AS TO THE ADMISSIBILITY OF

                      Application No. 23496/94

                      by Dermot QUINN

                      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 30 September 1993

by Dermot QUINN against the United Kingdom and registered on

16 February 1994 under file No. 23496/94;

     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

     21 December 1995 and the observations in reply submitted by the

     applicant on 10 March 1995;

-    the further observations of the applicant, submitted on

     3 April 1996 and those of the respondent Government submitted on

     10 May 1996.

     Having deliberated;

     Decides as follows:

THE FACTS

     The applicant is an Irish citizen born in 1964 and currently

serving a prison sentence in the Maze prison, Northern Ireland. He is

represented before the Commission by Mr. Martin Donaghy, a solicitor

practising in Dungannon.

a.   The particular circumstances of the case

     The facts of the present case as submitted by the parties may be

summarised as follows.

     On 13 April 1988 two gunmen fired a considerable number of shots

at two detective constables in the Royal Ulster Constabulary (RUC),

I.M. and S.S., as they drove along a small lane leading off Ballygasoon

Road in County Armagh.  A green Datsun car, which had pulled on to the

road in front of them and reversed back towards the police officers,

drove off after the incident.  On the same day, three members of the

O'Hagan family made statements to the police that the armed gunmen had

arrived at their house (which was near to the scene of the shooting),

had seized the keys to their brown Peugeot car, and had driven off in

it.  The police later found the cars abandoned, with 2 balaclava

helmets in the Peugeot.

     The applicant was a passenger in a car driven by Mrs. McCartan

that was stopped by the police at a police check point in the vicinity

of the shooting one hour after events at the O'Hagan home. On being

questioned Mrs. McCartan stated that she was taking the applicant to

his girlfriend's home in Dungannon and the applicant stated that he had

been working on the mushrooms for Mr. and Mrs. McCartan and that he was

going to his girlfriend's home at Dungannon. The applicant and

Mrs. McCartan  were arrested under section 12 of the Prevention of

Terrorism Act 1984.  The applicant was told that he was suspected of

being involved in an attempted murder, several miles away.  Paper bags

were put over the hands of the applicant and they were both taken to

Gough Barracks, Armagh.  The applicant was interviewed from

14 April 1988 to 19 April 1988.  He maintained silence throughout this

period.  On termination of the interviews, the applicant was charged

with three offences of attempted murder and possession of ammunition

and was remanded in custody.

     On 28 September 1988, at a preliminary investigation of the three

offences charged, the three O'Hagans were summoned to give evidence

before the Magistrates' Court.  They failed to appear. Consequently,

they were arrested and brought to court on 29 September 1988 where they

stated that they were unwilling to make depositions because they were

afraid of the consequences. In the absence of a prima facie case

against the applicant, the Court discharged him.

     On 26 October 1988, the Criminal Justice (Evidence etc) (Northern

Ireland) Order 1988 (hereinafter "the Criminal Justice Order") came

into force.  It provided, inter alia, for the admission of evidence in

criminal proceedings by way of written testimony in circumstances where

the witness in question refuses to give oral evidence due to fear of

reprisals (see Relevant domestic law and practice below).

     On 16 July 1990, the applicant was again arrested in relation to

the shootings of 13 April 1988, this time under section 14 of the

Prevention of Terrorism (Temporary Provisions) Act  1989.  He asked to

see a solicitor and the police office attempted to contact one on his

behalf. Before a solicitor arrived, the applicant was cautioned in

accordance with Article 3 of the 1988 Criminal Evidence (Northern

Ireland) Order 1988 (hereinafter the "1988 Criminal Evidence Order")

in the following terms:

     "You do not have to say anything unless you wish to do so but I

     must warn you that if you fail to mention any fact which you rely

     on in your defence in court your failure to take this opportunity

     may be treated in court as supporting any relevant evidence

     against you. If you do wish to say anything, what you may say may

     be given in evidence."

     The applicant was asked if he understood the caution but made no

reply. He was also given Appendix 'D' which set out the circumstances

in which adverse inferences could be drawn against him under the 1988

Criminal Evidence Order.  He was asked to read it but showed no

interest.  It was then read to him and he was asked if he understood

or wished to ask anything.  In the course of the interviews the

applicant was asked to account for the firearms residue that had been

identified in his jacket pocket, the fibres that had been found in his

hair, and the glass fragments that had been found in the balaclavas on

13 April 1988.  In relation to each of these questions he was warned

under Article 5 of the 1988 Criminal Evidence Order of the consequences

of his failing to give explanations.  He made no reply to any

questions.  He maintained his silence throughout a second interview

which also took place before the arrival of his solicitor.

     Following the second interview, the applicant was charged with

two counts of attempted murder in respect of I.M. and S.S. on

13 April 1988 contrary to Article 3 of the Criminal Attempts and

Conspiracy (Northern Ireland) Order 1983 and common law and with the

possession of firearms and ammunition with intent by means thereof to

endanger life or cause serious injury to property, contrary to

Article 17 of the Firearms (Northern Ireland) Order 1981.

     The three O'Hagans were summoned to appear as witnesses in a

preliminary investigation before the Resident Magistrate. Two appeared

but refused to give evidence.

     The applicant was tried before a single judge sitting in a

"Diplock court" (a court specially convened for the trying of terrorist

offences) in respect of the three charges referred to above.  The

O'Hagans were summoned to appear as witnesses.  Again, only two came

to court where they stated that they did not wish to give evidence as,

they said, "it is a non-jury trial".

     The prosecution requested the judge to exercise his discretion

under paragraph 3 of the Criminal Justice Order to admit the written

statements of the O'Hagans, that had been taken by police officers on

13 April 1988, as evidence in the proceedings.   The applicant

contested the admission of the statements, claiming that since the

applicant would not be able to cross-examine the witnesses, the

admission of the evidence would result in unfairness to the accused.

     In ruling that the statements were admissible, the judge stated

the following:

     "I am satisfied beyond a reasonable doubt that the three members

     of the O'Hagan family did not give evidence at the two

     preliminary investigations because of fear. I have no doubt that

     that fear has continued and the reason why did not give

     evidence at this trial was through fear... I am satisfied beyond

     a reasonable doubt that the reason stated in this Court ... that

     they did not wish to give evidence because this was a non-jury

     trial is completely untrue. I am satisfied that this was a

     concocted and untruthful reason which was suggested to them by

     some-one else....

     ..The provisions of Articles 5 and 6 of the 1988 Order are

     clearly designed to ensure that the accused receives a fair

     trial.  As I am satisfied, having regard to those provisions,

     that it is in the interests of justice that the statements of the

     three O'Hagans should be admitted as evidence, it follows that

     I am satisfied that the accused will receive a fair hearing."

     In accordance with Article 6 of the 1988 Order, the judge found

that the quality of the evidence in the statements was excellent with

regard to consistency and reliability and that there was no risk of

unfairness to the applicant who could have either given evidence

himself or called other witnesses to controvert the statements.

     The prosecution evidence  against the applicant also included

forensic evidence: fibres from the applicant's hair matched those from

the balaclavas found in the abandoned Peugeot and firearms' residue was

found in the applicant's jacket pockets.

     The applicant gave evidence that at the relevant time he had been

working in the mushroom house on the McCartan's farm and had worn a

black woolly type hat when doing so.  He suggested that the firearms

residue found in his jacket might be due to the fact that he had been

out shooting with an uncle and that on occasions he had picked up empty

shotgun cartridges in the fields near his house. He also suggested that

he might have been in contact with a Hilti gun when he had done

engineering work in the past.  He also explained that he had not told

the police on the occasion of his second arrest about working on the

farm since he had been arrested for something very serious and did not

want to get into anything until he had seen his solicitor. Mr. McCartan

appeared as a witness for the defence and gave evidence supporting the

applicant's alibi.  He stated that the accused helped him with cattle

and with mushrooms and that on 13 April 1988 the accused had been

helping him with mushrooms.  The applicant had helped him with the

mushrooms until about 9.00 pm and had asked his wife to drive him to

Dungannon to his girlfriend's.

     The judge did not accept the applicant's defence and stated the

following:

           "Observing the accused giving his evidence, I formed the

     view from his demeanour and from the way in which he gave his

     evidence that he was lying and that he gave a lying account of

     what he did between 5.00pm and 9.00pm on 13th April 1988.

           Observing Mr. McCartan giving his evidence it was patently

     obvious from his demeanour and the way which he gave his evidence

     that he was lying and that he had come into the witness box to

     give a totally untruthful account of what had happened on the

     afternoon and evening of 13th April in order to resist [assist]

     the accused".

     In his judgment, the judge found the applicant guilty having

regard to the forensic evidence and the applicant's presence in the

vicinity of the shooting. He also relied on the "very strong adverse

inference" which he drew under Article 3 of the 1988 Evidence Order

from the applicant's silence:

           "The accused was asked in cross-examination why in

     interviews in July 1990 he had not told the police that he had

     been working at the McCartan's on the evening of 13th April 1988.

     He replied that there had been talk of people going into police

     stations and being forced to make a statement.  He also said that

     he had been arrested for something very serious and that he did

     not want to get into anything (and by this I understood him to

     mean that he did not want to say anything to the police) until

     he had seen his solicitor.  I did not believe the accused when

     he gave these reasons for not giving any replies to the police.

     If it was true that he had been working at McCartan's at the time

     that the detective constables were attacked, it would have been

     obvious to him that he should have told the police of this, and

     it is quite clear that he would not have needed the advice of a

     solicitor before giving an account to the police which if true

     would have cleared him of the offences of which he was accused.

     I am satisfied that his conduct in giving no answers whatever to

     the questions put  by the police was a deliberate tactic which

     a man with a truthful explanation in respect of the matters put

     to him would not have adopted.

     Mr Harvey submitted that an adverse

     inference should not be drawn against the accused under Article

     3, because he had asked to consult with a solicitor when he first

     arrived at Gough Barracks Police Office, and  section 15 of the

     Northern Ireland (Emergency Provision) Act 1987 gave him a right

     to consult a solicitor but the police interviewed him before his

     solicitor came to the Gough Barracks Police office to advise him.

     I reject that submission. The Criminal Evidence (Northern

     Ireland) Order 1988 was made law after section 15 of the Northern

     Ireland (Emergency Provisions) Act 1987 became law, and I

     consider that Parliament did not intend that an inference

     dictated by common sense which was permitted by Article 3 of the

     1988 Order should not be drawn because of the  right of access

     to legal advice given by section 15 of the 1987 Act. The present

     case was not one where the truthful explanation that a suspect,

     being interviewed by the police, could give, might or might not

     clear him of guilt and where he would need the advice of a

     solicitor before deciding to give the explanation. As I have

     already stated, if it were true that the accused  was working at

     the McCartan's on the evening of 13 April 1988 when the two

     detectives were attacked, it would have been obvious to him that

     he should give this explanation and there was no reason why he

     should see a solicitor before giving that explanation. I consider

     it to be clear that Parliament did not intend that the change in

     the law brought about by Article 3 which permits and contemplates

     the drawing of a common sense inference in an appropriate case

     should be stultified by the existence of the right to legal

     advice given by section 15 of the 1987 Act. In the present case,

     I draw the strong adverse inference against the accused that his

     account in the witness box that on the evening of 13 April 1988

     he had been working in the mushroom house, wearing a black woolly

     hat, was a complete falsehood. This matter taken together with

     the matters which I have referred to in (i), (ii) and (iii) above

     miles away from the scene an hour after the attack satisfies me

     that he was a member of the terrorist gang who attacked the two

     detective constables and that he is guilty of the three counts

     on the indictment."

     The judge drew no inferences under Article 5 of the 1988 Criminal

Evidence Order because the applicant had been asked to account for

evidence that was present at the time of the first arrest on

13 April 1988 not at the time of the second arrest on 16 July 1990.

     On 23 December 1991, the applicant was convicted on two counts

of attempted murder and on a single count of possession of firearms and

ammunition with intent. He was sentenced to a total of 25 years'

imprisonment.

     The applicant appealed on the grounds, inter alia, that the trial

judge had erred in admitting the O'Hagan statements in evidence and

that the trial judge had erred in drawing an adverse inference under

Article 3 where the accused was questioned before receiving legal

advice which he had requested.

     By its judgment of 17 September 1993, the Court of Appeal of

Northern Ireland found that the judge had not erred in admitting the

O'Hagan statements. Further, as regards the drawing of adverse

inferences, the Court agreed with the trial judge:

     "it is inconceivable that if Parliament intended Article 3 should

     be read subject to s. 15 of the 1987 Act it would not have said

     so expressly...so far as the technical requirements of the law

     are concerned we are satisfied that there was no breach of any

     of those provisions by the interviewing officers in what they

     did. What then of the merits of the matter on which Mr. Harvey

     placed great stress? His main submission was that it was unfair

     and wrong for the judge to draw an adverse inference in the

     unusual circumstances of this case. In our view however it is

     important to look at the history of this case and particularly

     at the interviews during the first arrest period. During those

     earlier interviews after his first arrest the appellant was made

     completely aware of the forensic case which the police had

     against him... and... it would have been the easiest thing in the

     world for him, after the second arrest and after he had been

     warned clearly by the detectives of the consequences of his not

     saying anything on which he wished to rely later in his defence -

     it was the easiest thing in the world for him to say, "I can

     explain those fibres because I was wearing an acrylic hat a few

     hours before I was arrested." As regards firearms residues where

     was the difficulty in saying to the interviewers that he was

     often out with uncles who used sporting guns and often picked up

     spent cartridges? He had nearly two years to think out his

     position... No doubt...there had been a change in law between his

     two arrests - a point which must have been obvious to him when

     on 16 July 1990 the detectives explained the new rules in law,

     yet he made no request whatever for a postponement of the

     interview when it started ..Moreover D/I Cardew was not

     challenged when he said in evidence that there had been no

     deferral of the appellant's right to see a solicitor and if the

     appellant had asked for a postponement he would have immediately

     stopped the interview. In the result we take the view that there

     is no question of unfairness in what the learned judge did and

     that he was entirely right in drawing the inference which he

     did."

     The Court dismissed the applicant's appeal against his

convictions.

b.   Relevant domestic law and practice

     Admissibility of statements of first-hand hearsay

     Article 3 of the Criminal Justice (Evidence etc) (Northern

Ireland) Order 1988 provides so far as relevant:

     "3-(1) ...

           a statement made by a person in a document shall be

           admissible in criminal proceedings as evidence of any fact

           which direct oral evidence by him would be admissible if -

           ...

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

                 (iii) the requirements  mentioned in paragraph 1(ii)

                 are -

                      (a) that the statement was made to a police

                      officer... and

                      (b) that the person who made it does not give

                      oral evidence through fear..."

     Article 6 provides that the court should follow certain

principles in determining whether a statement should be admitted.  It

provides :

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

           (a)   the Crown Court -

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

           (b)   the Court of Appeal;...

           is of the opinion that in the interests of justice a

           statement which is admissible by virtue of Article

           3...nevertheless ought not to be admitted, it may direct

           that the statement shall not be admitted.

     (2)   Without prejudice to the generality of paragraph (1), it

           shall be the duty of the court to have regard -

           (a)   to the nature and source of the document containing

                 the statement and to whether or not, having regard to

                 its nature and source and to any other circumstances

                 that appear to the court to be relevant, it is likely

                 that the document is authentic;

           (b)   to the extent to which the statement appears to supply

                 evidence which would otherwise not be readily

                 available;

           (c)   to the relevance of the evidence that it appears to

                 supply to any issue which is likely to have to be

                 determined in the proceedings; and

           (d)   to any risk, having regard in particular to whether it

                 is likely to be possible to controvert the statement

                 if the person making it does not attend to give oral

                 evidence in the proceedings, that its admission or

                 exclusion will result in unfairness to the accused.."

     Article 6 provides that a statement prima facie admissible  under

Article 3 which appears to the court to have been prepared for the

purposes of "pending or contemplated criminal proceedings" is not to

be given in evidence:

           "in any criminal proceedings without the leave of the

           court, and the court shall not give leave unless it is of

           the opinion that the statement ought to be admitted in the

           interests of justice; and in considering whether its

           admission would be in the interests of justice, it shall be

           the duty of the court to have regard -

           (i) to the contents of the statement;

           (ii) to any risk, having regard to whether it is likely to

           be possible to controvert the statement if the person

           making it does not attend to give oral evidence in the

           proceedings, that its admission or exclusion will result in

           unfairness to the accused or, if there is more than one, to

           any one of them; and

           (iii) to any other circumstances that appear to the court

           to be relevant."

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

silence

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

provides as relevant:

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

     failure to mention particular facts when questioned, charged,

     etc.

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

     offence, evidence is given that the accused

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

     questioned by a constable trying to discover whether or by whom

     the offence has been committed, failed to mention any fact relied

     on in his defence in those proceedings; or

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

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

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

     accused could reasonably have been expected to mention when so

     questioned, charged or informed, as the case may be, paragraph

     (2) applies.

     (2) Where this paragraph applies

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

     trial or whether there is a case to answer,

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

     the accused under Article 5 of the Criminal Justice (Serious

     Fraud) (Northern Ireland) Order 1988 (application for dismissal

     of charge where a case of fraud has been transferred from a

     magistrates' court to the Crown Court under Article 3 of that

     Order), and

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

     guilty of the offence charged,

     may

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

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

           or as capable of amounting to, corroboration of any

           evidence given against the accused in relation to which the

           failure is material.

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

     establish the failure may be given before or after evidence

     tending to establish the fact which the accused is alleged to

     have failed to mention."

     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...".

COMPLAINTS

1.   The applicant complains that the drawing of an adverse inference

from his silence in police custody infringes his rights under Article

6 paras. 1 and 2 of the Convention not to be required to incriminate

himself, the presumption of innocence, his right to silence and the

principle that the prosecution bear the burden of proving their case

without assistance from the accused. He submits that this must

particularly be the case where an accused is penalised for failing to

make a statement in an interrogation conducted by the police before he

receives advice from his lawyer.  In his reply to the Government's

Observations, the applicant has further invoked Article 6 para. 3(c)

in conjunction with Article 6 para. 1 of the Convention in respect of

the denial of access to a solicitor.

2.   The applicant further complains of the admission in evidence of

the statements of witnesses who were not present in court to be

examined or cross-examined in court. He invokes Article 6 para. 3 (d)

of the Convention.

3.   The applicant also invokes Article 6 paras. 1 and 7 of the

Convention on the basis that the rules permitting the admission of the

witness statements came into force after the alleged crimes took place.

PROCEEDINGS BEFORE THE COMMISSION.

     The application was introduced on 30 September 1993 and

registered on 16 February 1994.

     On 30 August 1994 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 observations were submitted on 21 December 1995

after one extension in the time-limit fixed for this purpose.  The

applicant's observations in reply were submitted on 10 March 1995 after

two extensions in the time-limit fixed for this purpose.

     On 20 May 1995 the Commission decided to adjourn further

consideration of the application pending the outcome of the proceedings

before the European Court of Human Rights in the case of John Murray

v. United Kingdom (No. 18731/91).

     On 15 September 1995 the Commission decided the grant the

applicant legal aid.

     On 2 March 1996 the Commission decided to invite the parties to

submit any additional observations that they might consider appropriate

on the relevance of the reasoning of the European Court of Human Rights

in its judgment of 8 February 1996 in the case of John Murray v. United

Kingdom, to the facts of the application.

     On 3 April 1996 the applicant submitted further observations.

On 10 May 1996 the respondent Government submitted further observations

after one extension in the time-limit set for this purpose.

THE LAW

1.   The applicant complains that the drawing of adverse inferences

from his silence in police custody and the operation of the provisions

of the 1988 Criminal Evidence Order infringed his right not to

incriminate himself, the presumption of innocence, his right to silence

and the principle that the prosecution bear the burden of proving their

case without assistance from the accused.  He complains in particular

as to the adverse inferences drawn from his refusal to answer police

questions in the absence of a legal adviser. He invokes Article 6

paras. 1 and 2 (Art. 6-1, 6-2) of the Convention.  As regards access

to legal advice, the applicant invokes Article 6 para. 3 (c) in

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

The applicant further complains that the admission in evidence of the

statements of the O'Hagans, who were not present in court to be

examined or cross-examined, was contrary to Article 6 para. 1

(Art. 6-1) and to Article 6 para. 3 (d) (Art. 6-3-d) of the Convention.

Those provisions, so far as relevant, provide as follows.

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

     of any criminal charge against him, everyone is entitled to a

     fair and public hearing within a reasonable time by an

     independent and impartial tribunal established by law...

     2.    Everyone charged with a criminal offence shall be presumed

     innocent until proved guilty according to law.

     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;

           d.    to examine or have examined witnesses against him and

           to obtain the attendance and examination of witnesses on

           his behalf under the same conditions as witnesses against

           him".

a.   Concerning the drawing of inferences under the 1988 Criminal

     Evidence Order

     The Government submit inter alia that the drawing of inferences

under Article 3 of the 1988 Criminal Evidence Order did not render the

applicant's trial unfair contrary to Article 6 para. 1 (Art. 6-1) of

the Convention or deprive the applicant of his right to be presumed

innocent contrary to Article 6 para. 2 (Art. 6-2) of the Convention.

They refer to the safeguards of Article 3 of the Order: that inferences

may only be drawn when the fact that the accused failed to mention when

questioned by police was one that he could reasonably have been

expected to mention and that he later relied on in his defence; that

inferences can only be drawn in a specific and limited category of

case; that before any inference can be drawn against him the accused

must have been warned as to the effect of his failure to mention any

facts later relied on; that the accused retains the right to remain

silent and will not be liable to any criminal charge for remaining

silent in the face of police questioning; that the accused shall not

have a case to answer or be convicted solely on an inference drawn from

his failure to mention facts later relied on (Article 2(4)); that the

trier of fact has a discretion as to whether to draw inferences and,

in circumstances where the trier of fact considers the accused is

particularly vulnerable, can draw no inference; and that the trier of

fact may only draw such inferences as appear proper which will depend

on all the circumstances of the case.

     As regards the inferences that were drawn under Article 3 of the

Order in this case, the Government submit that there was a prima facie

case against the applicant, based in particular on the forensic

evidence against him: (a) the fibres linking the balaclavas with the

accused and (b) the firearms residue found in the pockets of the

applicant's jacket.  They contend that a central feature of the case

was the fact that the trial judge did hear the applicant give evidence

and concluded that the applicant's version of events was a "lying

account".  The inference drawn under Article 3 was that his evidence

was a "complete falsehood", and the inference in this case therefore

went to support the conclusion that had already been reached by the

judge as to the applicant's credibility.  They submit that the

applicant was warned on several occasions in the course of the 1990

interviews and was well aware of the significance of his failure to

mention any of the matters which he subsequently put forward in his

defence.

     As regards the presumption of innocence the Government submit

that Article 3 of the Order does not make provision, either in form or

in substance, for any presumption of fact or law against the accused.

The prosecution remains obliged to prove beyond reasonable doubt all

the elements of the offence charged. The Government submit that Article

3 merely enabled the trial judge to draw an inference based on common

sense.

     The applicant submits that the 1988 Criminal Evidence Order has

effectively abrogated the right to silence, since even if the accused

can still remain silent, he does so at his peril, running the risk of

allowing a prima facie case to be established against him on the basis

of inferences drawn under Article 3(2)(A) of the 1988 Criminal Evidence

Order which expressly provides that in determining whether there is a

case to answer (prima facie case) the Court or Jury may draw such

inferences from silence under police questioning as appear proper.  By

remaining silent he thereby risks securing his conviction under

Articles 3 and 4 which allow the court or jury to infer that the

accused is guilty of the offence charged.  He recalls that in the case

of John Murray v. United Kingdom, one of the factors considered by the

Court to be a safeguard in the application of Articles 4 and 6 of the

1988 Criminal Evidence Order is the requirement that the prosecution

must first establish a prima facie case before adverse inferences can

be drawn.  He submits that, by contrast, Article 3 is subject to no

such safeguard.

     Whilst he accepts that a person can not be convicted solely on

the basis of an inference drawn from a failure to mention facts later

relied on in defence, he contends that persons who would previously

have been acquitted or discharged for insufficient evidence against

them are now being convicted.  He refers to the limitless and

comprehensive nature of the inferences which may be drawn, there being

no statutory guidance as to what inferences may be "properly" drawn in

any of the circumstances contemplated by, inter alia, Articles 3 and

4.  He notes that the absence of legal advice does not preclude the

court from drawing inferences from the applicant's silence in the face

of police questioning under Article 3, as happened in this case.

     He further claims that the situation in which the applicant was

being questioned was not one which "clearly called for an explanation",

as described by the Court in its judgment in John Murray v. United

Kingdom; in particular he was being questioned about very serious

offences without having had any access to a lawyer.

     As regards the Government's claim that the accused is warned in

ordinary language as to the consequences of his remaining silent in the

face of police questioning, the applicant states that this is simply

wrong, Article 3 containing no such requirement.  Whilst accepting that

a warning was given, the applicant submits that in the circumstances

of this case the warning given could not be characterised as an

"appropriate warning", the existence of which was considered by the

Court in John Murray v. United Kingdom to be an important safeguard in

the application of the 1988 Criminal Evidence Order.  First, it was

delivered at a time when the applicant had not had the benefit of

proper legal advice.  Secondly, there was no requirement to explain

(unlike Article 4 and Article 6 of the 1988 Criminal Evidence Order)

in ordinary language what the effect of the section was.  Thirdly, the

applicant was warned prior to being charged or informed that he was to

be charged and it cannot therefore be appropriate in these

circumstances to warn a person about the adverse consequences of

failing to mention any fact "relied on in his defence".

     The applicant further submits that since Articles 3 and 4 were

both applied in his case, he was put in an impossible situation. If,

as was the case, he had not answered police questions but had then

agreed to give evidence following the judge calling him to do so under

Article 4, inferences could have been drawn against him under Article

3 (as was the case).  If, however, he had refused to give evidence at

trial, inferences could have been drawn against him under Article 3 and

Article 4.  If he had in fact given an explanation to the police and

had then refused to give evidence at trial, inferences could have been

drawn against him under Article 4 and also under Article 3 (in

circumstances where his defence counsel relies on matters other than

those he mentioned to the police in his defence).  The applicant

submits that he gave evidence at trial because he was under a

compulsion to do so to avoid an adverse inference being drawn under

Article 4, and consequently he incriminated himself to the extent that

the Court was able to convict him by relying on Article 3.  He was at

no point warned that in giving evidence at trial he would be exposed

to a risk of having adverse inferences drawn against him under Article

3. Further, once he had been sworn, a failure or refusal to answer any

question put to him could itself have led to adverse inferences being

drawn against him under Articles 4(3)(b) and 4(4) of the 1988 Criminal

Evidence Order and proceedings being taken against him for contempt of

court.  It was therefore the combination of the provisions of the Order

that was material in the applicant's conviction.

     Further, the applicant claims that the case against him was not

"formidable" as it had been in John Murray v. United Kingdom, the

evidence consisting largely of statements admitted under the Criminal

Justice Order (which established the prima facie case against him), and

that without the very strong adverse inference that was drawn, he could

not have been convicted.  As regards the Government's claim that the

inference in this case merely went to support the view already formed

by the judge as to the applicant's credibility, the applicant submits

that this is not correct, the inferences drawn under Article 3 being

an integral part of the decision to convict.  The applicant claims that

Murray v. United Kingdom is further distinguishable on the basis that

while Murray remained silent from the moment of his arrest, the

applicant gave evidence at trial.  He submits that it is clear from the

judgment of the Court in John Murray v. United Kingdom (paras. 55-56)

that the decision of the Court may well have been different if, as in

the present case, the accused had given evidence and an inference had

been drawn under Article 3.

b.   Lack of access to legal advice

     As regards inferences drawn from the applicant's silence in the

absence of a solicitor, the Government submit that the absence of a

solicitor does not  per se lead to the conclusion that there has been

a violation of the Convention.  Rather, each case must be judged on its

own facts to determine whether the lack of consultation with a

solicitor in fact rendered the proceedings as a whole unfair.  They

claim that in this case the absence of a solicitor did not lead to

unfairness because if it had in fact caused unfairness, that would have

been taken into account by the court when it exercised its discretion.

In particular, had the applicant, having consulted a solicitor then

mentioned facts later relied on, in the Government's submission, it

would have been inconceivable that the court would have drawn any

adverse inferences under Article 3.  Further, they submit that the

applicant's attitude throughout his interviews was to completely refuse

to answer any question put to him and that remained the case even after

he had consulted his solicitor.  The Government refer to the finding

of the judge that since by the 1990 interviews the applicant knew the

nature of the case against him, it would have been the "easiest thing

in the world" for the applicant to mention the facts that he

subsequently relied on.  Equally, he knew the possible consequences of

not mentioning them.

     The applicant claims that it was particularly important in his

case that he receive advice prior to being interviewed since he had

already been discharged by order of the Court on identical charges

before the 1988 Criminal Evidence Order was introduced. He was given

no advice prior to the administration of the Article 3 caution and he

was interviewed in breach of the domestic requirement that a person who

asks for legal advice cannot be interviewed until he has received it.

Further, there was no audio or video recording of the interviews and

no independent authentification of what was said.  He claims that the

questioning after the second arrest was clearly aimed at attempting to

trigger the 1988 Criminal Evidence Order rather than the police

expecting any break through during a new period of questioning.

     He submits that in the circumstances of the case (the applicant

had been rearrested on the same charges as those for which he had been

discharged by a court order subsequent to which the Criminal Evidence

Order had come into force), the applicant was in particular need of

legal advice prior to the administration of the Article 3 caution and

the relevant police interviews.

     He further submits that having regard to the judgment of the

Court in John Murray v. United Kingdom (paras. 59-70), the facts of

this case likewise disclose a violation of Article 6 para. 1 in

conjunction with para. 3(c) (Art. 6-1+6-3-c), particularly since

adverse inferences were drawn from his silence during police

questioning and he was questioned in breach of international and

applicable domestic standards.  He recalls that he was held

incommunicado, and that the interviews were not subject to any audio

or video recording so that the only notes of the interviews are the

police notes such that there is no independent, verifiable or reliable

records of the manner in which the police interviews were conducted.

c.   Concerning the admission of witness statements

     Although the Government accept that the O'Hagans were "witnesses"

for the purposes of Article 6 para. 3(d) (Art. 6-3-d) of the

Convention, they submit that the proceedings taken as a whole were not

rendered unfair by the inability of the applicant to cross-examine

those witnesses, who did not give evidence due to fear for their

safety.

     The Government submit that the safeguards contained in Articles

3, 5 and 6 (Art. 3, 5, 6) of the Criminal Justice Order are extensive

and are designed, in summary, to strike a fair and proper balance

between the public interest in having before the court all relevant

evidence and the public interest in ensuring fairness to an accused.

They emphasise the fact that when assessing whether it is in the

interests of justice to admit a statement, the court is under a duty

to consider the possibility of unfairness to the accused, and in

particular whether it is likely to be possible to controvert the

statement if the maker of the statement does not give oral evidence.

Thus, the Government submit, the issues that the domestic court is

bound to consider are very similar, if not identical, to the issues

that arise under the Convention and were considered by the European

Court of Human Rights in a series of judgments, including Artner v.

Austria (Eur. Court HR judgment of 28 August 1992, Series A no. 242-A),

the facts of which are analogous to the facts in the present case.

     They submit that in this case the trial judge considered this

issue and concluded that it would be in the interests of justice to

admit the statements of the O'Hagans and that no unfairness to the

accused would result from their admission.  The Court of Appeal

reviewed the judge's decision and came to the same conclusion.  As

regards the statements themselves, the Government refer to the fact

that they were taken very shortly after the shooting incident, that

they were internally consistent and that the witnesses themselves had

no conceivable motive for making up the facts contained therein.  The

evidence provided by the statements was not identification evidence

against the applicant, such that the opportunity to test it by cross-

examination might well be a matter of great importance. They submit

that here the evidence provided by the statements merely provided the

link between the Peugeot car, the balaclavas and the shooting incident.

The only possible way of challenging the evidence would have been to

claim that the witnesses had fabricated their entire account, which was

never suggested by the defence. Thus the evidence was not evidence that

needed to be tested by oral examination. As such its admission did not

render the trial unfair.

     The applicant submits that the rights of the defence were

significantly and substantially impaired by the fact that the defence

was not able to cross-examine the O'Hagans.  He submits that it is not

correct to assert that the evidence of the O'Hagans was not of crucial

importance or of a controversial nature.  He refers to the statement

of the Government in their observations that "it provided the link"

without which a conviction could not have been sustained and notes that

on 29 September 1988, prior to the Criminal Justice Order coming into

force, the evidence was not admissible and the applicant was therefore

discharged for lack of evidence against him.  He avers that in the

circumstances it was vitally important that the witnesses be subjected

to extensive and rigorous cross-examination.  Further, the applicant

claims that it is not proper for the Government to assert that the

O'Hagans had no conceivable motive for imagining or inventing a story

in circumstances where the defence had no opportunity to examine their

motivation, reliability or truthfulness by cross-examination.

     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.  The Commission concludes, therefore,

that this part of the application is not manifestly ill-founded, within

the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.  No

other grounds for declaring it inadmissible have been established.

2.   The applicant further complains that the rules permitting the

admission of the witness statements came into force after the alleged

crimes took place and that the prosecution's reliance thereon was

contrary to Article 6 para. 1 (Art. 6-1) and Article 7 (Art. 7) of the

Convention.  The latter provision reads as follows.

     "1.   No one shall be held guilty of any criminal offence on

     account of any act or omission which did not constitute a

     criminal offence under national or international law at the

     time when it was committed.  Nor shall a heavier penalty be

     imposed than the one that was applicable at the time the

     criminal offence was committed.

     2.    This Article shall not prejudice the trial and

     punishment of any person for any act or omission which, at

     the time when it was committed, was criminal according to

     the general principles of law recognised by civilised

     nations."

     The Commission recalls that the applicant was convicted on two

counts of attempted murder and on a single count of possession of

firearms and ammunition with intent.  The adoption of the Criminal

Justice Order and the 1988 Criminal Evidence Order did not alter the

elements of those criminal offences, that were contrary to the law at

the time the relevant acts were committed.  Rather, the Criminal

Justice Order merely changed the rules relating to the admission of

evidence to prove the commission of the criminal offences.

     The Commission recalls that Article 7 (Art. 7) is concerned with

the retrospective creation of criminal offences and not with the

retrospective application of rules of evidence, as is complained about

here.  As such Article 7 (Art. 7) is inapplicable to the circumstances

of this case.

     Insofar as the complaint relates to fairness of the retrospective

application of the 1988 Criminal Evidence Order and the Criminal

Justice Order within the meaning of Article 6 para. 1 (Art. 6-1) of the

Convention, the Commission considers that the retrospective application

of rules of evidence will not per se  give rise to an issue of fairness

under Article 6 (Art. 6) of the Convention; rather the proceedings as

a whole will need to be examined to determine whether the trial was

"fair" within the meaning of Article 6 (Art. 6).  The Commission is of

the view that the retrospective nature of the 1988 Criminal Evidence

Order and of the Criminal Justice Order did not itself deprive the

applicant of the right to a fair trial under Article 6 para. 1

(Art. 6-1).

     It follows that this part of the complaint must be dismissed as

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

     For these reasons, the Commission, unanimously,

     DECLARES ADMISSIBLE without prejudging the merits, the

     applicant's complaints relating to the inferences drawn from his

     silence under police questioning, lack of access to legal advice

     and the admission of witness statements, when the witnesses could

     not be cross-examined by the applicant;

     DECLARES INADMISSIBLE the remainder of the application.

Secretary to the Commission                President of the Commission

        H.C. KRÜGER                             S. TRECHSEL

         Secretary                               President

     to the Commission                       of the Commission