JOINT PARTLY DISSENTING OPINION OF JUDGES RYSSDAL, MATSCHER, PALM, FOIGHEL, SIR JOHN FRE ELAND, WILDHABER AND JUNGWIERT

1.  We are unable to agree with the conclusion of the majority that there has been a violation of Article 6 para . 1 in conjunction with paragraph 3 (c) (art. 6-1+art. 6-3-c) of the Convention as regards the applicant ’ s lack of access to a solicitor during the first 48 hours of his police detention.

2.  We have no difficulty with paragraphs 41 to 58 of the judgment, in which the Court, after a careful analysis, rejects the contention that the criminal proceedings were unfair or that there had been an infringement of the presumption of innocence and accordingly concludes that there has been no violation of Article 6 paras . 1 and 2 (art. 6-1, art. 6-2) of the Convention. In the course of that analysis the Court points out (paragraph 44) that it "must, confining its attention to the facts of the case, consider whether the drawing of inferences against the applicant ... rendered the criminal proceedings against him - and especially his conviction - unfair within the meaning of Article 6 (art. 6)" and goes on to say that "[ i ]t is not the Court ’ s role to examine whether,in general, the drawing of inferences under the scheme contained in the Order is compatible with the notion of a fair hearing under Article 6 (art. 6) ..." (emphasis added).  In our view this approach, stressing as it does the actual facts of the case, is entirely correct.

3.  When, however, the judgment comes to deal with the question of access to a lawyer, a rather different approach is adopted.  After some general observations about the application of Article 6 (art. 6) at the stage of preliminary investigation by the police, the Court acknowledges that the right of an accused to benefit from the assistance of a lawyer "already at the initial stages of police interrogation ..., may be subject to restrictions for good cause".  It adds that 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" (paragraph 63).

4.  The Court then, after giving some consideration to the exercise of the power of restriction under section 15 of the 1987 Act which took place in this case, expresses in paragraph 66 of the judgment the opinion 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 paragraph concludes by saying that to "deny access to a lawyer for the first 48 hours of police questioning, in a situation where the rights of the defence may well be irretrievably prejudiced, is - whatever the justification for such denial - incompatible with the rights of the accused under Article 6 (art. 6)".

5.  We consider the focus here to be misdirected.  It has not been suggested that in the circumstances existing at the relevant time in Northern Ireland it was unreasonable that a power should be available to a senior police officer under section 15 of the 1987 Act to delay access to a lawyer for a period not exceeding 48 hours when he had reasonable grounds for believing that earlier access would lead to interference with the gathering of information about acts of terrorism or by alerting any person would make more difficult the prevention of such an act or the apprehension, prosecution or conviction of any person in connection therewith.  As regards the exercise of the power, the Court pointed out in Brannigan and McBride v. the United Kingdom (judgment of 26 May 1993, Series A no. 258-B, p. 43, para . 24, and p. 55, para . 64) that within the period of 48 hours access to a solicitor can only be delayed where there exist reasonable grounds for doing so.  "It is clear", the Court added, "from judgments of the High Court in Northern Ireland that the decision to delay access to a solicitor is susceptible to judicial review and that in such proceedings the burden of establishing reasonable grounds for doing so rests on the authorities.  In these cases judicial review has been shown to be a speedy and effective manner of ensuring that access to a solicitor is not arbitrarily withheld ...".

6.  In the present case, as paragraph 65 of the judgment observes, although the applicant now contests before the Court the lawfulness of the exercise of the power to delay his access to a lawyer, he did not seek to challenge such exercise by instituting proceedings for judicial review.  The Court rightly concludes that it has itself no reason to doubt that the exercise of the power was lawful.

7. In these circumstances, the question to be dealt with by the Court, consistently with the approach followed in the earlier part of the judgment, should in our view be whether, on the facts of the case, the drawing of an inference from conduct on the part of the applicant prior to his access to a solicitor rendered the criminal proceedings against him - and especially his conviction - unfair within the meaning of Article 6 (art. 6) of the Convention.  As to this, it should be noted that the trial judge had a discretion as to the drawing of inferences under the 1988 Order and in fact drew no inference against the applicant under its Article 3.  The refusal of the applicant to give evidence in his own defence when called upon at the trial to do so, which formed the basis for the adverse inference drawn by the trial judge under Article 4 of the 1988 Order, of course took place at a time when legal advice had become available to him. The issue therefore resolves itself into whether the drawing of an inference against the applicant under Article 6 of the 1988 Order by reason of his failure to give an account of his presence in the house at 124 Carrigart Avenue when cautioned by the police on the evening of 7 January 1990 - that is, before he obtained access to a lawyer - rendered his trial and conviction unfair.

8.  In this context the following should be recalled.

(a) The caution given to the applicant on the evening of 7 January 1990 warned him quite clearly of the possibility of an adverse inference being drawn form a failure or refusal on his part to account for his presence at 124 Carrigart Avenue .  There is no ground for believing that he failed to understand the caution.

(b) He nevertheless remained silent, both before and after he obtained access to legal advice.  At no stage has he argued that he would or could have provided an innocent explanation.

(c) The applicant ’ s silence in the period before he received legal advice did not necessarily entail prejudice to his defence. Articles 3 and 6 of the 1988 Order had become applicable as a result of that silence, but whether adverse inferences would be drawn at the trial was a matter for the judge (who, as has been noted, drew no such inference under Article 3).  If the judge were to be satisfied - as he might be, if for example the applicant had offered an innocent explanation as soon as he had consulted his solicitor - that in any particular set of circumstances it would not be proper to draw an adverse inference, he would not do so.  Clearly, in the present case, he concluded in the exercise of his discretio n that an Article 6 (art. 6) inference could properly be drawn.  No cogent reason has been established for him to have concluded otherwise.

(d) The adverse inferences drawn against the applicant by reason of his conduct either before or after obtaining access to a solicitor were far from being the sole or even main basis for his conviction.  As paragraph 26 of the judgment recalls, the Court of Appeal in Northern Ireland considered, for all the reasons which it gave, that there was "a formidable case" against him.

9.  Taking account of these factors, we conclude that the applicant has failed to establish that, in the circumstances of his case, the drawing of an inference against him by reason of conduct on his part before he obtained access to legal advice caused any unfairness in his trial and conviction.  We therefore do not agree that the delay of access involved a violation of Article 6 (art. 6).  We consider that the majority of the Court, in making the linkage at paragraph 66 between "the scheme contained in the Order" and the right of access to a lawyer, strays unjustifiably far from the specific circumstances of the instant case.

10.  To say this is not, of course, to dispute in any way the desirability in principle of early access by an accused to legal advice or that Article 6 (art. 6) may, as the Court found in Imbriosci a v. Switzerland (see paragraph 62 of the judgment), be relevant before a case is sent for trial so as to safeguard the right to a fair hearing.