Information Note on the Court’s case-law 19

June 2000

Averill v. the United Kingdom - 36408/97

Judgment 6.6.2000 [Section III]

Article 6

Criminal proceedings

Article 6-1

Fair hearing

Self-incrimination - drawing of adverse inferences from accused’s silence: violation

Article 6-3-c

Defence through legal assistance

Denial of access to lawyer during initial stages of interrogation: violation

Facts : The applicant w as stopped by police in Northern Ireland shortly after an armed attack in which two people were killed. The applicant told the police that he had been helping with sheep on a farm at the time. He was arrested and taken to army barracks for questioning; acc ess to a lawyer was deferred for 24 hours. The applicant was cautioned that adverse inferences could be drawn from his failure to mention facts later relied on in his defence, but remained silent throughout 37 interviews over several days. He had daily acc ess to a lawyer after the initial 24 hours. He was also cautioned that adverse inferences could be drawn from his failure to explain the presence of fibres on his clothing and person. He was charged with murder and tried by a single judge sitting without a jury. The prosecution case was based on forensic evidence linking the applicant to a balaclava and gloves found in the car which had been used in the attack. The applicant claimed that he had worn a balaclava and gloves when working on the farm. He was co nvicted, the judge having regard to the forensic evidence and also relying on “very strong adverse inferences” from the applicant’s failure to provide explanations during questioning. The applicant’s appeal was rejected.

Law : Article 6 § 1 - The extent to which adverse inferences may be drawn from an accused’s failure to respond to police questioning must necessarily be limited. There may be reasons why an innocent person would not be prepared to cooperate with the police, in particular be fore having an opportunity to consult a lawyer. Considerable caution is therefore required when attaching weight to the fact that a person arrested for a serious crime and denied access to a lawyer does not provide detailed responses to incriminating evide nce. In this case, the judge exercised a discretion in drawing inferences and also gave detailed reasons, which were scrupulously reviewed and endorsed by the appeal court. The applicant was not convicted solely or mainly on account of his silence: there w as a considerable body of forensic evidence and the applicant’s oral testimony did not advance his defence of alibi, since the judge found him to be dishonest and unreliable. Moreover, the judge dismissed the evidence of defence witnesses as lies. It canno t be said that the judge exceeded the limits of fairness, since he could properly conclude that the applicant could have been expected to provide explanations to the police. The presence of incriminating fibres called for an explanation and his failure to provide one allowed the drawing of adverse inferences, all the more so since he had access to a lawyer after 24 hours. The applicant was fully apprised of the implications of remaining silent and was therefore aware of the risks.

Conclusion : no violation ( 6 votes to 1).

Article 6 § 2 - The issue raised under this provision is a restatement of the applicant’s arguments under Article 6 § 1.

Conclusion : no violation (6 votes to 1).

Article 6 § 1 and § 3 (c) - The scheme permitting the drawing of adverse infere nces makes it of paramount importance for an accused to have access to a lawyer at the initial stages of police questioning, since the accused is confronted with the fundamental dilemma of whether to remain silent or not. Although the period in this case i s shorter than that in John Murray v. the United Kingdom ( Reports 1996-I), a refusal to allow access to a lawyer during the first 24 hours must still be seen as incompatible with Article 6. In that period the rights of the defence may well be irretrievably prejudiced and in this case the judge in fact invoked the applic ant’s silence during the initial period against him. As a matter of fairness, access to a lawyer should have been guaranteed before the applicant’s interrogation began.

Conclusion : violation (unanimously).

Article 41 - The Court cannot speculate on the out come of the applicant’s trial had he had access to a lawyer earlier. The finding of a violation in itself constitutes just satisfaction. The Court made an award in respect of costs.

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

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