PARTLY DISSENTING OPINION OF JUDGE WALSH, JOINED BY JUDGES MAKARCZYK AND LO HMUS

1.   In my opinion there have been violations of Article 6 paras . 1 and 2 (art. 6-1, art. 6-2) of the Convention.

The applicant was by Article 6 para . 2 (art. 6-2) guaranteed a presumption of innocence in the criminal trial of which he complains.  Prior to the introduction of the Criminal Evidence ( Northern Ireland ) Order 1988 a judge trying a case without a jury could not lawfully draw an inference of guilt from the fact that an accused person did not proclaim his innocence. Equally in a trial with a jury it would have been contrary to law to instruct the jurymen that they could do so (see the judgment of the Northern Ireland Court of Appeal in the case of R. v. Kevin Sean Murray).  In the same judgment the Northern Ireland Court of Appeal held that the object and effect of the 1988 Order was to reverse that position.

In the judgment of the House of Lords in the R. v. Kevin Sean Murray case which upheld the decision of the Northern Ireland Court it was pointed out that the time for drawing such inferences as the Order purported to permit was after the judge was satisfied that the prosecution had established a prima facie case of the guilt of the accused and that if it had not, the accused must be acquitted.

In a criminal prosecution the burden of proof of guilt beyond reasonable doubt always rests on the prosecution. Therefore a prima facie case means one in which the evidential material presented by the prosecution, if believed and not rebutted, is sufficient in law to establish the guilt of the accused.  In adjudicating on this point the trial judge need not at that stage disclose, or arrive at, his own view as to the truth but he must be satisfied that it is, if believed, objectively sufficient in law to warrant a verdict of guilty if not rebutted.

The verdict itself cannot be determined until after all the evidence has been received by the court.

2.  It is obvious from the House of Lords decision in R. v. Kevin Sean Murray that inferences which are not to be drawn until a prima facie case has been established cannot form part of the decision as to whether or not a prima facie case has been established notwithstanding Article 3 of the Order.  Therefore where the accused has maintained silence that fact cannot be relied upon to establish a prima facie case.

3.  To rely upon it afterwards appears to me to negative the whole intent of Article 6 para . 2 (art. 6-2).  To permit such a procedure is to permit a penalty to be imposed by a criminal court on an accused because he relies upon a procedural right guaranteed by the Convention.  I draw attention to the decision of the Supreme Court of the United States in Griffin v. State of California (1965) 380 US , 609, which dealt with a similar point in relation to the Fifth Amendment of the Constitution by striking down a Californian law which permitted a court to make adverse comment on the accused ’ s decision not to testify.

In Miranda v. Arizona (1966) 384 US, 436, the US Supreme Court affirmed that the constitutional protection against self-incrimination contained in the Fifth Amendment guarantees to the individual the "right to remain silent unless he chooses to speak in the unfettered exercise of his own free will" whether during custodial interrogation or in court. This Court in its judgment in Funke v. France (Series A no. 256-A) said that "the special features of customs law ... cannot justify ... an infringement of the right of anyone ‘ charged with a criminal offence ’ , within the autonomous meaning of this expression in Article 6 (art. 6), to remain silent and not to contribute to incriminating himself" (p. 22, para . 44).

4.  I am in agreement with the majority that the refusal to permit the applicant to have his lawyer present when he had so requested was also a breach of Article 6 (art. 6).  To round off the account of the circumstances of the applicants pre-trial experiences it is to be noted that the facts of the case reveal a clear breach of Article 5 para . 3 (art. 5-3) of the Convention.

5.  For the above reasons I have concluded that there has also been a breach of Article 6 para . 2 (art. 6-2).

[1] The case is numbered 41/1994/488/570.  The first number is the case's position on the list of cases referred to the Court in the relevant year (second number).  The last two numbers indicate the case's position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission.

[2] Rules A apply to all cases referred to the Court before the entry into force of Protocol No. 9 (P9) (1 October 1994) and thereafter only to cases concerning States not bound by that Protocol (P9).  They correspond to the Rules that came into force on 1 January 1983, as amended several times subsequently.

[3] For practical reasons this annex will appear only with the printed version of the judgment (in Reports of Judgments and Decisions - 1996), but a copy of the Commission's report is obtainable from the registry.