THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 44738/98 by Liam Rory DOUGAN against the United Kingdom

The European Court of Human Rights ( Third Section ) sitting on 14 December 1999 as a Chamber composed of

Mr P. KÅ«ris, President , Sir Nicolas Bratza, Mrs F. Tulkens, Mr K. Jungwiert, Mrs H.S. Greve, Mr W. Fuhrmann, Mr M. Ugrekhelidze, judges,

and Mrs S. Dollé, Section Registrar ;

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 13 December 1995 by Liam Rory Dougan against the United Kingdom and registered on 30 November 1998 under file no. 44738/98;

Having regard to the report provided for in Rule 49 of the Rules of Court;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a n Irish citizen, born in 1967. At the time of the introduction of his application, the applicant was detained in HM Prison the Maze, Lisburn , Northern Ireland.

The applicant is represented before the Court by P.J. McGrory and Co., a firm of solicitors based in Belfast, Northern Ireland, and by Mr A.D. Harvey QC and Mr John McCrudden QC, both of the Northern Ireland Bar.

A. Particular circumstances of the case

On 2 November 1991 a bomb exploded at Musgrave Park Hospital in Belfast killing two members of the security forces and wounding six others. A young girl was also injured in the explosion. The bomb had been planted near the Kellar Bar, situated at the basement level at the point of entry to the military wing of the hospital. The basement of the military wing of the hospital was linked to the basement of the main block (“the Withers wing”) by an underground passage. A steel door separated the Withers end of the passage from the tunnel leading to the Kellar Bar. The draw-bars of the door had been wholly or partly sawn through with a hacksaw.

The applicant, who was a porter at the hospital, was arrested while on duty at 5.45 a.m. on 4 November 1991 pursuant to section 14 of the Prevention of Terrorism (Temporary Provisions) Act 1989. He was taken to Castlereagh Police Office for questioning. Traces of explosive were found in the interior of his car and on a pair of white cotton gloves found under the front passenger seat of the car. Six pieces of metal swarf were found in the front passenger’s foot-well and some one hundred pieces of swarf were found on a pair of trousers belonging to the applicant which were seized following a search of his house. The applicant was cautioned under section 3 of the Criminal Evidence (Northern Ireland) Order 1988 at the time of his arrest and before his first interview.

The applicant was first interviewed at 11.20 a.m. on 4 November 1991. When questioned, he replied: “I’ll not be saying anything until I see my solicitor”. At his second interview, his only comment was: “I’ll make a statement when I see my solicitor”.

In the early part of his third interview from 4.10 p.m. to 6.25 p.m. on 4 November 1991 the applicant continued to say nothing when questioned about his involvement in the explosion. However at some stage in the course of the third interview the applicant was asked: “to get this matter out into the open”. The applicant then proceeded to give an account of his involvement. This account was explored in the course of the subsequent interviews. The essence of the applicant’s explanation was that he had agreed, under duress, to take two men to the hospital on 2 November 1991. On that day he drove the two men to the hospital and parked his car in the hospital car park. They all went to the basement of the Withers wing and he held the steel door open to allow the two men to enter the military side of the underground passage. After the two men had emerged from the passage he shut the steel door. They all exited the basement. The applicant stated that when he was told by the two men to hold the steel door open he knew then that they were going to plant a bomb.

The applicant’s solicitor was not present during any of the interviews. The applicant saw his solicitor between the conclusion of his interview at 3.40 p.m. on 5 November 1991 and the beginning of his next interview at 4.50 p.m. on that day. The applicant continued to speak freely to the police after seeing his solicitor.

After fifteen interviews the applicant was charged at 2.12 p.m. on 6 November 1991. He replied “not guilty” to the murder charges put to him.

The applicant was tried before a judge sitting without a jury at Belfast Crown Court. At his trial, no challenge was made to the admissibility of the applicant’s various statements on any ground. The applicant himself gave evidence and, while repeating facts suggesting duress, changed his defence and pleaded a lack of knowledge, foreseeability and intention of the crimes with which he was charged. The trial judge found:

“In the context of this case however, I had not the slightest difficulty in finding that [the applicant] was putting forward a completely lying defence. Hearing and observing him over some days in the witness box left me in no doubt at all. His lies were deliberate and comprehensive… He was cunning in his attempts to build up his new defence of lack of knowledge of the operation… In cross examination he was evasive and sought to contradict an earlier answer or obscure it with vagueness when he thought it suited. My conclusion about the complete lack of credibility of his defence was based not only on my subjective conclusion, that is, a compelling impression of his lying demeanour in the witness box, but also on the objective view that the story he was telling was inherently unbelievable…”

The trial judge found that the applicant was a willing participant in the plan to blow up the Kellar Bar. He further found that the applicant had full knowledge of and was party to the plan and knew it was organised and would be carried out by members of the IRA. The judge observed that the applicant knew the layout of the hospital and its system of working, its security and where the military congregated. In the judge’s view, the applicant, before he set out to drive the two men to the hospital, knew that their plan was to plant and explode a bomb close to the Kellar Bar with the intention of killing soldiers congregated there. The applicant gave the two men assistance in the preparation, planting and priming of the bomb in the tunnel. In giving this assistance, the applicant knew that it was in furtherance of the plan and particularly in the tunnel he knew that he was assisting the planting of a bomb which, when exploded, would cause grievous bodily harm, if not death, to the soldiers in the Kellar Bar. For the trial judge, the applicant, like the other participants, had intended to kill the soldiers.

The trial judge concluded that the applicant was guilty of murder, attempted murder and the related charges on those findings.

On 31 January 1993 the applicant was convicted on two counts of murder, seven counts of attempted murder, of causing the bomb explosion and of being in possession of the bomb with intent contrary to section 3(1)(b) of the Explosive Substances Act 1883. The applicant was sentenced to life imprisonment on the murder counts and to twenty three years’ imprisonment on the attempted murder counts. He was sentenced to twenty years’ imprisonment on the count of causing the explosion and eighteen years’ imprisonment for being in possession of a bomb. All the sentences were to be served concurrently.

The applicant appealed to the Northern Ireland Court of Appeal. He contended, inter alia , that his trial was unfair since the police refused him access to a solicitor during interview and that the trial judge had made extensive use of the applicant’s admissions during interview. Counsel for the applicant submitted that the trial judge, in the exercise of his discretion, should have excluded the admissions because the applicant did not have his solicitor present during interview.

In a judgment delivered on 15 June 1995 the Court of Appeal rejected the applicant’s reliance on the opinion of the European Commission on Human Rights in the John Murray v. the United Kingdom application: Lord Justice MacDermott stated:

“We therefore hold that, whatever view the European Court of Human Rights may eventually take of the content of the rights under Article 6 of the Convention, it is not to be regarded as ipso facto unfair within the meaning of section 11(3) of the Northern Ireland (Emergency Provisions) Act 1991 if a person detained under the Prevention of Terrorism (Temporary Provisions) Act 1989 has not been permitted to have his solicitor present during the process of questioning by the police. Accordingly the learned trial judge could not properly have been required to exercise his discretion under section 11(3) of the 1991 Act in such a way as to exclude the [applicant’s] statements on the sole ground that he was refused permission to have his solicitor present with him during the interviews. This ground of appeal must therefore fail.

In reaching this conclusion we have borne in mind [the applicant’s counsel’s] related point that Article 3 of the Criminal Evidence (Northern Ireland) Order 1988 created such a “coercive pressure” (to use his phrase) that the requirement of a solicitor’s presence during interview was highlighted. We do not accept that Article 3 implies such a requirement. If that had been the intention of Parliament we have no doubt that it would have said so in clear terms. We do not agree that Article 3 creates a “coercive pressure”: it represents a conscious attempt by Parliament to achieve a balance of fairness when … the law abiding members of the community are beset by so much ordinary as well as terrorist crime.”

B. Relevant domestic law and practice

1. Provisions governing inferences which may be drawn from an accused’s silence

Article 3 of the Criminal Evidence (Northern Ireland) Order 1988 provides in so far as relevant:

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

(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 was 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 ...

(c) the court ... 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.”

2. Provisions governing access to a solicitor

The relevant provisions at the time of the applicant’s trial governing the right of access to legal advice as a terrorist suspect were contained in section 45 of the Northern Ireland (Emergency Provisions) Act 1991 which, in so far as material, provides:

“(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.”

Section 45 of the Act does not prohibit the police interviewing a terrorist suspect once a request has been made pending the arrival of his solicitor; nor is a person suspected of terrorist offences entitled – as provided for under paragraph 6.5 of Code C of the Criminal Evidence (Northern Ireland) Order 1989 in respect of non-terrorist offences – to have his solicitor present whilst he is interviewed. In this connection, section 66(12) of the 1989 Order provides, in so far as relevant:

“Nothing in a code of practice ... applies to the exercise of powers conferred by or under [the Prevention of Terrorism (Temporary Provisions) Act 1989] or to a person arrested or detained under those provisions.”

Non-statutory guidelines issued by the Secretary of State for Northern Ireland in respect of the detention of persons suspected of terrorist offences, current at the time of the applicant’s arrest, provided, in so far as relevant, at paragraph 33:

“A person who asks for legal advice may not be interviewed or continue to be interviewed until he has received it unless:

...

(b) an officer of the rank of superintendent or above has reasonable grounds for believing that:

( i ) delay will involve an immediate risk of harm to persons or serious loss of, or damage to, property; or

(ii) where a solicitor has been contacted and has agreed to attend, awaiting his arrival would cause unreasonable delay to the process of investigation; or

(c) the solicitor nominated by the person, or selected by him from a list:

( i ) cannot be contacted;

(ii) has previously indicated that he does not wish to be contacted;

(iii) having been contacted, has declined to attend; or

(d) the person has given his agreement in writing that the interview may be started at once.”

COMPLAINTS

The applicant submits that in the determination of the criminal charges against him he did not receive a fair hearing since he was denied the presence of a solicitor during his interrogation. The applicant invokes Article 6 §§ 1 and 3 (c) of the Convention.

THE LAW

1 . The applicant invokes Article 6 §§ 1 and 3 (c) of the Convention, which provide as relevant:

“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair hearing...

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 applicant submits that the trial judge should have excluded the statements which he made during his interrogation by the police given that his solicitor was not permitted to be present during any of the interviews.

The Court observes at the outset that, even if the primary purpose of Article 6, as far as criminal matters are concerned, is to ensure a fair trial by a “tribunal” competent to determine “any criminal charge”, it does not follow that the Article has no application to pre-trial proceedings. Thus, Article 6 – especially paragraph 3 – may be relevant before a case is sent for trial if and so far as the fairness of the trial is likely to be seriously prejudiced by an initial failure to comply with its provisions (see the Imbrioscia v. Switzerland judgment of 24 November 1993, Series A no. 275, p. 13, § 36). The manner in which Article 6 §§ 1 and 3 (c) is to be applied during the preliminary investigation depends on the special features of the proceedings involved and on the circumstances of the case. In its John Murray v. the United Kingdom judgment (judgment of 8 February 1996, Reports of Judgments and Decisions 1996-I) the Court also observed that, although Article 6 will normally require that the accused be allowed to benefit from the assistance of a lawyer already at the initial stages of police interrogation, this right, which is not explicitly set out in the Convention, may be subject to restriction for good cause. The question, in each case, is whether the restriction, in the light of the entirety of the proceedings, has deprived the accused of a fair hearing ( ibidem , pp. 54-55, § 63).

The Court further observes that the administration of a caution to an accused pursuant to Article 3 of the Criminal Evidence (Northern Ireland) Order 1988 (“the 1988 Order”) may place the latter in a dilemma at the beginning of interrogation as to how best to conduct his defence at that stage. Indeed, in its above mentioned John Murray judgment, the Court noted that under the Order, at the beginning of police interrogation, an accused is confronted with a fundamental dilemma relating to his defence. On the one hand, if he chooses to remain silent, adverse inferences may be drawn against him in accordance with the provisions of the Order. On the other hand, if the accused opts to break his silence during the course of interrogation, he runs the risk of prejudicing his defence without necessarily removing the possibility of inferences being drawn against him. Under such conditions the concept of fairness enshrined in Article 6 required that the accused has the benefit of the assistance of a lawyer already at the initial stages of the investigation (loc. cit., p. 55, § 66).

In the applicant’s submission his trial was rendered unfair on account of the domestic court’s reliance on the statements which he made without his solicitor being present at his interview in Castlereagh Police Office. The Court notes that the applicant initially refused to answer police questions. However, sometime between 4.10 p.m. and 6.25 p.m. on the 4 November 1991 he began to admit to his involuntary involvement in the bombing enterprise. The applicant was able to consult his solicitor the following day, sometime after 3.40 p.m. Thereafter he continued to build on his defence that he was an unwilling party to an act of terrorism.

With reference to the principles outlined above the Court notes that the trial judge was not called on to exercise his discretion under the 1988 Order to draw adverse inferences from the applicant’s initial silence during interview. The applicant’s silence was never an issue. The Court will not speculate as to whether the applicant would have remained silent throughout his series of interviews had he been allowed to consult a solicitor when a caution was first administered to him. It notes however that the applicant persisted in his explanations to the police that he was suborned into assisting the bombers even after he had consulted with his solicitor and, further, that his counsel did not seek to have his client’s statements ruled inadmissible by the trial judge. In fact those statements were a central part of his not guilty plea and their accuracy or voluntariness were never disputed by the applicant. For these reasons the Court considers that there has been no breach of Article 6 § 1 of the Convention taken in conjunction with Article 6 § 3 (c) thereof on account of any inherent compulsion in the caution administered to the applicant.

The Court also notes that in the appeal proceedings the applicant’s lawyers, as they had done at the beginning of the trial, changed their defence strategy. Before the Court of Appeal they argued for the first time that the statements made by the applicant to the police should have been declared inadmissible on account of the absence of a solicitor during interview. However the merits of that argument must be tested against the circumstances of the case. Quite apart from the consideration that this line of defence should have been used at first instance, the Court considers that an applicant cannot rely on Article 6 to claim the right to have a solicitor physically present during interview.

However, and as noted above, fairness normally requires that an accused be able to consult with a solicitor from the initial stages of the criminal investigation. In the instant case it is to be observed that the applicant was only able to see his solicitor after 3.40 p.m. on 5 November 1991. However, by that stage he had already begun to offer a detailed explanation for his involvement in the bomb attack in order to prove his lack of culpability. The applicant has not suggested that he was at any stage ill-treated during the process of interrogation or subjected to oppression. Having regard to the fact that the applicant’s lawyers sought to rely on that statement in furtherance of his defence, the Court considers that the applicant cannot maintain that the fairness of his trial was prejudiced on account of the fact that he was denied access to a solicitor until 3.40 p.m. on 5 November 1991.

In these circumstances, the Court concludes that the application is inadmissible as being manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION INADMISSIBLE .

S. Dollé P. Kūris Registrar President