THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 38745/97 by Thomas J. FOX against the United Kingdom

The European Court of Human Rights ( Third Section ) sitting on 9 November 1999 as a Chamber composed of

Mr J.-P. Costa, President , Sir Nicolas Bratza, Mrs F. Tulkens, Mr W. Fuhrmann, Mr K. Jungwiert, Mr K. Traja, 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 5 September 1997 by Thomas J. Fox against the United Kingdom and registered on 25 November 1997 under file no. 38745/97;

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

Having regard to the observations submitted by the respondent Government on 9 July 1998 and the observations in reply submitted by the applicant on 9 October 1998;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is an Irish citizen. At the time of lodging his application he was detained in H.M. Prison The Maze, Northern Ireland.

He is represented before the Court by Mr P.J. McGrory , a lawyer practising in Belfast.

A. Particular circumstances of the case

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

On 23 May 1994, between 13:35 and 13:40, N.S. , a security guard, was shot dead by two men in Fountain Street in the centre of Belfast. The gunmen’s escape was caught on video cameras positioned in the vicinity. The gunmen were wearing workmens ’ white safety helmets, dust masks and gloves. One of the gunmen was wearing a jacket which had a blue/grey check or plaid, the other a tan coloured jacket. They were shown on the video film retrieved from the cameras running towards the Hercules Bar at the junction of Castle Street and Chapel Lane, not far from the scene of the killing. The gunmen’s flight was subsequently taken to have occurred at 13.38. At the applicant’s trial the judge was satisfied that the time shown on a video camera filming the gunmen’s escape was one minute eight seconds slow in comparison with the speaking clock. The sequence of events was not disputed at the applicant’s trial.

On 7 June 1994 the police conducted a search of the house of the applicant’s girlfriend where the applicant was staying. Among the items seized was a child’s red coat with a black trim round the collar, which belonged to the applicant’s daughter. After the search the police arrested the applicant and cautioned him, 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 did not reply to the caution. He was taken to Castlereagh Police Office where the police handed him a written copy of the caution together with an explanatory sheet.

On the same day the police conducted a search of the applicant’s brother’s house and seized a white or cream shirt which was at that time being worn by the brother.

The applicant was interviewed on numerous occasions between 7 June 1994 and 12 June 1994. A caution was administered at the start of the first interview and again before the beginning of some of the other interviews. The applicant refused to answer any questions, including questions concerning his movements on the afternoon of 23 May 1994. He also refused to watch a video recording or still photographs taken from the recording showing him entering the Castle Court Centre immediately after the shooting with a child in his arms.

The police also arrested a certain S. who similarly refused to answer questions or react to his appearance in the video recording carrying a child in his arms.

The applicant and S. were charged with the murder of N.S. and with possession of a revolver and a quantity of ammunition with intent to endanger life. They were tried at Belfast Crown Court before a single judge sitting without a jury.

At the trial, Witness A. testified that he was having a drink in the Hercules Bar and saw two men enter through the Castle Street entrance wearing white safety helmets and face masks. They passed through the bar to the porch leading onto Chapel Lane. He saw one of the men take off his safety helmet, gloves and jacket. He was met by a woman and a young child. He handed a package to the woman and picked up the child, whom he recalled as being blond and wearing something red. Witness A. gave a description of the men and their clothing. His evidence in respect of the clothing was found to be flawed.

Witnesses B. and C. testified that they saw two women at the Chapel Lane entrance to the Hercules Bar sometime after 13.30. Two men were standing inside the entrance and were removing anti-dusk masks and blue workmens ’ overalls. The two women then each handed a small child to each of the men. The couples walked quickly down Chapel Lane, each man carrying a child. Witness B. last saw the couples at the end of Chapel Lane by the junction of Berry Street. He also stated that he saw an army landrover turning at the junction. Witness C. confirmed Witness B.’s account. Witness B. said he saw the discarded clothing in Chapel Lane. One of the discarded jackets had a blue/grey check or plaid on the outside.

On the basis of this testimony the trial judge was satisfied that the two men carrying children last seen by Witnesses B. and C. at the end of Chapel Lane and going in the direction of the Castle Court Centre were the gunmen who killed N.S.

The prosecution adduced video recordings in support of its case that the applicant and his co-accused, S., were the gunmen. The court heard that Camera 38 was filming persons crossing Berry Street from the end of Chapel Lane and heading towards the entrance to the Castle Court Centre. Camera 47 was filming persons entering the Centre. Camera 38 recorded two men carrying children walking within a few feet of each other towards the Berry Street entrance of the Castle Court Centre. The time was 13.38. Camera 47 recorded one man carrying a small child enter at 13.41. A second man, walking a few paces behind the first man, then entered with a small girl in his arms. The child was wearing a red coat with a black trim around the collar. The applicant’s features are distinguishable from the recording of the second man. On the video film retrieved from Cameras 38 and 47 an army landrover , also referred to in the testimony of Witnesses B and C, is clearly visible. It was not disputed that there was only one army landrover in the centre of Belfast on the afternoon in question.

The video cameras also picked out a “third man” carrying a small child and crossing Berry Street from the direction of Chapel Lane and entering the Berry Street entrance of the Castle Court Centre. The man was wearing a blue garment with a very conspicuous logo on the back and front. In the film he is first seen carrying a child wearing a red or pink coat or jacket and when in the Castle Court Centre he is seen holding the child’s hand.

In addition to the witness evidence and the video evidence, the prosecution relied on the following:

– the red coat seized at the house of the applicant’s girlfriend was an exact match of the coat worn by the child seen being carried by the second man in the video film, identified as the applicant.

– forensic evidence that a blue/grey check jacket discarded by one of the two men who had entered the Hercules bar after the killing had come into contact with the child’s red coat found at the applicant’s girlfriend’s house. Red fibres from the coat had been found on the jacket.

– forensic evidence that one of the white safety helmets discarded by the two men in the Hercules Bar had blood on it of the same rare type as that of the victim’s.

– forensic evidence that there were firearms residue on each of the two jackets discarded outside the bar.

At the close of the prosecution case, the applicant’s counsel, who had accepted that the applicant was the second man filmed on Cameras 38 and 47, asked the judge to rule that there was insufficient evidence against his client to constitute a prima facie case that he was one of the gunmen.

Without any reference to Article 3 of the Criminal Evidence (Northern Ireland) Order 1988 (“the 1988 Order”), the trial judge concluded that a “strong prima facie case” had been made out that the applicant was one of the killers. The judge had regard to the following considerations: the strong visual likeness between the man filmed on Camera 47 and the applicant; the timing of the events as filmed; the link between the applicant and the gunmen seen by Witnesses B. and C. was strengthened by the fact that both witnesses had seen the landrover turning at the end of Berry Street at almost the same time as the arrival of the gunmen at that spot and strong forensic evidence of contact between the discarded blue/grey jacket and the child’s red coat found at the home of the applicant’s girlfriend.

In reaching this conclusion the judge had due regard to the weakness of Witness A.’s recollection of the colour of the jacket worn by the first man who entered the Hercules Bar, alleged to be the applicant. He also noted that Witness A. had incorrectly described the colour of the child’s hair as blond. It was in fact dark. Furthermore, the judge acknowledged that Witness B. was incorrect in his recollection that he had seen two men removing blue overalls at the Hercules Bar. In the judge’s opinion, these discrepancies did not detract from the weight of the prosecution case against the applicant. He observed that Witness A.’s description of the nose and hair of the first man to enter the bar reasonably tallied with the applicant’s. The judge did not accept the applicant’s submission that the third man filmed carrying a child entering the Castle Court Centre could have been one of the gunmen. He considered that the video evidence and the timing of all three men’s appearances in the recordings suggested that there was a sixteen to nineteen seconds gap between the camera sighting of the third man in Berry Street and the appearance of the two gunmen. For the judge, it would have been most unlikely that there would have been such a distance between the two gunmen who had last been seen together by Witnesses B. and C. at the end of Chapel Lane.

At the end of the prosecution case, the applicant gave evidence. Answering the only question put to him by his counsel, the applicant denied any involvement in N.S.’s murder. In cross-examination he stated that on 23 May 1994 he had taken his small daughter to Belfast and had gone to the Castle Court Centre to allow her to throw coins into the fountain before going on an errand. The applicant accepted that he was one of the men recorded on Camera 47 entering the Castle Court Centre carrying the girl in the red coat, at about 13.41.

The applicant further stated that he had refused to give this explanation when interviewed by the police because he had an unfriendly relationship with the police, and that he was angry because they had arrested his girlfriend and had caused distress to his children. The applicant denied being in the company of S. on that day.

Having ruled that the two accused had a case to answer, the judge drew a very strong inference against the applicant under Article 3 of the 1988 Order from the applicant’s failure to answer the questions put to him by the police. The judge considered the following:

“Notwithstanding that [the applicant] has no previous convictions and the relevance of this consideration to the issue of his credibility I am satisfied that [the applicant] told a tissue of lies in the witness box as to the reasons why he did not tell the police when interviewed in the Castlereagh Police Office that he had entered the Castle Court Centre on the afternoon of 23 May 1994 carrying a child, that he had nothing to do with the murder of N.S. and that he had entered the Castle Court Centre for the innocent purpose of allowing his child to throw coins into the fountain, and as to his reasons for failing to watch the video film and to acknowledge that he was one of the men shown on it and to say that his reason for entering the centre was innocent. I am also satisfied that [the applicant] lied in the witness box when he said he had nothing to do with the murder of [ N.S. ] and that he was in the area of Castle Street for an innocent purpose.

If the account which [the applicant] gave in the witness box for his movements on the afternoon of 23 May were true, and if he were innocent of the murder of [ N.S. ], then notwithstanding whatever hostility he may have felt towards the police, and notwithstanding any feelings of anger and upset he may have had against the police for arresting his girlfriend Patricia, and leaving his children crying for their mother, it is quite unbelievable and completely contrary to common sense that [the applicant] would not have given his innocent explanation to the police in the hope that this would secure the release of his girlfriend and also his own release.”

Having regard to the very strong case against the applicant and the very strong inference drawn against him under Article 3 of the 1988 Order, the judge was satisfied that the applicant was one of the gunmen who murdered N.S. and found him guilty on both counts of the indictment.

The applicant appealed against conviction to the Northern Ireland Court of Appeal. He argued that, on the evidence, the trial judge had erred in finding that he had a case to answer. He also challenged the judge’s decision to draw an adverse inference from his silence at Castlereagh Police Office in application of Article 3 of the 1988 Order.

In its judgment of 14 March 1997, the Court of Appeal found that the judge was justified in ruling on the evidence before him that there was a prima facie case against the applicant. The court rejected the applicant’s suggestion that the forensic evidence linking the red coat to one of the gunmen’s jackets was less than compelling. In the opinion of the court, that evidence was a very significant element in the prima facie case. The court, like the trial judge, also dismissed the applicant’ submission that the fact that a “third man” carrying a child raised a reasonable possibility that the applicant was not one of the gunmen. It concluded that that, according to the timings on the videos, the “third man” had been well clear of the junction between Berry Street and Chapel Lane by the time the landrover appeared. Witnesses B. and C. put the two gunmen at that junction at the same time as the landrover . Even if Witness A. had been mistaken about the colour of the top worn by one of the gunmen, the judge had been entitled to hold that the uncontradicted evidence of Witnesses B. and C. on timing and the presence of the landrover was accurate. The court further observed that although the “third man” was wearing a top with a very conspicuous logo, neither of these witnesses had recalled this logo which “would have stood out”. The Court of Appeal also considered that the judge was justified in regarding the difficulties in accepting the correctness of Witness A.’s evidence as insufficient to prevent the Crown’s evidence from being accepted as creating a prima facie case.

As to the drawing of an adverse inference, the Court of Appeal agreed with the trial judge’s conclusion that it was “quite unbelievable and contrary to commonsense ” for the applicant not to have advanced an innocent explanation for his movements on the afternoon of the murder, if there was one.

The Court of Appeal rejected the applicant’s submission that the trial judge had been wrong to draw an inference because there was a reasonable possibility that the applicant’s “policy” of not talking to the police was the true explanation for his not having done so. In his judgment, the Lord Chief Justice stated that the assertion of such a “policy” could not preclude a court from drawing adverse inferences. Otherwise, in his view, Article 3 of the 1988 Order would be undermined and effects could be negated in every case simply by an accused claiming a “policy” of not talking to the police. The Lord Chief Justice concluded:

“We are quite satisfied that the judge was entitled, and indeed entirely correct, to draw an adverse inference ... . We are also satisfied that he was correct in holding that on the whole of the evidence the Crown had established that the [applicant] was one of the gunmen who murdered [ N.S. ].”

B. Relevant domestic law

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.”

COMPLAINTS

The applicant complains under Article 6 of the Convention that he did not have a fair hearing in the determination of the criminal charges against him. He asserts in this connection that the trial judge erred in drawing an adverse inference under Article 3 of the 1988 Order from his silence when questioned by the police.

PROCEDURE

The application was introduced on 5 September 1997 and registered on 25 November 1997.

On 16 April 1998 the European Commission of Human Rights decided to communicate the application to the respondent.

The Government’s written observations were submitted on 9 July 1998, after an extension of the time-limit fixed for that purpose. The applicant replied on 9 October 1998.

On 1 November 1998, by operation of Article 5 § 2 of Protocol No. 11 to the Convention, the case fell to be examined by the Court in accordance with the provisions of that Protocol.

THE LAW

The applicant states that he was denied a fair hearing in contravention of Article 6 of the Convention which provides as relevant:

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

2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. ...”

The applicant asserts that, irrespective of the weight of the other evidence against him, the adverse inference which the trial judge drew from his silence at the police station was an essential component of his conviction. In his submission, having regard to the clear video images of his presence in the Castle Court Centre, his confirmation at the trial for the first time that he had been shopping in the city centre could not have come as a surprise to the court. His statement was no more than a confirmation of the obvious. He did not feel that he had to confirm this at the police station when confronted with the same video images.

The applicant further asserts that his silence in the face of police questioning must also be viewed in the context of the reasons which led him not to co-operate with the police. In the first place, he was upset over the arrest of his girlfriend. Secondly, he came from a section of the population which disliked and was suspicious of the police. The domestic courts wrongly discounted his sincere belief in the unacceptability of the policing of the Royal Ulster Constabulary (“RUC”) in Northern Ireland. He finds confirmation in this assertion in the fact that an official review of the role of the RUC is now being undertaken in the province. The applicant stresses that the domestic courts failed to consider whether his view of the RUC was a genuinely held personal opinion which could explain his silence at the police station. Instead, they construed his silence as guilt.

The Government stress that the applicant was not convicted solely or mainly on his refusal to answer questions at the police station. They underline the fact that the trial judge, even before the stage when an adverse inference was drawn from the applicant’s silence, rejected the applicant’s submission that the prosecution had not made out a prima facie case. Indeed, in the view of the trial judge the case was one which clearly called for an answer.

The Government also lay stress on the fact that the trial judge found that the applicant’s account of why he had refused to answer police questions was “a tissue of lies”. He reached that conclusion having heard the applicant’s testimony and having reviewed the strength of the evidence against the applicant. In these circumstances, the Government maintain that the very strong inference drawn under Article 3 of the 1988 Order was both justified and a matter of common sense.

The Court recalls that in its John Murray v. the United Kingdom judgment of 8 February 1996 ( Reports of Judgments and Decisions 1996-I, pp. 49-50, §§ 45-47), it laid down the following principles of relevance to the instant case:

a. the right to remain silent under police questioning and the privilege against self-incrimination are generally recognised standards lying at the heart of a fair procedure under Article 6, providing protection against improper compulsion;

b. it is incompatible with these immunities to base a conviction solely or mainly on an accused’s silence or his failure to answer questions or give evidence;

c. these immunities do not however prevent that an accused’s silence, in situations which clearly call for an explanation from him, be taken into account in assessing the persuasiveness of the prosecution case against him;

d. whether the drawing of adverse inferences from an accused’s silence infringes Article 6 is to be determined in light of all the circumstances of the case, having regard to the situations where inferences may be drawn, the weight attached to them by the national courts in the assessment of the evidence and the degree of compulsion.

The Court observes that, unlike John Murray, the applicant did give evidence in his defence, albeit under cross-examination only, before Belfast Crown Court and advanced an explanation as to why he remained silent in the face of police questioning at Castlereagh Police Office. It was the judge’s conclusion that the applicant should have provided the account which he gave to the court when he was first confronted in police custody with the video images confirming his presence in and around the Castle Court Centre. The trial judge, in consequence, drew a very strong inference under Article 3 of the 1988 Order. Whether the judge’s decision to do so prejudiced the applicant’s right to fair trial must be considered in the light of the role played by the inference in the proceedings against the applicant and especially in his conviction.

The Court notes that the trial judge considered that the prosecution, which bore the burden of proof throughout the trial, had made out a strong prima facie against the applicant. The applicant disputes that finding. However, it is to be observed that the trial judge reached his conclusion following a meticulous examination of all the evidence which linked the applicant to the murder of the security guard. He was especially attentive to the weaknesses in the prosecution’s case, in particular the discrepancies in the testimony given by the Witness A. The trial judge had the advantage of seeing at least two of the witnesses give oral testimony and found them to be honest witnesses whose accounts were in the main consistent with the case which the prosecution was trying to mount with regard to the applicant’s movements after the fatal shooting. The trial judge had particular regard to the fact that Witnesses B. and C. had seen an army landrover turning at the end of Berry Street at almost the same time as the arrival of the gunmen at that spot. The fact that the landrover was clearly visible in the video film retrieved from Cameras 38 and 47 confirmed, in the judge’s view, the link between the applicant and the gunmen who had been seen by Witness A. entering and leaving the Hercules Bar through the Chapel Lane exit. The trial judge gave due weight to the forensic evidence which matched the fibres found on the discarded coat with those taken from the applicant’s child’s red coat. Coupled with the presence of firearms residue on the discarded coat, the trial judge could properly consider that there was strong forensic evidence to connect the applicant to the murder. At the trial the applicant admitted for the first time that he was one of the persons caught on camera on the day in question. However, even before he gave that testimony the trial judge was satisfied that the applicant was the very same person seen in the video carrying the child in the red coat in the vicinity of and in the Castle Court Centre at the relevant times.

The Court recalls that it is not within its province to substitute its own assessment of the facts of a case for that of the domestic courts and, as a general rule, it is for these courts to assess the evidence before them. The Court’s task is to ascertain whether the proceedings in their entirety, including the way in which the evidence was taken, were fair (see the Edwards v. the United Kingdom judgment of 16 December 1992, Series A no. 247, § 33). In its opinion, having regard to the quality of the evidence adduced by the prosecution it cannot be said that the judge’s conclusion on the strength of the prosecution case was in any way arbitrary, all the more so since the Court of Appeal reviewed his assessment on all relevant points and confirmed his findings.

The Court notes that the decision of the trial judge to draw an adverse inference from the applicant’s silence in custody came after he had dismissed the defence’s submission that there was no case to answer and following the applicant’s own testimony about his movements in Belfast at the relevant time and his explanation for not having given this account to the police. It stresses that the extent to which adverse inferences can be drawn from failure to respond to police questioning must be necessarily limited and considerable caution is required when attaching weight to the fact that a person arrested in connection with a very serious criminal offence does not provide detailed responses when confronted with incriminating evidence, all the more so when, like the applicant, he proffers at the trial a reason for his silence. However, it also recalls that an accused’s right to silence, as with his right not to incriminate himself, cannot and should not prevent that his silence, in situations which clearly call for an explanation from him, be taken into account in assessing the persuasiveness of the prosecution case (see the above-mentioned John Murray judgment, p. 49, § 47).

The Court does not consider that in the instant case the adverse inference was, as alleged, a preponderant consideration in the trial judge’s determination of guilt. The applicant did not attempt to answer the prosecution’s case in his examination-in-chief and did not adduce any facts in his defence. He confined himself to a simple denial of his involvement in the murder of the security guard. When cross-examined he stated that he had gone to the Castle Court Centre with his child to allow her to throw coins into the fountain. In the words of the trial judge, who was able to make a direct assessment of the applicant’s demeanour and credibility, the applicant “lied in the witness box when he said that he had nothing to do with the murder of [ N.S. ] and that he was in the area of Castle Street for an innocent purpose”.

In the Court’s opinion the inference which the judge then drew from the applicant’s failure to give this account of his movements when in custody was an additional element which went to the weight of an already substantial case against the applicant. The inference was drawn as a matter of common-sense, having regard to the matters put to the applicant when in custody on the basis of the video evidence, and to his admission for the first time under cross-examination that he was the man seen in the video film.

The Court does not accept the applicant’s submission that the trial judge failed to have sufficient regard to the reasons for his refusal to provide this defence when questioned by the police. The judge did consider his explanation and had a discretion under the 1988 Order not to draw an adverse inference. However the judge considered that the applicant’s explanation for his silence was a “tissue of lies”. It is also to be noted that the caution administered to the applicant was clear and he was reminded of its terms on several occasions. The applicant was clearly put on notice of the implications of remaining silent, even for reasons of policy or anger about the police’s behaviour at the time of his and his girlfriend’s arrest. Moreover, there existed the safeguard that the trial judge had to give reasons for his decision to draw an adverse inference and to reject the applicant’s explanation for his silence. The applicant had a full review of the judge’s decision before the Court of Appeal and that court affirmed in every respect the judge’s approach to this issue.

Having regard to the above considerations, the Court finds that the applicant’s allegations do not disclose an appearance of a violation of the requirements of either Article 6 § 1 or Article 6 § 2 of the Convention. It follows that the application is to be rejected 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 J.-P. Costa Registrar President