;
(h) that some firearm residue particles characteristic of secondary
transfer were found on the inner waistband of the applicant's
blue jeans and that they could have been deposited there if the
applicant or one of the gunmen had put his pistol in the
waistband of his jeans after the shooting;
(i) that the blue jeans found 3 hours after the crime were damp and
muddy and the mud was visually the same as in the area where the
car was parked;
(j) that the applicant's front door key was found in the pocket in
the jeans; and
(k) that if the victim was mistaken in his statement of evidence to
the police and in cross-examination, but not in evidence in
chief, that both gunmen were wearing combat type trousers, the
dampness and mud could have been caused by the applicant at or
about the car or in the sheugh or in the particular area.
As regards these findings the judge stated:
"Each one of these single matters is not inconsistent with the
guilty participation of the accused in the crime. Some are more
consistent with guilt than others. Not one of them, however, in
itself, proves guilt to the standard of proof required. For each
of them, as Mr. B. (the applicant's representative) stressed in
his closing speech, there may be a counterbalancing explanation
consistent with innocence. Although, in turn, some of them are
less consistent with innocence than others."
In convicting the applicant, the trial judge relied upon
Article 4 of the Criminal Evidence Order 1988, pursuant to which at the
end of the prosecution case he had called upon the applicant to give
evidence in his own defence in default of which adverse inferences
could be drawn. He also drew inferences under Article 3 of the
Criminal Evidence Order 1988 from the applicant's silence during
questioning by the police. However, he adopted a different approach
in respect of inferences that could have been drawn under Article 5,
declining to make any adverse inferences on the basis that the
applicant had given some explanations to the police prior to arrest.
The trial judge stated in regard to Article 3 of the Criminal
Evidence Order 1988 and the applicant's failure to respond to questions
by the police:
"By this silence, can it be said that he failed to mention
facts relied upon in his defence at the trial? I do not
forget that before he was cautioned under Article 3 at
Castlereagh he gave a general account of his movements to
Detective Constable Bell and explained the condition of his
jeans on the ground that he had been out "hunting" two days
before. What he omitted to do in reply to the caution under
Article 3 was to repeat these matters of his defence and to
fail to answer questions relative to their detail. He
omitted to mention at all and this to me is significant
that he had driven the Vauxhall car on the Saturday night
before the crime and that he had met up with
L.> in the early hours of the 13th. I consider that the
"could reasonably have been expected" to have
mentioned these matters at Castlereagh. The "hunting" story
could have been investigated by the police. Its forensic
significance would have been considered by the firearms
expert. The potentially damning evidence of the
fingerprint, if left unexplained, found on the car mirror
was brought home to the accused at Castlereagh in clear
language as was the evidence linking the car to the scene
of the crime. The incriminating nature of fingerprint
evidence must be well-known to any member of the public. I
would have expected a suspect when faced with this, if he
had an innocent alternative to give, to have given it.
I do not, however, in all the circumstances draw the
strongest adverse inference that one may be entitled to
draw in other cases under Article 3. My reason is that he
did disclose in general terms some of the facts relied on
in his defence. But I do find that his failure to mention
the particular matters that he did, many of which were of
the greatest importance in his defence, reduces the
credibility of his defence and increases the weight of the
prosecution case..."
In relation to the applicant's silence in court and the
application of Article 4 of the Criminal Evidence Order 1988, the trial
judge commented:
"In the instant case it seems to me that what the
prosecution has proved in evidence calls for evidence from
the accused in the witness box. No reasons have been
advanced for his refusal to give evidence. Nor are any
reasons apparent to the court for withholding his account
on oath. Indeed it seems to me remarkable he has not given
evidence. It is not the function of the court to conjure up
reasons for his silence. He has been told by the court in
plain language what the consequences of his failure may be
and he has no doubt been advised by his experienced counsel
to the same effect. It is only commonsense, in the
circumstances, to infer as proper inference that he is not
prepared to assert his innocence on oath because that is
not the case. The inference which I draw from his failure
to give evidence under Article 4 is stronger and much more
to his detriment than that drawn by me under Article 3."
The applicant appealed against his conviction, alleging inter
alia that the judge had erred in applying Article 4 of the 1988
Criminal Evidence Order in his case. The appeal was dismissed by the
Court of Appeal in Northern Ireland on 25 October 1991. Lord Chief
Justice Hutton, giving the judgment of the court, rejected the argument
by the applicant's counsel that the approach of the trial judge had the
effect of reversing the burden of proof. It found that the trial judge
had not acted improperly in drawing an inference from the applicant's
failure to give evidence:
"The right of the court under Article 4 to draw such
inferences as appear proper arises once the Crown has
established a prima facie case and does not require that
the Crown case constituted by the evidence should be `on
the brink' of proving guilt or should create a situation
which at common law would be regarded as a `confession and
avoidance' situation. But whether or not the court will
draw inferences will depend upon the circumstances of the
particular case and, if inferences are drawn, the strength
of those inferences will also depend upon the particular
circumstances of the case.
There may be cases where, despite the refusal of the
accused to give evidence when called upon by the court to
do so pursuant to Article 4, the court may think it
inappropriate to draw any inferences against him. Moreover,
before convicting, the court, having regard to the evidence
adduced by the Crown and to the inferences (if any) which
it draws under Article 4, must always be satisfied that the
Crown has discharged the burden of proving that the accused
is guilty beyond a reasonable doubt. Article 4 does not
alter the fundamental principle that the burden rests on
the Crown to prove guilt beyond a reasonable doubt.
The refusal of the accused to give evidence on his own
behalf does not in itself indicate guilt. Under Article 4
it would be improper for the court to draw the bare
inference that because the accused refused to give evidence
in his own defence he was therefore guilty. But where
commonsense permits it, it is proper in an appropriate case
for the court to draw the inference from the refusal of the
accused to give evidence that there is no reasonable
possibility of an innocent explanation to rebut the prima
facie case established by the evidence adduced by the
Crown, and for the drawing of this inference to lead on to
the conclusion, after all the evidence in the case has been
considered, that the accused is guilty...
We consider that in this case the trial judge was entitled
to draw the inference from the refusal of the appellant to
give evidence in his own defence that there was no
reasonable possibility of an innocent explanation which he
could put forward to rebut the inference which could be
drawn from the evidence adduced by the Crown, and that
accordingly the inference which the Crown submitted should
be drawn from that evidence, namely that the appellant was
one of the gunmen who used the Vauxhall car and who shot
and wounded ... was correct and that therefore the
appellant was guilty...".
While the Court of Appeal found that the trial judge had erred
in drawing an inference under Article 3 of the 1988 Criminal Evidence
Order from the failure to offer an explanation for the fingerprint (ie.
the fingerprint had not been identified as that of the applicant until
after his interviews with the police), it found that this error did not
invalidate his general findings in respect of Article 3. It concluded
that the convictions were not thereby rendered unsafe or
unsatisfactory.
The applicant was granted leave to appeal to the House of Lords.
In its judgment of 29 October 1992, the House of Lords rejected
the applicant's appeal, agreeing with the judgment of the Court of
Appeal.
Lord Slynn in the leading judgment stated:
"The accused cannot be compelled to give evidence but he
must risk the consequences if he does not do so. Those
consequences are not simply, as the appellant contends,
that specific inferences may be drawn from specific facts.
They include in a proper case the drawing of an inference
that the accused is guilty of the events with which he is
charged.
This does not mean that the court can conclude simply
because the accused does not give evidence that he is
guilty. In the first place the prosecutor must establish a
prima facie case - a case for him to answer. In the second
place in determining whether the accused is guilty the
judge or jury can draw only `such inferences from the
refusal as appear proper'. As Lord Diplock said in Haw Tua
Tau v. Public Prosecutor at p. 153B:
`What inferences are proper to be drawn from an
accused's refusal to give evidence depend upon
the circumstances of the particular case, and is
a question to be decided by applying ordinary
commonsense.'
There must thus be some basis derived from the
circumstances which justify the inference.
If there is no prima facie case shown by the prosecution
there is no case to answer. Equally, if parts of the
prosecution had so little evidential value that they called
for no answer, a failure to deal with those specific
matters cannot justify an inference of guilt.
On the other hand if aspects of the evidence taken alone or
in combination with other facts clearly call for an
explanation which the accused ought to be in a position to
give, if an explanation exists, then a failure to give any
explanation may as a matter of commonsense allow the
drawing of an inference that there is no explanation and
that the accused is guilty...
In the present case if the only evidence relied on was that
relating to the fibres in the hair, on the clothing and in
the car, it might well not be enough to justify an
inference that the accused was guilty beyond a reasonable
doubt. The cartridge residue on the jeans, the thumb print
on the mirror and the mud on the trousers, the evidence
that he was not at home during the night clearly taken in
combination call for an explanation if there was one. The
judge was moreover entitled to have regard to the
cumulative effect of all the circumstantial evidence in
deciding whether a failure to give evidence justified an
inference of guilt.
In my opinion the evidence adduced by the prosecution
established a clear prima facie case and the trial judge
was entitled in all the circumstances of the case, and as
a matter of commonsense, to infer that there was no
innocent explanation to the prima facie case and that the
accused was guilty... Contrary to the
contention, he quite plainly did not proceed on the basis
that simply because the accused did not give evidence he
was therefore guilty...".
b. Relevant domestic law and practice
Provisions governing inferences which may be drawn from an
accused's silence
Article 3 of the Criminal Evidence (Northern Ireland) Order 1988
(hereafter referred to as the Criminal Evidence Order 1988) provides
as relevant:
"Circumstances in which inferences may be drawn from accused's
failure to mention particular facts when questioned, charged,
etc.
3. (1) Where, in any proceedings against a person for an
offence, evidence is given that the accused
(a) at any time before he was charged with the
offence, on being questioned by a constable
trying to discover whether or by whom the
offence has been committed, failed to mention
any fact relied on in his defence in those
proceedings; or
(b) on being charged with the offence or officially
informed that he might be prosecuted for it,
failed to mention any such fact,
being a fact which in the circumstances existing at the
time the accused could reasonably have been expected to
mention when so questioned, charged or informed, as the
case may be, paragraph (2) applies.
(2) Where this paragraph applies:
(a) the court, in determining whether to commit
the accused for trial or whether there is a case
to answer,
(b) a judge, in deciding whether to grant an
application made by the accused under Article 5
of the Criminal Justice (Serious Fraud)
(Northern Ireland) Order 1988 (application for
dismissal of charge where a case of fraud has
been transferred from a magistrates' court to
the Crown Court under Article 3 of that Order),
and
(c) the court or jury, in determining whether
the accused is guilty of the offence charged,
may
(i) draw such inferences from the failure as
appear proper;
(ii) on the basis of such inferences treat the
failure as, or as capable of amounting to,
corroboration of any evidence given against the
accused in relation to which the failure is
material.
(3) Subject to any directions by the court, evidence tending to
establish the failure may be given before or after evidence
tending to establish the fact which the accused is alleged to
have failed to mention."
Article 4 of the Criminal Evidence Order 1988 provides as
relevant:
"Accused to be called upon to give evidence at trial
4. (1) At the trial of any person (other than a child) for an
offence paragraphs (2) to (7) apply unless
(a) the accused's guilt is not in issue, or
(b) it appears to the court that the physical or
mental condition of the accused makes it undesirable
for him to be called upon to give evidence;
but paragraph (2) does not apply if, before any evidence is
called for the defence, the accused or counsel or a solicitor
representing him informs the court that the accused will give
evidence.
(2) Before any evidence is called for the defence, the court
(a) shall tell the accused that he will be called upon by
the court to give evidence in his own defence, and
(b) shall tell him in ordinary language what the effect of
this Article will be if
(i) when so called upon, he refuses to be sworn;
(ii) having been sworn, without good cause he refuses
to answer any question;
and thereupon the court shall call upon the accused to give
evidence.
(3) If the accused
(a) after being called upon by the court to give evidence
in pursuance of this Article, or after he or counsel or a
solicitor representing him has informed the court that he
will give evidence, refuses to be sworn, or
(b) having been sworn, without good cause refuses to answer
any question, paragraph (4) applies.
(4) The court or jury, in determining whether the accused is
guilty of the offence charged, may
(a) draw such inferences from the refusal as
appear proper;
(b) on the basis of such inferences, treat the
refusal as, or as capable of amounting to,
corroboration of any evidence given against the
accused in relation to which the refusal is
material."
Provisions governing access to a solicitor
Section 15 of the Northern Ireland (Emergency Provisions) Act
1987 provides as relevant:
"15. Right of access to legal advice
(1) A person who is detained under the terrorism provisions and
is being held in police custody shall be entitled, if he so
requests, to consult a solicitor privately...
(4) If a person makes such a request, he must be permitted to
consult a solicitor as soon as is practicable except to the
extent that any delay is permitted by this section...
(8) An officer may only authorise a delay in complying with a
request under subsection (1) where he has reasonable grounds for
believing that the exercise of the right conferred by that
subsection at the time when the detained person desires to
exercise it -
...
(d) will lead to interference with the gathering of
information about the commission, preparation or
instigation of acts of terrorism; or
(e) by alerting any person, will make it more difficult -
i. to prevent an act of terrorism, or
ii. to secure the apprehension, prosecution or
conviction of any person in connection with the
commission, preparation or instigation of an act of
terrorism."
The delay must be authorised by a police officer of at least the
rank of superintendent (sub-section (5)(a)), and the detained person
must be told the reason for the delay (subsection (7)). The maximum
delay is 48 hours.
COMPLAINTS
The applicant complains that adverse inferences drawn from his
refusal to give evidence in his defence under Article 4 of the 1988
Criminal Evidence Order violated his right to a fair trial, as
guaranteed by Article 6 para. 1 of the Convention, and deprived him of
his right to be presumed innocent, contrary to Article 6 para. 2 of the
Convention.
The applicant further complains that the application of Article 3
of the 1988 Criminal Evidence Order also abrogated his right to remain
silent and violated Article 6 para. 3(b) of the Convention.
Further, the applicant contends that the refusal to allow him
access to a solicitor was in breach of Article 5 para. 3 of the
Convention.
Finally, he invokes Articles 13 and 14 of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 27 April 1993 and registered
on 15 July 1993.
On 11 October 1993, the Commission decided to communicate the
application to the Government and to ask for written observations on
the admissibility and merits of the case.
The Government's observations were submitted on 2 March 1994,
after two extensions in the time-limit fixed for this purpose. The
applicant was invited to submit written observations in reply by
28 April 1994. None were produced.
On 10 October 1994 the Commission decided to declare part the
application inadmissible and to adjourn further consideration of the
application pending the outcome of the case of John Murray v. the
United Kingdom (No. 18731/91) before the European Court of Human
Rights.
On 2 March 1996, following the judgment of the European Court of
Human Rights of 8 February 1996 in the case of John Murray v. United
Kingdom (to be published in 1996 Reports), the Commission decided to
invite the parties to submit any additional observations which they
might consider appropriate as to the relevance of that Court judgment
to the facts of the application.
By letter of 10 April 1996, the applicant's representative stated
that no further observations were to be submitted. On 10 May 1996, the
respondent Government submitted their supplementary observations.
THE LAW
1. The applicant complains that he was deprived of the right to
silence and the presumption of innocence in the criminal proceedings
brought against him as a result of the operation of the provisions of
the 1988 Criminal Evidence Order, which permitted a judge, sitting
without a jury, to draw inferences from his failure to answer police
questions and from his failure to give evidence in his own defence
during the trial. He further complains that he was deprived of access
to his solicitor in the first 48 hours of his detention which the
Commission will consider under Article 6 para. 3(c) (Art. 6-3-c) tion.
The applicant invokes Article 6 paras. 1, 2 and 3 (b)
(Art. 6-1, 6-2, 6-3-b) of the Convention. These provisions provide so
far as relevant:
Article 6 para. 1 (Art. 6-1) of the Convention:
"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...".
Article 6 para. 2 (Art. 6-2) of the Convention:
"Everyone charged with a criminal offence shall be presumed
innocent until proved guilty according to law."
Article 6 para. 3 (Art. 6-3) of the Convention:
"Everyone charged with a criminal offence has the following
minimum rights:
...
b. to have adequate time and facilities for the
preparation of his defence;
c. to defend himself or 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."
The Government submit, inter alia, that the provisions of the
1988 Criminal Evidence Order did not operate to deprive the applicant
either of a fair hearing, contrary to Article 6 para. 1 (Art. 6-1) of
the Convention, or of the presumption of innocence contrary to Article
6 para. 2 (Art. 6-2). They refer to the safeguards provided in Article
4 of the Criminal Evidence Order 1988: no inference may be drawn unless
the suspect/accused has been warned in advance of the possible effects
of remaining silent; before any inference is drawn the prosecution must
have established a prima facie case against the accused; the trier of
fact has a discretion whether to draw an inference and may only draw
such inferences as appear proper. They claim that the Criminal Evidence
Order 1988 merely allows the trier of fact to draw such inferences as
common sense dictates. They further refer to the safeguards provided
in Article 3 of the Criminal Evidence Order 1988: inferences may only
be drawn in a specific limited category of cases (in this case the
failure of the applicant to mention facts subsequently relied on in his
defence), the accused must be warned of the consequences of remaining
silent, the accused will not be prosecuted for refusing to answer
police questions, the trier of fact has a discretion whether to draw
inferences and may only do so when it appears proper.
The Government further submit that the drawing of inferences
under Articles 3 and 4 of the Criminal Evidence Order 1988 did not mean
that the trial judge presumed the applicant to be guilty or that the
prosecution was not required to prove the case against the applicant
to the usual standard, beyond reasonable doubt. Articles 3 and 4
simply enabled the trial judge to draw inferences based on common sense
in the light of the "clear prima facie case" (per Lord Slynn) against
the applicant. The Government further submit that the requirement
that, if an accused does give evidence, he does so on oath and subject
to his account being probed in cross-examination (the most effective
way of enabling the trier of fact to judge whether or not an accused
is telling the truth) is an important corollary to the right of an
accused to give evidence and does not render his trial unfair.
The Government further submit that the matters that led the
European Court of Human Rights to conclude in the case of John Murray
v. United Kingdom (to be published), that the degree of compulsion (as
regards the giving of evidence) was not such as to amount to a
violation of Article 6 (Art. 6) of the Convention, are applicable to
all cases where the provisions of the 1988 Criminal Evidence Order are
applied.
The Government submit that the reasoning of the Court in
John Murray v. United Kingdom (see above) clearly applies to the
inferences drawn under Article 4: that the right to silence is not
absolute in the sense identified by the Court in John Murray v. United
Kingdom (to be published); that all the factors relied upon by the
Court in relation to the degree of compulsion and the situations where
inferences may be drawn apply in the applicant's case; that if an
inference is drawn under the Criminal Evidence Order 1988 by the
domestic court, that will be because the situation is one which the
court considers clearly calls for an explanation from the accused and
that in this case the domestic court concluded that the weight of the
evidence against the applicant called for an explanation from him and
that since none was forthcoming at trial, the inference drawn was a
matter of common sense.
As to the inferences drawn under Article 3, the Government submit
that a prima facie case based on forensic evidence was clearly made
out. They further submit that all the safeguards referred to by the
Court in John Murray in respect of inferences drawn under Article 4
(referred to above) were available to ensure that inferences were not
unfairly or unreasonably drawn in this case under Article 3. As to the
denial of access to a solicitor while the applicant was interviewed by
the police, the Government submit that the reasoning of para. 56 of the
Court's judgment in John Murray v. United Kingdom (see above) applies,
that is, that since there is no indication that the applicant failed
to understand the warnings made on arrest and did not speak either
before or after seeing a solicitor, the refusal of a solicitor did not
detract from the conclusion that the drawing of inferences was not
unfair or unreasonable in the circumstances.
As regards the applicant's complaint in respect of his denial of
access to a solicitor for 48 hours, the Government do not contest the
admissibility of this complaint.
The applicant has made no further submissions in addition to his
original application. He also invokes Articles 13 and 14 (Art. 13, 14)
of the Convention in respect of the matters raised in the context of
Article 6 (Art. 6).
The Commission considers, in the light of the parties'
submissions, that the above complaints raise complex issues of law and
fact under the Convention, the determination of which should depend on
an examination of the merits of the application as a whole. The
Commission concludes, therefore, that these complaints are not
manifestly ill-founded, within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention. No other grounds for declaring them
inadmissible have been established.
For these reasons, the Commission, unanimously,
DECLARES THE REMAINDER OF THE APPLICATION ADMISSIBLE, without
prejudging the merits.
H.C. KRÜGER S. TRECHSEL
Secretary President
to the Commission of the Commission