THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 30550/96

by Francis O'KANE

against the United Kingdom

The European Court of Human Rights ( Third Section) sitting on 6 July 1999 as a Chamber composed of

Mr J.-P. Costa, President ,

Sir Nicolas Bratza ,

Mr L. Loucaides ,

Mr P. KÅ«ris ,

Mrs F. Tulkens ,

Mr K. Jungwiert ,

Mrs H.S. Greve , Judges ,

with 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 12 December 1995 by Francis O'Kane against the United Kingdom and registered on 22 March 1996 under file no. 30550/96;

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 7 October 1997 and the observations in reply submitted by the applicant on 23 February 1998;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is an Irish citizen born in 1969 and currently detained in HM Prison Maze, Northern Ireland.

He is represented before the Court by Mr P. McGuckin , solicitor, Mr J. McCrudden QC and Mr S. McNeill , counsel, all practising in Northern Ireland.

A. The particular circumstances of the case

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

At 6.55 a.m. on 21 June 1993 the applicant was arrested at his home pursuant to section 14(1)(b) of the Prevention of Terrorism (Temporary Provisions) Act 1989 (“the 1989 Act”). He was then taken to Castlereagh Police Office where he was examined at 8.50 a.m. by Dr H. who certified him fit to be questioned.

Before being questioned the applicant was cautioned under Articles 3, 5 and 6 of the Criminal Evidence (Northern Ireland) Order 1988 (“the 1988 Order”). The applicant was also asked whether he wished to consult a solicitor. He replied that he did not.

In the course of the first day the applicant was interviewed on 6 occasions and responded to police questioning by denying his involvement in any of the offences put to him. He offered an alibi in response to a claim that he had been involved in a robbery at a bookmaking premises, which the police declined to accept. On the morning of the second day, the applicant informed the police that he was mistaken in this alibi and he offered another explanation for his whereabouts at the time of the robbery. Again the police refused to accept this alternative alibi. The applicant asked to consult with his solicitor, Mr McGuckin . On receipt of this request, at or about 10 a.m., a police officer made an attempt to contact Mr McGuckin at his office. The police officer was told by Mr McGuckin’s office that he was out and could not be contacted. It was not known when he would return but that the message that the applicant was requesting his presence at Castlereagh Police Office would be passed on to him. In these circumstances Detective Superintendent H., pursuant to non-statutory guidelines issued by the Secretary of State relating to the questioning of terrorist suspects, authorised the interview to continue although the applicant had not had an opportunity to consult with his solicitor.

When Mr McGuckin eventually arrived at Castlereagh Police Office some two and a half hours later, at 12.40 p.m., facilities were provided for the applicant to consult with him in private. The applicant had, however, already admitted to membership of the Irish Republican Army (“IRA”) and attempting to rob a post office. Following the consultation the applicant went on to make further verbal admissions and at 9.58 p.m. the applicant dictated a detailed statement to the interviewing officers describing his involvement in various terrorist offences, including a number about which he had not been questioned. After having made this statement, the applicant took the police to the area of his house and pointed out the various hiding places for weapons and explosives used by the IRA to which he had referred in his admission.

The applicant was tried by a judge sitting alone at Belfast Crown Court. The indictment upon which he was charged contained 33 counts alleging various terrorist offences including 3 counts of conspiracy to murder, possession of firearms and ammunition, possession of explosive substances, false imprisonment, hijacking, robbery and membership of the IRA.

The prosecution relied exclusively on the verbal admissions and the written statement which the applicant had made in the course of the second day of questioning at Castlereagh Police Office.

The applicant did not dispute that the evidence before the court accurately recorded admissions which he made in the course of being interviewed. However, he submitted through his counsel at a voir dire hearing that the confession evidence should be excluded under section 11(2) of the Northern Ireland (Emergency Provisions) Act 1991 (“the 1991 Act”) on the grounds that it had been obtained by violence and threats of violence or, alternatively, under section 11(3) of the 1991 Act, in order to avoid unfairness to the applicant or as otherwise being in the interests of justice.

The trial judge rejected the applicant’s contention that the admissions had been obtained by violence or threats of violence, being satisfied with the evidence given by the interviewing officers that they had treated the applicant fairly and properly. The trial judge therefore declined to exclude the evidence in the exercise of his general discretion under section 11(3) of the 1991 Act.

The applicant’s counsel also argued under section 11(3) of the 1991 Act that the applicant was someone who was mentally handicapped, or in any event someone of limited intelligence with a vulnerable personality; that he had been induced to make verbal confessions on the basis that he would be released as an informer provided he first revealed information about IRA activities, and a written confession on the basis that he would only get a two or three-year sentence; that notwithstanding the applicant’s request to consult with a solicitor the police had, pending the solicitor’s arrival, persisted in questioning the applicant; and that in these circumstances, whether severally or as a whole, the confession evidence should be excluded so as to avoid unfairness or otherwise in the interests of justice.

In rejecting the applicant’s argument under section 11(3) of the Act, the trial judge found that there was no medical evidence to support the assertion that the applicant was mentally handicapped. In this connection he noted that the consultant psychiatrist called by the applicant did not suggest that the applicant was mentally handicapped. As to the claim that the applicant was a vulnerable personality, the trial judge on the basis of the totality of the evidence

“[was] entirely satisfied that the [applicant] was in no sense a mentally handicapped person or a vulnerable personality …. I consider him to be a ‘street-wise’ person who did not require the presence of a friend or solicitor so that his interviews could be considered fair.”

Furthermore the trial judge rejected as lies the applicant’s evidence that he had, in confessing, been offered inducements by the interviewing officers. He also ruled that the relevant domestic law did not, in circumstances where a terrorist suspect had requested to consult with a solicitor, automatically require the interview to cease pending the solicitor’s arrival, and that Detective Superintendent H. had properly authorised the continuation of the interview in accordance with paragraph 33(b)(ii) of the non-statutory guidelines issued by the Secretary of State on the grounds that awaiting the arrival of the solicitor would cause unreasonable delay in the process of investigation. The trial judge was, in the circumstances, satisfied that it was fair to interview the applicant without waiting for his solicitor, that the confession evidence was reliable, and that he could properly act on it in convicting the applicant.

The applicant’s counsel contended in addition at the voir dire hearing that the applicant, on the morning of his arrest on 21 June 1993, had headaches and an upset stomach caused by heavy drinking the night before, and that he was not fit to be interviewed. These claims were rejected by the trial judge, who noted that no mention of them had been made to Dr H. or to police officers at the time. The judge accepted Dr H.’s evidence that the applicant was fit to be interviewed and considered that the complaints were a “deliberate exaggeration”.

On 11 July 1994 the applicant was convicted on 25 of the 33 counts in the indictment and sentenced to 18 years’ imprisonment.

The applicant appealed against conviction. On appeal the applicant challenged the judge’s findings in respect of the issues raised under section 11(3) of the 1991 Act. In respect of the denial of access to a solicitor, the applicant raised the further point that following the decision of the Commission in the case of John Murray v. the United Kingdom (see the John Murray v. the United Kingdom judgment of 8 February 1996, Reports of Judgments and Decisions 1996-I, p. 66, opinion of the Commission) the denial of access to a solicitor was such as to deprive the applicant of a fair trial, and that accordingly the trial judge had erred in the exercise of his discretion in not excluding the confession evidence. The applicant did not challenge on appeal the ruling of the trial judge that the admissions had not been obtained through violence or threats of violence.

Following a review of the transcript of the evidence before the trial judge on the voir dire , the Court of Appeal ( Hutton LCJ) upheld the trial judge’s findings in respect of the points which had been raised on behalf of the applicant under section 11(3) of the Act. In respect of the applicant’s further contention that in view of the decision of the Commission in the John Murray v. the United Kingdom case the trial judge had erred in not excluding the evidence, the Court of Appeal ruled that:

“The only right which Parliament intended to give a terrorist suspect in respect of access to a solicitor was the right to consult privately, after he had requested such a consultation given by section 45 [of the 1991 Act], subject to the restrictions set out in section 45(8). Moreover section 45 contains no prohibition against the police interviewing a terrorist suspect before his solicitor arrives to consult with him. ... [I]t is clear that a judge would be acting contrary to the will of Parliament if he were to hold in the exercise of his discretion under section 11(3) of the 1991 Act that an admission made by a terrorist suspect in an interview must be excluded from evidence on the sole ground that it was unfair that the suspect’s solicitor was not present at the interview or that the solicitor had not consulted with him prior to the interview.”

The Court of Appeal accordingly held that the trial judge had properly exercised his discretion in not excluding the confession evidence under section 11(3) of the Act.

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 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: see section 66(12) of the 1989 Order which 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.”

The admissibility of confession evidence is governed by section 11 of the Northern Ireland (Emergency Provisions) Act 1991 which provides, inter alia , for the exclusion of confession evidence under section 11(2)(b) where that evidence has been obtained by violence or threat of violence, or under section 11(3):

“... in the case of any statement made by the accused and not obtained by so subjecting him as mentioned in subsection (2)(b) above, the court ... has a discretion [to exclude the statement] 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.”

COMPLAINTS

The applicant complains that in breach of paragraph 1 in conjunction with paragraph 3 (c) of Article 6 of the Convention he did not receive a fair trial because, in convicting him, the court relied on admissions made when his solicitor was not permitted to be present and in circumstances where a caution had been administered in accordance with Article 3 of the Criminal Evidence (Northern Ireland) Order 1988. The applicant relies directly on the judgment of the Court in John Murray v. the United Kingdom (judgment of 8 February 1996, Reports of Judgments and Decisions 1996-I, p. 30).

PROCEDURE

The application was introduced on 12 December 1995 and registered on 22 March 1996.

On 30 June 1997 the European Commission of Human Rights decided to communicate the application to the respondent Government.

The Government’s written observations were submitted on 7 October 1997. The applicant replied on 23 February 1998, after an extension of the time-limit.

On 24 April 1998 the Commission granted the applicant legal aid.

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 complains that he did not receive a fair trial in that the court relied upon confession evidence obtained in the course of police interviews at which his solicitor was not permitted to be present and in circumstances where he had been cautioned under Article 3 of the Criminal Evidence (Northern Ireland) Order 1988. The applicant invokes Article 6 § 1 of the Convention in conjunction with paragraph 3 (c) thereof which, in so far as relevant, provide:

“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... 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 ... through legal assistance of his own choosing  … .”

The Government averred that the applicant’s case is fundamentally different from the facts of the case of John Murray v. the United Kingdom on which the applicant relied. In their submission the applicant in the instant case had made admissions of guilt during interview and not statements of facts which could be subsequently relied on in his defence. They referred to the terms of Article 3 of the 1988 Order in this connection in support of their contention that there was no causative link between the admissions he made and the caution administered.

The applicant contended that the respondent Government had placed an overly restrictive interpretation on the principles contained in the above-mentioned John Murray judgment. He submitted that, like Mr Murray, he had been faced with the dilemma of remaining silent during interview, with the risk that adverse inferences might be drawn at his trial from his silence, or replying to police questions with the risk that his defence might be prejudiced as a result. The applicant asserted that the resolution of that dilemma entitled him, as a matter of fairness, to have access to a solicitor. He submitted that under the compulsion of the Article 3 caution he had been obliged to admit to the offences put to him on the second day of his questioning and prior to the arrival of his solicitor.

The Government replied that the applicant expressly stated upon his arrival at Castlereagh Police Office that he did not wish to consult a solicitor. In these circumstances, it was not open to the applicant to maintain that access to a solicitor was delayed. They stressed that as soon as the solicitor arrived the applicant was able to consult with him privately. As to whether questioning should have been suspended as a matter of procedural fairness when the applicant first requested a solicitor, the Government observed that the applicant accepted at his trial and before the Court of Appeal that his admissions and the detailed description of his involvement in a series of terrorist crimes were accurate and truthful. Furthermore, the trial judge specifically found on the facts that the applicant had been treated fairly and properly throughout the interviewing process.

The Government further stated that both the trial judge and the Court of Appeal concluded that the applicant’s admissions during interview were properly admitted in evidence and rejected his argument that the admissions were obtained by means of inducements and threats. In their view, the most effective procedural safeguard against the admission of the evidence which the applicant alleged had been unfairly procured was the adversarial nature of his trial and the review carried out by the Court of Appeal of the trial judge’s findings of fact and the reasons supporting those findings.

The applicant submitted that there was a serious and effective delay in allowing him access to his solicitor and that no good cause had been shown to justify that delay. That delay lasted some 2 hours and 50 minutes during which time he was prevailed upon under the compulsion of an Article 3 caution to make admissions in circumstances which were disputed at his trial. Those admissions supplied the only basis on which he was charged, tried and finally convicted. The applicant contended that he was encouraged to incriminate himself during that critical period without being informed that his solicitor was unavailable and without being asked whether he would like to contact an alternative solicitor.

The applicant further stressed that the central issue before the domestic courts was not whether he had admitted to the accuracy of the oral and written statements made during interview. It was, rather, whether or not those statements has been obtained in a manner which respected his right not to incriminate himself. He contended that the fairness of his trial had been prejudiced by the initial failure of the authorities to afford him the rights guaranteed to an accused person under Article 6 of the Convention. In that respect he maintained that the Government were wrong to assert that an ex post facto examination at trial, however scrupulous, was a sufficient safeguard against unfairness at the interview stage. On the contrary, the only effective safeguard which would have redressed the imbalance between his skilled interrogators and his deficiencies and vulnerability would have been to allow his solicitor to have been present throughout the interviews and for an independent record to have been made of what actually was said on those occasions.

The Court notes at the outset that the trial judge was not called upon to draw adverse inferences from the applicant’s silence during interview. The applicant at no stage relied on his right to remain silent in the face of police questioning. At his trial the prosecution based its case against the applicant on the fact that he confessed to his involvement in a series of terrorist offences and signed a statement to that effect. The central issue before the domestic court, and this point also formed the subject matter of his appeal, was the admissibility of the confession statements which grounded his conviction. In this respect the applicant’s complaint is to be distinguished from the first challenge which the applicant John Murray mounted before the Convention institutions to the fairness of his trial, namely that his right to silence and his right not to incriminate himself had been violated on account of the drawing of adverse inference of guilt by the trial judge from his silence during interview as well as at his trial.

The Court does not dispute the validity of the applicant’s contention that the administration of a caution to an accused pursuant to Article 3 of 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 John Murray judgment the Court observed 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 (see the John Murray judgment, loc. cit., p. 55, § 66).

However, the Court is not persuaded by the applicant’s argument that the impugned statements were made as a result of any inherent compulsion in the caution, especially since he answered under caution the questions put to him by the police on the first day of his interrogation, had specifically declined to see a solicitor before being questioned and, even after his consultation with his solicitor on the second day, continued to admit to his involvement in terrorist offences.

In the Court’s view, the essence of the applicant’s complaint is not that he was denied access to legal advice to enable him to choose between silence and participation in the face of police questioning, but that he made incriminating statements during the critical period between the time when the police contacted his solicitor and the time the latter arrived at Castlereagh Police Office. The Court will accordingly examine the complaint in that wider context.

It recalls in this connection 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 judgment 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).

Against that background the Court notes that the applicant was convicted not only on the basis of his confession statements made between the time he requested to see his solicitor and the time of the latter’s arrival, but also on those made following the consultation with the solicitor. Indeed, it was only after he had sought his solicitor’s advice that he made a full confession. The police had made efforts to reach the solicitor before questioning recommenced on the second day, but to no avail. They left a message at the solicitor’s office requesting him to come to the police station. In the Court’s view the applicant’s right to consult his solicitor in these circumstances cannot be said to have been denied or deliberately delayed. It further observes that the trial judge refuted any suggestion that the applicant was of a vulnerable disposition. The trial judge heard the applicant in person, found him to be “street-wise” and concluded that he had been fairly and properly treated by the police during questioning. It can be reasonably concluded that the applicant fully understood the implications of the caution and could, without the benefit of legal advice, have held his silence knowing that a message had been left with his solicitor to come to the police station. It also notes in this connection that the applicant considered himself capable of dealing unassisted with the process of interrogation on the first day of his detention. In these circumstances, the Court does not propose to speculate on whether the presence of the applicant’s solicitor during interview would have led him to deny his involvement in the offences about which he was questioned.

The Court must also have regard to the safeguards which were in place to test the fairness of admitting the confession statements taken from the applicant. It recalls in this respect that the rules on admissibility and the assessment of evidence are principally matters for domestic courts to determine. It is not, as a general rule, for the Court to substitute its own assessment of the evidence made by a domestic court save in circumstances where the domestic court’s assessment was arbitrary or capricious, or the system of guarantees or safeguards which applied in the assessment of the reliability of confession evidence were manifestly inadequate (see the Edwards v. the United Kingdom judgment of 16 December 1992, Series A no. 247-B, pp. 34-35, § 34).

It is to be noted that in the instant case the circumstances in which the confession evidence was obtained were subjected to strict scrutiny on the voir dire . The applicant was represented both at his trial and on appeal by experienced counsel. The trial judge heard the applicant in person as well as the police officers who questioned him at Castlereagh Police Office. The trial judge, whose findings were upheld by the Court of Appeal following extensive review of the evidence presented in the course of the voir dire , was satisfied as to its reliability and the fairness of admitting the evidence. The Court also notes that the applicant does not complain that the decision of either court was in any way arbitrary, or that there was inadequate inquiry into the circumstances in which the confession evidence was obtained such that neither court could have reached a properly informed assessment as to its reliability or fairness.

For the above reasons, the Court finds that the applicant’s complaint discloses no appearance of a violation of Article 6 § 1 of the Convention taken in conjunction with Article 6 § 3 (c) thereof. It follows, therefore, 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, by a majority,

DECLARES THE APPLICATION INADMISSIBLE .

S. Dollé J.-P. Costa

Registrar President