CONCURRING OPINION OF MR N. BRATZA

I have with some hesitation voted in favour of the majority's conclusion that there has been no violation of Article 6 para. 1 of the Convention in respect of the drawing of adverse inferences from the applicant's silence when questioned by the police.

I see force in the view of certain members of the Commission that the case against the applicant was not on its face as strong as that which was considered by the Court in its John Murray judgment (Eur. Court H.R., John Murray v. the United Kingdom judgment of 8 February 1996, Reports and Judgments and Decisions 18 1996-I, p. 30) and that, unlike the applicant in that case, the present applicant had not maintained total silence throughout but had when initially detained by the police given a general account of his movements at the time of the offence in question.  Moreover, in contrast to the applicant in the earlier case, the present applicant gave evidence at his trial, which although more detailed then his original account to the police, was consistent with that account.

In addition, it is a matter of concern that the applicant did not in the event have access to a legal adviser before deciding whether to remain silent in the face of police questioning.  I remain of the view expressed in my partly concurring opinion in the John Murray case that the fact that an accused has access to legal advice before being required to take such a decision is a significant safeguard against unfairness in the drawing of adverse inferences from the accused's silence.

I have, however, in the end been persuaded that the drawing of such inferences under Article 3 of the 1988 order did not in all the circumstances deprive the applicant of a fair trial, for substantially the reasons given in the majority opinion.  In this regard I attach particular importance to the following factors:

( i ) as noted by the Court in the John Murray case, the drawing of inferences under the 1988 Order is subject to an important series of safeguards designed to respect the rights of the defence and to limit the extent to which reliance can be placed on inferences.  In particular:

(a) before inferences can be drawn, appropriate warnings must have been given as to the legal effects of maintaining silence;

(b) the prosecution must first establish a prima facie case against the accused, ie . a case consisting of direct evidence which, if believed and combined with legitimate inferences based upon it, could lead a properly directed jury to be satisfied beyond reasonable doubt that each of the martial elements of the offence is proved;

(c) the trial judge has a discretion whether, on the facts of the particular case, an inference should be drawn and, since in Northern Ireland a trial judge sits without a jury and must explain his reasons for the decision to draw inferences and the weight attached to them, the exercise of that discretion is subject to review by the appellate courts;

(d) while an adverse inference under Article 3 of the 1988 Order may be drawn even in a case where an accused has not had access to a solicitor prior to his interview by the police, the denial of such access in breach of the provisions of Section 15 of the Northern Ireland (Emergency Provisions) Act 1987 may justify a judge in refusing to draw an adverse inference under the Article.

(ii) the adverse inferences from the applicant's silence in the present case were by no means the only evidence against the applicant.  The forensic evidence relating to the firearms residue found in the applicant's jacket and the fibres found in his hair, combined with the statements of the O'Hagans , constituted important circumstantial evidence against him.  Further, the trial judge who had the invaluable advantage of seeing the applicant and Mr McCartan in the witness box had no hesitation in rejecting their alibi evidence as false: the trial judge concluded from the applicant's demeanour and from the way in which he gave his evidence that he had given a lying account as to what he was doing at the relevant time on 13 April 1988; as to Mr McCartan , the trial judge found it to be "patently obvious" from his demeanour and way of giving evidence that he was lying and that he had come into the witness box to give a totally untruthful account of what had happened on that date in order to assist the applicant.

(iii) there is, as in the John Murray case, no suggestion that the applicant failed to understand the significance of the caution given to him pursuant to Article 3 of the 1988 Order before he was advised by his solicitor.  Moreover, in contrast to the applicant in that case, the present applicant was not denied access to a solicitor, the police having attempted to contact one on his behalf.  In addition, as noted in the judgment of the Court of Appeal, Detective Inspector Cardew was not challenged when he said in evidence that if the applicant had asked for a postponement in order to enable him to consult a solicitor he would have immediately stopped the interview.

For these reasons, I agree with the majority of the Commission that the drawing of adverse inferences from the applicant's silence during his police interviews did not deprive him of a fair trial.

The question remains whether the fact that the applicant did not have access to a solicitor prior to his interview nonetheless gave rise to a violation of Article 6 para. 1 in conjunction with para. 3(c) of the Convention.

In the John Murray case I concluded that this question was inextricably linked with the question whether the drawing of adverse inferences against the applicant affected the fairness of his trial and that a similar finding of no violation should be reached.

However, in its judgement in that case, the majority of the Court treated the lack of access to a solicitor as giving rise to a separate issue under Article 6.  The Court held that the scheme contained in the 1988 Order is such that it is of paramount importance for the rights of the defence that an accused has access to a lawyer at the initial stages of police interrogation.  The Court noted the fundamental dilemma faced by an accused of choosing between remaining silent in the course of interrogation and thereby running the risk of adverse inferences being drawn against him, and breaking his silence, with the possible consequence of prejudicing his defence at trial.  In these circumstances the Court concluded that

"...the concept of fairness enshrined in Article 6 requires that the accused has the benefit of the assistance of a lawyer already at the initial stages of police interrogation." ( op.cit . p. 55, para 66).

I consider that this reasoning is of direct application in the present case.  It is true that, while the applicant in the John Murray case was intentionally denied access to a lawyer for the first 48 hours of police questioning, the present applicant was not as such refused access to a solicitor.  However, I do not consider that the distinction is such as to lead to a different conclusion.  I share the view of the majority of the Commission that, where a detainee has requested access to a solicitor but a solicitor is not immediately available, the interviewing of the detainee should in principle be postponed, at least for a reasonable period, until an accused has been able to receive legal advice.

Accordingly, following the judgment of the majority of the Court, I consider that there has been a violation of Article 6 para. 1 in this respect.

As regards the further issue under Article 6 para. 1 in conjunction with para. 3(d), I fully agree with the conclusion and reasoning of the Commission.

(Or. English)