INTERIM resolution DH (2000) 26

CONCERNING THE JUDGMENT OF THE EUROPEAN COURT OF HUMAN RIGHTS OF 8 FEBRUARY 1996 IN THE CASE OF JOHN MURRAY AGAINST THE UNITED KINGDOM

(Adopted by the Committee of Ministers on 14 February 2000 at the 695th meeting of the Ministers’ Deputies)

The Committee of Ministers, under the terms of Article 54 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as “the Convention”),

Having regard to the judgment of the European Court of Human Rights in the John Murray case delivered on 8 February 1996 and transmitted the same day to the Committee of Ministers;

Recalling that the case originated in an application (No. 18731/91) against the United Kingdom, lodged with the European Commission of Human Rights on 16 August 1991 under Article 25 of the Co n vention by Mr John Murray , a British national, and that the Commission declared admissible the complaints that the provision of the Criminal Evidence Order 1988 which permits inferences to be drawn by a tribunal from the failure of the accused to answer police questions or to give evidence and their use in determining his guilt had constituted a violation of his right to a fair trial and of the presumption of innocence; that denying the applicant access to a solicitor during the first forty-eight hours of police custody amounted to a violation of Article 6, paragraph 3. c, of the Convention; and, that the practice in Northern Ireland not to allow access to a lawyer, unlike the practice in England and Wales, was discriminatory;

Recalling that the case was brought before the Court by the Commission on 9 September 1994 and by the Government of the respondent State on 11 October 1994;

Whereas in its judgment of 8 February 1996 the Court:

- held, by fourteen votes to five, that there had been no violation of Article 6, paragraphs 1 and 2, of the Convention arising out of the drawing of adverse inferences on account of the applicant's silence;

- held, by twelve votes to seven, that there had been a violation of Article 6, paragraph 1, in conjunction with Article 6, paragraph 3. c , of the Convention as regards the applicant's lack of access to a lawyer during the first forty-eight hours of his police detention;

- held, unanimously, that it was not necessary to examine the applicant's complaint of a violation of Article 14 in conjunction with Article 6;

- held, unanimously, that, as regards pecuniary and non-pecuniary damage, the finding of a violation of Article 6, paragraph 1, in conjunction with paragraph 3. c , constituted, in itself, sufficient just satisfaction for the purposes of Article 50 of the Convention;

- held, unanimously, that the Government of the respondent State was to pay, within three months, for costs and expenses 15 000 pounds sterling less 37 968.60 French francs to be converted into pounds sterling at the rate of exchange applicable on the date of delivery of the present judgment and that simple interest at an annual rate of 8% should be payable from the expiry of the above-mentioned three months until settlement;

- dismissed, unanimously, the remainder of the claim for just satisfaction;

Having regard to the Rules adopted by the Committee of Ministers concerning the application of Art i cle 54 of the Convention;

Having invited the Government of the respondent State to inform it of the mea s ures which had been taken in consequence of the judgment of 8 February 1996, having regard to the United Kingdom’s obligation under Article 53 of the Conve n tion to abide by it;

Considering that High Contracting Parties are required to take the necessary measures to conform herewith, notably by preventing new violations of the Convention similar to those found in the Court's judgments;

Whereas the Government of the respondent State provided the Committee of Ministers with information about the measures taken so far to this effect (this information appears in the Appendix to this resolution);

Having satisfied itself that on 30 April 1996, within the time-limit set, the Government of the respondent State paid the a p plicant the sum provided for in the judgment of 8 February 1996,

Declares, after having taken note of the information supplied by the Government of the United Kingdom, that it has provisionally exe r cised its functions under Article 54 of the Convention in this case;

Decides to resume consideration of this case, as far as general measures are concerned, when the Act on "Youth Justice and Criminal Evidence" enters into force or, at the latest, at one of its meetings in September 2000.

Appendix to Interim Resolution DH (2000) 26

Information provided by the Government of the United Kingdom during the examination of the John Murray case

by the Committee of Ministers

The Government of the United Kingdom expresses its regret concerning the time it has taken to identify the necessary measures to implement this case.  It points out that the important problems caused by the developments of the situation in Northern Ireland since the adoption of the judgment of the European Court of Human Rights have made it difficult to find a permanent solution taking into account all the pertinent elements (including the protection of lawyers having access to persons arrested in connection with terrorist activities).

The government has, nonetheless, identified and taken a number of important steps to prevent a repetition of the circumstances that arose in the case of John Murray.  The judgment in this case concerned the interaction of two pieces of legislation and careful consideration was necessary before determining the most appropriate way to respond to the Court's ruling.  The Government consulted on a number of options for change and, on 1 December 1998, announced an interim administrative solution pending the introduction and implementation of legislation.

Guidance was issued in December 1998 to prosecutors and the police both in England and Wales and in Northern Ireland.  This guidance seeks to ensure that the usual practice will be for suspects to have access to legal advice before being interviewed at a police station.  Where access to legal advice is denied, the police are encouraged to put questions from which inferences might be drawn again, after the suspect has been given the opportunity to obtain such advice.  Additionally, prosecutors have been advised not to seek reliance on inferences drawn from silence before access to legal advice was granted.  Where the court, of its own volition, indicates an intention to draw such inferences, prosecutors are advised to draw its attention to the judgment of the European Court in this case.

In December 1998, the government introduced legislation which included an amendment to the relevant law so as to prohibit the drawing of inferences from silence when a suspect is being questioned at a police station or other authorised place of detention, when he or she has been denied access to legal advice.  The Youth Justice and Criminal Evidence Act 1999 received royal assent in July 1999.  Before the relevant provision of this Act (Section 58) can be implemented in England and Wales, it will be necessary to make certain amendments to the Code of Practice Covering the detention, treatment and questioning of persons by police officers which is issued under the Police and Criminal Evidence Act 1984.  In particular, these amendments will relate to the terms in which suspects are cautioned or warned about the consequences of a failure or refusal to answer questions.

Amendments to the Code involve extensive public consultation and the changes proposed must be debated in both  Houses of Parliament.  A review of the Codes of Practice has begun and the aim is to bring in a revised Code C by summer 2000, which will enable the implementation of Section 58 of the Youth Justice and Criminal Evidence Act 1999.

Similar legislation for Northern Ireland (the Criminal Evidence (Northern Ireland) Order 1999) was made in October 1999.  Before the relevant provision of this Order (Article 36) can be implemented, the Codes of Practice under the Police and Criminal Evidence (Northern Ireland) Order 1989 will need to be amended.

The further information about the necessary legislative changes should be available towards the end of the year 2000. The Government therefore suggests the postponement of the Committee of Ministers' examination of the case until December 2000.