THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 39846/98 by Thomas John BRENNAN against the United Kingdom

The European Court of Human Rights (Third Section), sitting on 9 January 2001 as a Chamber composed of

Mr J.-P. Costa , President , Mr W. Fuhrmann , Mr L. Loucaides , Sir Nicolas Bratza , Mrs H.S. Greve , Mr K. Traja , Mr M. Ugrekhelidze , judges , and Mrs S. Dollé , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 27 January 1998 and registered on 16 February 1998,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant is an Irish national, born in 1968 and at the time of lodging his application was detained in H.M. Prison Maze, Northern Ireland. He is represented before the Court by Andrew O’Kane , a solicitor practising in Omagh , Northern Ireland. The respondent Government are represented by Mr C. Whomersley , Agent, Foreign and Commonwealth Office.

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

The applicant’s arrest and detention

The applicant was arrested in the early morning of 21 October 1990 under Section 14 of the Prevention of Terrorism (Temporary Provisions) Act 1989 in Strabane by police officers of the Royal Ulster Constabulary (“RUC”) investigating the murder of a former member of the Ulster Defence Regiment. The applicant was transported to the special holding centre for terrorist investigations at Castlereagh , Belfast.

The applicant was interviewed for 35 hours on succeeding days by RUC police officers, beginning at 11.01 a.m. on 21 October until 25 October.

At the time the applicant was arrested (1.50 a.m. on 21 October), there was an initial decision made to defer the applicant’s access to a solicitor by Superintendent M., the police officer in charge of the investigation. He communicated this decision to Castlereagh police station by telephone and confirmed this in writing when he arrived at Castlereagh . The applicant had by this time arrived at Castlereagh and had requested a solicitor. At a review at 9.15 p.m. on 21 October 1990, the applicant was informed that his right to see a solicitor had been delayed for 24 hours. The deferral was therefore effective until the morning of 22 October. His solicitor, Mr Fahy , was informed of the deferral but did not attend until 12.10 p.m. on 23 October. There was a period of time from 9.00 a.m. on 22 October when the applicant was not being denied access to his solicitor. He made relevant admissions that afternoon.

The applicant did not see his solicitor until the next morning, namely 23 October. The applicant’s first interview with his solicitor lasted 40 minutes until 12.50 p.m. and the applicant made no complaint of ill ‑ treatment during that visit. The applicant saw his solicitor again at 3.15 p.m. on 25 October and again no complaint of ill-treatment emanated from that interview. When the applicant was allowed to see his solicitor, the police denied him a private consultation ordering that a policeman be present during the consultation. The consultation took place within the sight and earshot of the police officer who was in close proximity to the applicant and his solicitor. On the occasions that the applicant was visited by his solicitor, he made no complaint of ill-treatment.

The applicant was seen on a total of 8 occasion by doctors during his stay in Castlereagh beginning with an examination following his arrival at Castlereagh in the early morning of 21 October 1990. He made no complaint of ill-treatment to any of the doctors who examined him. The doctors found no evidence to indicate any ill-treatment or mental handicap.

The police allege that the applicant admitted his involvement in the murder during an interview in the afternoon of 22 October. They further stated that in a later interview the applicant signed a sworn statement to this effect and that thereafter he freely and voluntarily admitted further terrorist activity and signed sworn statements to that effect.

The applicant alleged that he had not volunteered the statements freely but instead that all the verbal and written statements had been extracted by ill-treatment, threats of ill-treatment, threats to his family and other oppressive conduct. The allegations of ill-treatment were denied by the RUC.

All of the verbal and written statements made by the applicant had been obtained by the police officers after the administration by them of cautions pursuant to Article 3 of the Criminal Evidence (Northern Ireland) Order 1988, 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 to mention it may be treated in court as supporting any relevant evidence against you. If you do wish to say anything, what you say may be given in evidence.”

The applicant’s solicitor was never permitted to be present at any of the applicant’s interviews, nor was any independent person; nor were the interviews recorded on video or audio tape.

The Trial Proceedings

On 14 October 1993, the applicant was tried by a single judge, McCollum J, sitting without a jury, for a total of 18 serious offences including, inter alia , murder, attempted murder, possession of firearms and ammunition with intent, possession of explosives with intent, false imprisonment, hi-jacking a motor vehicle, and membership of a proscribed organisation, namely the Provisional Irish Republican Army (IRA). He was found guilty on all counts.

The disputed verbal and written statements by the applicant constituted the only evidence connecting the applicant to the charges brought. The admissibility of the statements was challenged by the applicant on the basis that they had been obtained by torture and inhuman or degrading treatment or, alternatively, should be excluded in exercise of the judge’s discretion. A voir dire commenced and the applicant gave evidence over ten days which consisted of a highly detailed account of ill-treatment that he alleged that he experienced from the police. The officers denied ill-treating the applicant.

The events in the interviews were filmed by television camera and the pictures relayed to a monitor screen in a special room at Castlereagh police station. At all times, an officer of the rank of inspector was on duty for the purpose of viewing the monitor screens. A number of officers gave evidence and all of them told the court that they had seen no evidence of impropriety of any kind occurring during the interviews with the applicant. Indeed, none of them had ever witnessed an example of bad behaviour by an interviewing officer.

The doctors who examined the applicant a number of times at Castlereagh gave evidence that the applicant had been co-operative and composed, that there were no signs of recent injuries and that the applicant did not complain of ill-treatment. Treatment had been given to the applicant in respect of his history of duodenal ulceration.

The applicant’s account of the interrogation was rejected by the trial judge who said:

“Having heard the officers concerned who impressed me as being honest and conscientious officers, I am absolutely convinced that all of allegations of ill-treatment at this stage are completely unfounded ...

In my view if there had been any truth in the account of ill-treatment given by his distress would have been obvious to the doctors ... None of the medical evidence therefore gave any credence to the account given by in the witness box and all of that evidence is consistent with his being treated with absolute propriety ...

... I am satisfied ... that in no respect was subjected to any treatment which could be described as torture or inhuman or degrading treatment, violence or oppression in order to induce a confession from him. I am satisfied that he was not threatened in any way.”

At the trial, there was unchallenged independent medical evidence to the effect that:

1. The applicant had a full scale intelligence quotient (I.Q.) of 72.

2. The applicant was on the border line of mental retardation.

3. The applicant had a reading ability equivalent to that of an average 10 year old child.

4. His suggestibility was average but he had a high level of compliance.

Evidence was given later in the trial by a psychologist that:

“ is a psychologically vulnerable man and in my view would have required appropriate support in the context of police interviews. psychological vulnerabilities taken together with the lack of support from either the Solicitor or an appropriate adult during the police interviews and the prolonged and intensive nature of the interviews would in my opinion be of relevance to the reliability of his admissions.”

In convicting the applicant, the judge rejected this evidence, finding that that the applicant did not need any form of independent support during the interviews and the police were entitled to treat him as an ordinary member of society. He noted that the applicant’s earliest admissions did not follow particularly prolonged or intensive questioning and that during those interviews he persisted with a consistent story told with an air of conviction. He also noted that no-one thought to have the applicant’s mental capacity investigated prior to the commencement of the trial. The trial judge stated:

“... I am satisfied that was not suffering from such a degree of mental handicap that would have required the police to exercise any special consideration for him and that his memory, understanding and intellect were quite adequate to enable him to resist making any false confession under questioning in Castlereagh and that the questioning was, therefore, not in any respect unfair to him.

If he was an easier subject than others or more manageable I do not consider that that would be a matter which throws any doubt on the admissibility of any statements of confessions made by him.”

The police questioning which led to his confessions was therefore not unfair and the judge had no doubt about the reliability of the admissions made by the applicant.

In relation to the question of access to a solicitor, the judge observed that the deferral of 24 hours was effective until the morning of 22 October. However the applicant’s solicitor did not arrive until 12.10 p.m. on 23 October. The trial judge stated that it was not the deferral which prevented the applicant from seeing his solicitor after sometime early in the morning of 22 October but the fact that his solicitor did not arrive until 23 October. Incriminating admissions were made by the applicant at a time when he was no longer being denied access to a solicitor. The judge concluded that there was nothing improper in the decision to deny access for 24 hours, having regard to the police fears that messages might be passed through the solicitor with a view to alerting others implicated in offences.

The trial judge stated:

“Having considered the extent of the strength of character of the accused, his intellectual shortcomings and his nature I am quite satisfied that he was not a person for whom the regime of questioning in Castlereagh would of itself be oppressive ...

I am further satisfied that nothing was said or done during his questioning the effect of which upon him would justify the exercise of a discretion to exclude the statement ...

I am satisfied that ... his admissions were made freely, and accept the police evidence that what triggered the making of admissions by this accused was the fact that the police were able to demonstrate to him that they had information available to them which discredited the alibi that he had given them ...

In my view the particular circumstances of this case provided ample grounds for the belief that other persons could be alerted if a solicitor had seen this accused within 24 hours. In any case made no admission during the 24 hours for which the solicitor had been deferred.

I am satisfied that the deferral was right and proper in this case and that in any case it was not the deferral that resulted in the accused not seeing his solicitor during the early part of 22 October.”

The judge concluded that he was satisfied beyond reasonable doubt that the confessions were made freely and voluntarily. There was no ground for exercising his discretion to exclude any of the oral or written statements made by the applicant.

The judge was satisfied that the applicant knew that he was playing a part in a murder plot and was therefore, inter alia , guilty of murder.

The Appeal Proceedings

The applicant appealed against conviction and sentence to the Court of Appeal of Northern Ireland. The Court of Appeal noted that the Inspector had authorised the postponement of access to a solicitor before the applicant had made a request for a solicitor. The Court of Appeal noted that there was no express sanction for breach of that relevant provision. However there was nothing unfair to the applicant as the deferral ran from the time of the arrest whenever the authorisation was given. The Court of Appeal was satisfied that substantial reasons existed for the police to postpone access to a solicitor in this particular case. In a judgement of 24 September 1996, the court dismissed the applicant’s appeal stating, inter alia :

“We have no doubt that the learned trial judge was at all times aware of the need to bear the psychological evidence very much in mind when forming his conclusions both at the direction stage and when finally deciding if the Crown had established guilt beyond reasonable doubt ...

We are entirely satisfied that the learned trial judge was entitled to refuse the application for a direction [re inadmissibility] and to rule the various statements to be admissible ... Equally our perusal of the evidence does not suggest that the learned judge should, in the exercise of his discretion have excluded the statements, or any of them, from evidence ...

This is an appeal in which the evidence was lengthy and detailed. We have carefully considered all the evidence and closely reasoned submission. We have finally stood back from all the detail and looked at the case ‘in the round’ as invited us to do. We are satisfied that guilt was fully established by his admission and that his convictions are neither unsafe nor unsatisfactory.”

On 28 July 1997 the applicant’s petition seeking leave to appeal to the House of Lords was dismissed.

B. Relevant domestic law and practice

Evidence

Section 5 of the Northern Ireland (Emergency Provisions) Act 1987 provides so far as is relevant:

“(1) In any criminal proceedings for a scheduled offence, ... a statement made by the accused may be given in evidence by the prosecution in so far as:

(a) It is relevant to any matter in issue in the proceedings and

(b) It is not excluded by the court in pursuance of subsection (2) below or in the exercise of discretion referred to in subsection (3) below ...

(2) Where in any such proceedings:

(a) the prosecution proposes to give, or has given ... in evidence a statement made by the accused, and

(b) prima facie evidence is adduced that the accused was subjected to torture, inhuman or degrading treatment, or to any violence or threat of violence ... in order to induce him to make the statement

then, unless the prosecution satisfies the court that the statement was not obtained by so subjecting the accused, ... the court shall do one of the following things, namely:

( i ) ... exclude the statement;

(ii) ... continue the trial disregarding the statement; or

(iii) in either case direct that the trial shall be restarted before a differently constituted court (before which the statement in question shall be inadmissible).

(3) ... in the case of any statement made by the accused and not obtained by subjecting him as mentioned in subsection (2)(b) above, the court ... has a discretion to do one of the things mentioned in subsection (2)( i ) to (iii) above if it appears to the court that it is appropriate to do so in order to avoid unfairness to the accused or otherwise in the interests of justice ... .”

The Criminal Evidence (Northern Ireland) Order 1988 Order includes the following provisions:

Article 2 (4) and (7)

“(4) A person shall not be committed for trial, have a case to answer or be convicted of an offence solely on an inference drawn from such a failure or refusal as is mentioned in Article 3 (2), 4 (4), 5 (2) or 6 (2) ...

(7) Nothing in this Order prejudices any power of a court, in any proceedings, to exclude evidence (whether by preventing questions from being put or otherwise) at its discretion.”

Article 3

“Circumstances in which inferences may be drawn from the accused’s failure to mention particular facts when questioned, charged, ...

(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 had 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, ...

(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 45 of the Northern Ireland (Emergency Provisions) Act 1991 (formerly section 15 of the 1987 Act) deals with the right of access to legal advice and provides as far as is relevant:

“(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.

(2) A person shall be informed of the right conferred on him by subsection (1) as soon as practicable after he has become a person to whom the subsection applies.

(3) A request made by a person under subsection (1), and the time at which it is made, shall be recorded in writing unless it is made by him while at a court and being charged with an offence.

(4) If a person makes such a request, he must be permitted to consult a solicitor as soon as 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 and the detained person must be told the reason for the delay. The maximum delay is 48 hours. The officer may give a direction that a person may only exercise his right to see a solicitor in the presence of a police officer.

It was the practice of the police in Northern Ireland at the relevant time to refuse to permit the questioning of interviewees at Castlereagh holding centre to be:

1. witnessed by the interviewee’s lawyer,

2. independently witnessed and verified by any independent person,

3. to be recorded and verified by video or audio recording.

COMPLAINTS

The applicant complains that he was denied his right to consult a solicitor privately for the first 24 hours of custody during which he was questioned for 7 hours; that following this denial he did not receive any legal advice until after he had made admissions; that subsequently he was denied the right to see his solicitor privately and thereafter the police obtained further statements from him and he was not permitted to have his solicitor present while being questioned under caution. He invokes Article 6 § 3 (c) of the Convention. He further submits that the imposition of the above restrictions in the circumstances where the admissions obtained were admitted at his trial, and exclusively relied on to convict him, constituted a violation of his right to a fair hearing under Article 6 § 1 of the Convention.

THE LAW

The applicant complains about the conditions under which he was questioned after his arrest and the limitations on his access to his solicitor. He invokes Article 6 §§ 1 and 3 (c) of the Convention which provide as relevant:

“1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ...

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...”

The Government submit that there is no reason to conclude that the confessions made by the applicant during his interviews were made as the result of any inherent compulsion in the caution under Article 3 of the 1988 Order. He continued to admit his involvement in offences after seeing his solicitor. The Court of Appeal specifically found that the admissions were made freely. The confessions also occurred after the deferral of access to his solicitor had ended. There were safeguards in place to test the fairness of the confession statements, inter alia , the applicant was represented by senior counsel and a solicitor, the circumstances in which the confessions were made was subjected to strict scrutiny at the voir dire and both the trial judge and Court of Appeal, after considering the reliability of the confessions in detail, found that it would be fair to admit them in evidence and that the allegations of ill-treatment were a lie. This application is therefore similar to the case of O’Kane v. the United Kingdom, which was declared inadmissible by the Court (no. 30550/96, decision 6.7.1999).

As regards the denial of access to a solicitor, the Government submit that the applicant was well capable, despite his low intelligence, of understanding the caution and not making inaccurate confessions. For example, he only confessed to certain matters and maintained his denials in respect of others. In any event, the deferral was not the reason for the lack of access as it had ended by the time that the confessions were made. Both the trial judge and the Court of Appeal found that there were valid grounds under section 45 to defer access to his solicitor. Similar justification existed for the presence of a police officer during the interviews which later occurred between the applicant and his solicitor. The police officer concerned was not involved in the investigation and there is no suggestion either that the applicant acted in any way differently as a result of the presence of a police officer or that any use was made by the police of any confidential or privileged material. Accordingly, the applicant’s rights under the above provisions were not infringed.

The applicant submits that he was a person of very limited intelligence and of a compliant personality. He had been questioned by the police over a lengthy period in custody which per se was coercive in nature. He was repeatedly cautioned under Article 3, which called for a considered and carefully advised legal assessment of his position with regard to his right against self-incrimination. However, the applicant did not receive legal advice before he began to confess and indeed was illegally denied access to his solicitor for 24 hours. At no time was he permitted by the police to receive legal advice in conditions of privacy. He referred also to the fact that Castlereagh was not an ordinary police station and to the findings of the European Committee for the Prevention of Torture which commented adversely on the conditions of detention and the psychological pressure exerted on detainees in such holding centres.

The applicant disputes that the trial procedures provided any safeguard. There was no independent evidence provided by way of video or audio recordings of the interviews which took place nor were solicitors allowed to be present. He doubted that there were any examples of a detainee’s word being preferred to that of police officers at a trial, pointing out that the police had settled numerous claims of ill-treatment in custody although there were no reports of officers monitoring the television screens ever having admitted to seeing any misconduct. Thus the police were subject to no inhibition or restraint or independent observation during the interviews, while the applicant’s right to consult with his solicitor was denied. It was, in his submission, crucial for him to have received legal advice concerning the serious criminal offences of which he was suspected and concerning the implications of the caution. He was deprived effectively of this opportunity in violation of the above provisions. The use of the confessions obtained under these circumstances violated his right to a fair trial.

The Court finds that serious issues of fact and law arise under the Convention which should be examined on the merits. The application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and no other grounds for declaring it inadmissible have been established.

For these reasons, the Court unanimously

Declares the application admissible, without prejudgin g the merits of the case.

S. Dollé J.-P. Costa Registrar President