Information Note on the Court’s case-law 35

October 2001

Brennan v. the United Kingdom - 39846/98

Judgment 16.10.2001 [Section III]

Article 6

Article 6-3-c

Defence through legal assistance

Deferral of access to lawyer: no violation

Use in evidence of confessions made to police in absence of lawyer: no violation

Police supervision of detainee's consultation with lawyer: violation

Facts : The applicant was arres ted in Northern Ireland in the early morning of 21 October 1990 under counter-terrorism legislation. Access to a lawyer was deferred for 24 hours. The applicant's lawyer, who was informed of the deferral, did not attend until 12.10 p.m. on 23 October. In t he meantime, but after expiry of the deferral of access to a lawyer, the applicant had made a number of admissions. The first interview with the lawyer took place within the sight and hearing of a police officer. The lawyer was not allowed to attend any of the police interviews, which were not recorded. At his trial, the applicant challenged the admissibility of the statements which he had made to the police, alleging that they had been obtained by coercion. In the course of a voir dire the applicant gave a detailed account of the alleged ill-treatment, which was denied by the police. The judge rejected the allegations and convicted the applicant of various offences, including murder. The disputed admissions were the only evidence. The applicant's appeal was rejected.

Law : Article 6 § 1 and § 3 (c) (access to lawyer) – After the expiry of the initial 24-hour deferral the applicant was no longer being denied access to a lawyer and the fact that his lawyer only arrived a day later was not attributable to any me asure imposed by the authorities. Moreover, the applicant had not made any admissions during the period when access to a lawyer was being denied. In the circumstances, the denial of access could not be regarded as infringing his rights.

Conclusion : no viol ation (unanimously).

Article 6 § 1 and  § 3 (c) (police interviews) – In assessing the fairness of admitting the applicant's confessions in evidence, it was necessary to have regard to the safeguards which existed. Firstly, the circumstances in which the confessions were obtained were subjected to s trict scrutiny in the voir dire . Secondly, the applicant was represented by experienced counsel at the trial and on appeal. Thirdly, the trial judge had heard the applicant and the police officers and was satisfied as to the reliability of the evidence and the fairness of admitting it. The applicant did not complain that there was any arbitrariness on the part of the courts or that there was inadequate inquiry into the circumstances in which the confessions were obtained. Moreover, while both the recording of interviews and the attendance of a lawyer provide safeguards against police misconduct, they are not indispensable preconditions of fairness. The adversarial procedure conducted before the trial court was capable of bringing to light any oppressive cond uct by the police and in the circumstances the lack of additional safeguards had not been shown to have rendered the applicant’s trial unfair.

Conclusion : no violation (unanimously).

Article 6 § 1 and § 3 (c) (police supervision of interviews) – An accused’s right to communicate with his lawyer out of the hearing of third persons is part of the basic requirements of a fair trial and follows from Article 6 § 3(c); if a lawyer were unable to confer with his c lient and receive confidential instructions without surveillance, his assistance would lose much of its usefulness. Indeed, the importance of such confidentiality is illustrated by various international provisions. The right of access to a lawyer may be su bject to restrictions for good cause and the question is whether the restriction has, in the light of the proceedings as a whole, deprived the accused of a fair trial. In that respect, while an applicant need not prove that the restriction had a prejudicia l effect on the course of the trial, he must be able to claim to have been directly affected by the restriction in the exercise of his defence rights. In the present case, the restriction served the purpose of preventing information being passed on to susp ects still at large, but there was no allegation that the lawyer was in fact likely to collaborate in such an attempt. At most, it appeared that the presence of the police officer would have had some effect in inhibiting any improper communication of infor mation. While there was no reason to doubt the good faith of the police, there was no compelling reason for the imposition of the restriction. As to the proportionality of the restriction, although the police officer was present at only one interview, it w as the first occasion on which the applicant had been able to seek advice from his lawyer and the presence of the police officer would inevitably have prevented the applicant from speaking frankly about matters of potential significance to the case against him. It was immaterial that it had not been shown that there were particular matters which the applicant and his lawyer were stopped from discussing. It was indisputable that the applicant was in need of legal advice at the time and that his responses in subsequent interviews, which were to take place in the absence of his lawyer, would continue to be of potential relevance to his trial and could irretrievably prejudice his defence. The presence of the police officer within hearing therefore infringed the applicant's right to an effective exercise of his defence rights.

Conclusion : violation (unanimously).

Article 41 – The Court considered that the finding of a violation constituted sufficient just satisfaction in respect of non-pecuniary damage. It made an award in respect of costs and expenses.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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