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European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> JOHN MURRAY v. THE UNITED KINGDOM - 18731/91 - Grand Chamber Judgment  ECHR 3 (08 February 1996)
Cite as:  ECHR 3, 22 EHRR 29, (1996) 22 EHRR 29
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COURT (GRAND CHAMBER)
CASE OF JOHN MURRAY v. THE UNITED KINGDOM
(Application no. 18731/91)
8 February 1996
In the case of John Murray v. the United Kingdom ,
The European Court of Human Rights, sitting, pursuant to Rule 51 of Rules of Court A , as a Grand Chamber composed of the following judges:
Mr R. Ryssdal, President,
Mr R. Bernhardt,
Mr F. Matscher,
Mr L.-E. Pettiti,
Mr B. Walsh,
Mr N. Valticos,
Mr S.K. Martens,
Mrs E. Palm,
Mr I. Foighel,
Mr R. Pekkanen,
Mr A.N. Loizou,
Mr F. Bigi,
Sir John Freeland,
Mr M.A. Lopes Rocha,
Mr L. Wildhaber,
Mr J. Makarczyk,
Mr D. Gotchev,
Mr K. Jungwiert,
Mr U. Lohmus,
and also of Mr H. Petzold, Registrar,
Having deliberated in private on 28 September 1995 and 25 January 1996,
Delivers the following judgment, which was adopted on the last-mentioned date:
The Commission’s request referred to Articles 44 and 48 (art. 44, art. 48) and to the declaration whereby the United Kingdom recognised the compulsory jurisdiction of the Court (Article 46) (art. 46). The object of the request and of the Government’s application was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Article 6 paras. 1 and 2 and Article 14 (art. 6-1, art. 6-2, art. 14) of the Convention.
There appeared before the Court:
(a) for the Government
Mr J.J. Rankin, Legal Counsellor, Foreign and
Commonwealth Office, Agent,
The Rt Hon. Sir Nicholas Lyell QC, Attorney-General for
England and Wales and Attorney-General for
Mr P. Coghlin QC, Mr J. Eadie, Counsel,
Mr C. Whomersley, Legal Secretariat to the
Mr O. Paulin, Crown Solicitors Office, Mr R. Heaton,
Mr A. Whysall, Northern Ireland Office, Advisers;
(b) for the Commission
Mr H. Danelius, Delegate;
(c) for the applicant
Mr S. Treacy, Barrister-at-Law, Counsel,
Mr K. Winters, of Madden & Finucane, Solicitor,
Mr A. Campbell, Adviser
The Court heard addresses by Mr Danelius, Mr Treacy and Sir Nicholas Lyell.
AS TO THE FACTS
I. PARTICULAR CIRCUMSTANCES OF THE CASE
A. The applicant’s arrest and detention
"You do not have to say anything unless you wish to do so but I must warn you that if you fail to mention any fact which you rely on in your defence in court, your failure to take this opportunity to mention it may be treated in court as supporting any relevant evidence against you. If you do wish to say anything, what you say may be given in evidence."
In response to the police caution the applicant stated that he had nothing to say.
In reply to this caution the applicant stated: "Nothing to say."
His solicitor was not permitted to be present at any of these interviews.
B. The trial proceedings
"I am also required by law to tell you that if you refuse to come into the witness box to be sworn or if, after having been sworn, you refuse, without good reason, to answer any question, then the court in deciding whether you are guilty or not guilty may take into account against you to the extent that it considers proper your refusal to give evidence or to answer any questions."
"the surrounding facts, including the finding of the tangled tape in the bathroom with the broken cassette case, and the fact that, on entering the house some appreciable time after they arrived outside it and some appreciable time after they first knocked on the door, the police found Murray coming down the stairs at the time when all the other occupants of the house were in the living room, strongly confirm L’s evidence that after the police knocked on the door Murray was upstairs pulling the tape out of the cassette".
"There can be debate as to the extent to which, before the making of the Criminal Evidence (Northern Ireland) Order 1988, a tribunal of fact in this jurisdiction was entitled to draw an adverse inference against an accused because he failed to give evidence on his own behalf, or to account for his presence at a particular place or to mention particular facts when questioned by the police. But I consider that the purpose of Article 4 and of Articles 3 and 6 of the 1988 Order was to make it clear that, whatever was the effect of the previous legal rules, a judge trying a criminal case without a jury, or a jury in a criminal case, was entitled to apply common sense in drawing inferences against the accused in the circumstances specified in Article 4, and in Articles 3 and 6 ...
... I think it is clear that the purpose of Article 4 is to permit the tribunal of fact to draw such inferences against the accused from his failure to give evidence in his own defence as common sense requires.
The inference which it is proper to draw against an accused will vary from case to case depending on the particular circumstances of the case and, of course, the failure of the accused to give evidence on his own behalf does not in itself indicate guilt. Nor does the failure to mention particular facts when questioned or the failure to account for presence in a particular place in itself indicate guilt. But I consider that the intendment of ... Article 4 and Article 6 is to enable the tribunal of fact to exercise ordinary common sense in drawing inferences against an accused ...
Therefore when I come to consider the case against the accused ... I propose to draw such inferences against [him] under Article 4 and under Article 6 as ordinary common sense dictates."
"I accept the submissions of counsel for the accused that as demonstrated by his replies in cross-examination, L. is a man who is fully prepared to lie on oath to advance his own interests and is a man of no moral worth whatever. I, therefore, accept the further submissions of counsel for the accused that, unless his evidence were confirmed by other evidence, a court should not act on his evidence, particularly against accused persons in a criminal trial ...
I now turn to consider the fifth count charging the false imprisonment of L. against the accused [the applicant]. For the reasons which I have already stated, I am satisfied that, as L. described in his evidence, [the applicant] was at the top of the stairs pulling the tape out of the cassette after the police arrived outside the house.
I am also satisfied, for the reasons which I have already stated, that [the applicant] was in the house for longer than the short period described by his co-accused, [D.M.]. I am further satisfied that it is an irresistible inference that while he was in the house [the applicant] was in contact with the men holding L. captive and that he knew that L. was being held a captive. I also draw very strong inferences 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 when cautioned by the police on the evening of 7 January 1990 under Article 6, and I also draw very strong inferences against [the applicant] under Article 4 of the 1988 Order by reason of his refusal to give evidence in his own defence when called upon by the Court to do so.
Therefore I find [the applicant] guilty of aiding and abetting the false imprisonment of L. because, knowing he was being held captive in the house, he was present in the house concurring in L. being falsely imprisoned. As Vaughan J. stated in R. v. Young ... [the applicant] was ‘near enough to give [his] aid and to give [his] countenance and assistance’."
C. The appeal proceedings
"... to suggest, with respect, that [the applicant] went into the house just as the police were arriving outside, immediately went upstairs, attempted to destroy a tape and then walked downstairs, and that this was the sum of his time and activity in the house defies common sense
We are satisfied that it can reasonably be inferred that [the applicant] knew before he came to the house that [L.] was being held captive there. With this knowledge he assisted in the false imprisonment by directing the captive from the bedroom where he had been held and by giving him the directions and admonition [L.] said. Accordingly [the applicant] aided and abetted the crime. We do not accept that [L.] would have been free to leave the house, if the police and army had been taken in by the pretence of the television watching and had departed without making any arrests. We have no doubt that [L.] remained under restraint in the living room when the police were there and if they had left, he would have remained a prisoner to await the fate that his captors would determine.
We consider that there was a formidable case against [the applicant]. He was the only one of the accused whom [L.] observed and identified as playing a positive part in the activities touching his captivity. [L.]’s evidence therefore called for an answer. No answer was forthcoming of any kind to the police or throughout the length of his trial. It was inevitable that the judge would draw ‘very strong inferences’ against him.
The Crown case deeply implicated [the applicant] in the false imprisonment of [L.]."
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Criminal Evidence (Northern Ireland) Order 1988
Article 2 (4) and (7)
"(4) A person shall not be committed for trial, have a case to answer or be convicted of an offence solely on an inference drawn from such a failure or refusal as is mentioned in Article 3 (2), 4 (4), 5 (2) or 6 (2).
(7) Nothing in this Order prejudices any power of a court, in any proceedings, to exclude evidence (whether by preventing questions from being put or otherwise) at its discretion."
"Circumstances in which inferences may be drawn from accused’s failure to mention particular facts when questioned, charged, etc.
(1) Where, in any proceedings against a person for an offence, evidence is given that the accused
(a) at any time before he was charged with the offence, on being questioned by a constable trying to discover whether or by whom the offence had been committed, failed to mention any fact relied on in his defence in those proceedings; or
(b) on being charged with the offence or officially informed that he might be prosecuted for it, failed to mention any such fact, being a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when so questioned, charged or informed, as the case may be, paragraph (2) applies.
(2) Where this paragraph applies
(a) the court, in determining whether to commit the accused for trial or whether there is a case to answer,
(c) the court or jury, in determining whether the accused is guilty of the offence charged, may
(i) draw such inferences from the failure as appear proper;
(ii) on the basis of such inferences treat the failure as, or as capable of amounting to, corroboration of any evidence given against the accused in relation to which the failure is material.
(3) Subject to any directions by the court, evidence tending to establish the failure may be given before or after evidence tending to establish the fact which the accused is alleged to have failed to mention.
"Accused to be called upon to give evidence at trial
(1) At the trial of any person (other than a child) for an offence paragraphs (2) to (7) apply unless
(a) the accused’s guilt is not in issue, or
(b) it appears to the court that the physical or mental condition of the accused makes it undesirable for him to be called upon to give evidence; but paragraph (2) does not apply if, before any evidence is called for the defence, the accused or counsel or a solicitor representing him informs the court that the accused will give evidence.
(2) Before any evidence is called for the defence, the court
(a) shall tell the accused that he will be called upon by the court to give evidence in his own defence, and
(b) shall tell him in ordinary language what the effect of this Article will be if
(i) when so called upon, he refuses to be sworn;
(ii) having been sworn, without good cause he refuses to answer any question; and thereupon the court shall call upon the accused to give evidence.
(3) If the accused
(a) after being called upon by the court to give evidence in pursuance of this Article, or after he or counsel or a solicitor representing him has informed the court that he will give evidence, refuses to be sworn,
(b) having been sworn, without good cause refuses to answer any question, paragraph (4) applies.
(4) The court or jury, in determining whether the accused is guilty of the offence charged, may
(a) draw such inferences from the refusal as appear proper;
(b) on the basis of such inferences, treat the refusal as, or as capable of amounting to, corroboration of any evidence given against the accused in relation to which the refusal is material.
(5) This Article does not render the accused compellable to give evidence on his own behalf, and he shall accordingly not be guilty of contempt of court by reason of a refusal to be sworn.
"Inferences from failure or refusal to account for presence at a particular place
(a) a person arrested by a constable was found by him at a place or about the time the offence for which he was arrested is alleged to have been committed, and
(b) the constable reasonably believes that the presence of the person at that place and at that time may be attributable to his participation in the commission of the offence, and
(c) the constable informs the person that he so believes, and requests him to account for that presence, and
(d) the person fails or refuses to do so, then if, in any proceedings against the person for the offence, evidence of those matters is given, paragraph (2) applies.
(2) Where this paragraph applies
(a) the court, in determining whether to commit the accused for trial or whether there is a case to answer, and
(b) the court or jury, in determining whether the accused is guilty of the offence charged, may
(i) draw such inferences from the failure or refusal as appear proper;
(ii) on the basis of such inferences, treat the failure or refusal as, or as capable of amounting to, corroboration of any evidence given against the accused in relation to which the failure or refusal is material.
(3) Paragraphs (1) and (2) do not apply unless the accused was told in ordinary language by the constable when making the request mentioned in paragraph (1) (c) what the effect of this Article would be if he failed or refused to do so.
(4) This Article does not preclude the drawing of any inference from the failure or refusal of a person to account for his presence at a place which could properly be drawn apart from this Article.
"- at common law there was a divergence of view as to whether, and if so, when and in what manner a judge might comment on the failure of the accused to give evidence;
- the Order intended to change the law and practice and to lay down new rules as to the comments which could be made and the inferences which could be drawn when the accused failed to give evidence at his trial;
- under the Order the accused could not be compelled to give evidence but had to risk the consequences if he did not do so; and
- the inferences which might be drawn from the accused’s failure to give evidence in his own defence included in a proper case the drawing of an inference that the accused was guilty of the offences with which he was charged."
"... This does not mean that the court can conclude simply because the accused does not give evidence that he is guilty. In the first place the prosecutor must establish a prima facie case - a case for him to answer. In the second place in determining whether the accused is guilty the judge or jury can draw only ‘such inference from the refusal as appear proper’. As Lord Diplock said in Haw Tua Tau v. Public Prosecutor at p. 153B:
‘What inferences are proper to be drawn from an accused’s refusal to give evidence depend upon the circumstances of the particular case, and is a question to be decided by applying ordinary common sense.’
There must thus be some basis derived from the circumstances which justify the inference.
If there is no prima facie case shown by the prosecution there is no case to answer. Equally if parts of the prosecution had so little evidential value that they called for no answer, a failure to deal with those specific matters cannot justify an inference of guilt.
On the other hand if aspects of the evidence taken alone or in combination with other facts clearly call for an explanation which the accused ought to be in a position to give, if an explanation exists, then a failure to give any explanation may as a matter of common sense allow the drawing of an inference that there is no explanation and that the accused is guilty ..."
"was intended to denote a case which is strong enough to go to a jury - i.e. 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 essential elements of the offence is proved".
"... In truth it does not denote any single right, but rather refers to a disparate group of immunities, which differ in nature, origin, incidence and importance, and also as to the extent to which they have already been encroached upon by statute."
Amongst the group of immunities which were covered by the expression "right to silence" Lord Mustill identified the following:
"(1) A general immunity, possessed by all persons and bodies, from being compelled on pain of punishment to answer questions posed by other persons or bodies.
(2) A general immunity, possessed by all persons and bodies, from being compelled on pain of punishment to answer questions the answers to which may incriminate them.
(3) A specific immunity, possessed by all persons under suspicion of criminal responsibility whilst being interviewed by police officers or others in similar positions of authority, from being compelled on pain of punishment to answer questions of any kind.
(4) A specific immunity, possessed by accused persons undergoing trial, from being compelled to give evidence, and from being compelled to answer questions put to them in the dock.
(5) A specific immunity, possessed by persons who have been charged with a criminal offence, from having questions material to the offence addressed to them by police officers or persons in a similar position of authority.
(6) A specific immunity ..., possessed by accused persons undergoing trial, from having adverse comment made on any failure (a) to answer questions before the trial, or (b) to give evidence at the trial."
B. Provisions governing access to a solicitor
"15. Right of access to legal advice
(1) A person who is detained under the terrorism provisions and is being held in police custody shall be entitled, if he so requests, to consult a solicitor privately.
(2) A person shall be informed of the right conferred on him by subsection (1) as soon as practicable after he has become a person to whom the subsection applies.
(3) A request made by a person under subsection (1), and the time at which it is made, shall be recorded in writing unless it is made by him while at a court and being charged with an offence.
(4) If a person makes such a request, he must be permitted to consult a solicitor as soon as practicable except to the extent that any delay is permitted by this section.
(8) An officer may only authorise a delay in complying with a request under subsection (1) where he has reasonable grounds for believing that the exercise of the right conferred by that subsection at the time when the detained person desires to exercise it -
(d) will lead to interference with the gathering of information about the commission, preparation or instigation of acts of terrorism; or
(e) by alerting any person, will make it more difficult -
i. to prevent an act of terrorism, or
ii. to secure the apprehension, prosecution or conviction of any person in connection with the commission, preparation or instigation of an act of terrorism ..."
In its judgment of 17 September 1993, the Court of Appeal in Northern Ireland upheld the trial judge’s ruling, finding no unfairness in the circumstances of the case in drawing an adverse inference in respect of the accused’s failure to respond to questions by the police before the receipt of legal advice from his solicitor. The court commented that a breach of section 15 might in certain circumstances allow the trial judge in his discretion to refuse to draw an adverse inference under Article 3 of the 1988 Order.
PROCEEDINGS BEFORE THE COMMISSION
The full text of the Commission’s opinion and of the five separate opinions contained in the report is reproduced as an annex to this judgment.
FINAL SUBMISSIONS TO THE COURT
AS TO THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 (art. 6) OF THE CONVENTION
"1. In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law ...
2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
3. Everyone charged with a criminal offence has the following minimum rights:
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;"
The Court will examine each of these allegations in turn.
A. Article 6 paras. 1 and 2 (art. 6-1, art. 6-2): right to silence
He contended that a first, and most obvious element of the right to silence is the right to remain silent in the face of police questioning and not to have to testify against oneself at trial. In his submission, these have always been essential and fundamental elements of the British criminal justice system. Moreover the Commission in Saunders v. the United Kingdom (report of the Commission of 10 May 1994, paras. 71-73) and the Court in Funke v. France (judgment of 25 February 1993, Series A no. 256-A, p. 22, para. 44) have accepted that they are an inherent part of the right to a fair hearing under Article 6 (art. 6). In his view these are absolute rights which an accused is entitled to enjoy without restriction.
A second, equally essential element of the right to silence was that the exercise of the right by an accused would not be used as evidence against him in his trial. However, the trial judge drew very strong inferences, under Articles 4 and 6 of the Order, from his decision to remain silent under police questioning and during the trial. Indeed, it was clear from the trial judge’s remarks and from the judgment of the Court of Appeal in his case that the inferences were an integral part of his decision to find him guilty.
Accordingly, he was severely and doubly penalised for choosing to remain silent: once for his silence under police interrogation and once for his failure to testify during the trial. To use against him silence under police questioning and his refusal to testify during trial amounted to subverting the presumption of innocence and the onus of proof resulting from that presumption: it is for the prosecution to prove the accused’s guilt without any assistance from the latter being required.
Liberty and Others made similar submissions. Justice stressed that such encroachments on the right to silence increased the risk of miscarriages of justice.
The Northern Ireland Standing Advisory Commission on Human Rights, for its part, considered that the right to silence was not an absolute right, but rather a safeguard which might, in certain circumstances, be removed provided other appropriate safeguards for accused persons were introduced to compensate for the potential risk of unjust convictions.
They maintained, however, that the first question should be answered in the negative. They emphasised that the Order did not detract from the right to remain silent in the face of police questioning and explicitly confirmed the right not to have to testify at trial. They further noted that the Order in no way changed either the burden or the standard of proof: it remained for the prosecution to prove an accused’s guilt beyond reasonable doubt. What the Order did was to confer a discretionary power to draw inferences from the silence of an accused in carefully defined circumstances. They maintained that this did not, of itself, violate the right to silence.
In this respect, they emphasised the safeguards governing the drawing of inferences under the Order which had been highlighted in national judicial decisions (see paragraphs 24 and 29 above). In particular, it had been consistently stressed by the courts that the Order merely allows the trier of fact to draw such inferences as common sense dictates. The question in each case is whether the evidence adduced by the prosecution is sufficiently strong to call for an answer.
With regard to the international standards to which reference had been made by Amnesty International, it was contended that they did not demonstrate any internationally-accepted prohibition on the drawing of common-sense inferences from the silence of an accused whether at trial or pre-trial. In particular, the Draft Statute for an International Criminal Court is far from final and cannot be said to have been adopted by the international community.
As to the question whether, on the facts of the case, the drawing of inferences under Articles 4 and 6 of the Order rendered the criminal proceedings against the applicant unfair, the Government comprehensively analysed the trial court’s assessment of the evidence against the applicant. On the basis of this analysis they submitted that on the evidence adduced against the applicant by the Crown, the Court of Appeal was right to conclude that a formidable case had been made out against him which deeply implicated him in the false imprisonment of Mr L. and that this case "called for an answer". The drawing of inferences therefore had been quite natural and in accordance with common sense.
Wherever the line between these two extremes is to be drawn, it follows from this understanding of "the right to silence" that the question whether the right is absolute must be answered in the negative.
It cannot be said therefore that an accused’s decision to remain silent throughout criminal proceedings should necessarily have no implications when the trial court seeks to evaluate the evidence against him. In particular, as the Government have pointed out, established international standards in this area, while providing for the right to silence and the privilege against self-incrimination, are silent on this point.
Whether the drawing of adverse inferences from an accused’s silence infringes Article 6 (art. 6) is a matter to be determined in the light of all the circumstances of the case, having particular regard to the situations where inferences may be drawn, the weight attached to them by the national courts in their assessment of the evidence and the degree of compulsion inherent in the situation.
In the first place, before inferences can be drawn under Article 4 and 6 of the Order appropriate warnings must have been given to the accused as to the legal effects of maintaining silence. Moreover, as indicated by the judgment of the House of Lords in R. v. Kevin Sean Murray the prosecutor must first establish a prima facie case against the accused, i.e. 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 essential elements of the offence is proved (see paragraph 30 above).
The question in each particular case is whether the evidence adduced by the prosecution is sufficiently strong to require an answer. The national court cannot conclude that the accused is guilty merely because he chooses to remain silent. It is only if the evidence against the accused "calls" for an explanation which the accused ought to be in a position to give that a failure to give any explanation "may as a matter of common sense allow the drawing of an inference that there is no explanation and that the accused is guilty". Conversely if the case presented by the prosecution had so little evidential value that it called for no answer, a failure to provide one could not justify an inference of guilt (ibid.). In sum, it is only common-sense inferences which the judge considers proper, in the light of the evidence against the accused, that can be drawn under the Order.
In addition, the trial judge has a discretion whether, on the facts of the particular case, an inference should be drawn. As indicated by the Court of Appeal in the present case, if a judge accepted that an accused did not understand the warning given or if he had doubts about it, "we are confident that he would not activate Article 6 against him" (see paragraph 31 above). Furthermore in Northern Ireland, where trial judges sit without a jury, the judge must explain the reasons for the decision to draw inferences and the weight attached to them. The exercise of discretion in this regard is subject to review by the appellate courts.
Nor can it be said, against this background, that the drawing of reasonable inferences from the applicant’s behaviour had the effect of shifting the burden of proof from the prosecution to the defence so as to infringe the principle of the presumption of innocence.
Immediately after arrest the applicant was warned in accordance with the provisions of the Order but chose to remain silent. The Court, like the Commission, observes that there is no indication that the applicant failed to understand the significance of the warning given to him by the police prior to seeing his solicitor. Under these circumstances the fact that during the first 48 hours of his detention the applicant had been refused access to a lawyer does not detract from the above conclusion that the drawing of inferences was not unfair or unreasonable (see paragraph 54 above).
Nevertheless, the issue of denial of access to a solicitor, has implications for the rights of the defence which call for a separate examination (see paragraphs 59-69 below).
B. Access to lawyer
He was in fact denied access to any legal advice for 48 hours. During that time Article 3 and Article 6 cautions had been administered without his having had the benefit of prior legal advice. He was interviewed on twelve occasions without a solicitor being present to represent his interests. When he was finally granted access to his solicitor he was advised to remain silent partly because he had maintained silence already during the interview and partly because the solicitor would not be permitted to remain during questioning. The silence which had already occurred prior to seeing his solicitor would have triggered the operation of both Articles 3 and 6 at any subsequent trial, even had he chosen to give an account to the police. Having regard to the very strong inferences which the trial judge drew under Articles 4 and 6 of the Order, the decision to deny him access to a solicitor unfairly prejudiced the rights of the defence and rendered the proceedings against him unfair contrary to Article 6 paras. 1 and 3 (c) (art. 6-1, art. 6-3-c) of the Convention.
In the first place, the applicant did not seek to challenge by way of judicial review the exercise of the statutory power to delay access to a lawyer for up to 48 hours. The power is designed, inter alia, to limit the risk of interference with the vital information-gathering process and the risk that a person involved in an act of terrorism or still at large may be alerted. The denial of access was therefore a bona fide exercise of necessary and carefully designed statutory powers on reasonable grounds.
Secondly, as accepted by the Commission, the inferences drawn under Articles 4 and 6 of the Order were not the only evidence against the applicant. Furthermore the delay of access to a lawyer was for a limited period of 48 hours. Thereafter he had access to lawyers of his own choosing. He was represented both at his trial and on appeal by experienced solicitors and counsel and was in receipt of legal aid.
The Government did not accept that the applicant was irretrievably prejudiced in his defence because of the denial of access. They submitted that if, having consulted his solicitor, he had accounted for his presence at the scene of the crime and put forward an innocent explanation, it would have been extremely unlikely that Article 3 or Article 6 inferences would have been drawn. Moreover there was nothing to suggest, in his attitude or actions, that he would have acted differently had he seen a solicitor from the beginning. He had consistently refused to answer any questions put to him, both before and after he had consulted with his solicitor. In order to make out a case of actual prejudice it must be alleged by the applicant that if he had been able to consult his solicitor earlier he would have acted differently.
In sum, a limited delay of access to a lawyer did not cause any actual prejudice to the applicant’s defence.
The Northern Ireland Standing Advisory Commission on Human Rights considered that it was very much in the public interest that those detained for questioning should have immediate access to legal advice.
Under such conditions the concept of fairness enshrined in Article 6 (art. 6) requires that the accused has the benefit of the assistance of a lawyer already at the initial stages of police interrogation. 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).
II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION IN CONJUNCTION WITH ARTICLE 6 (art. 14+art.6)
III. APPLICATION OF ARTICLE 50 (art. 50) OF THE CONVENTION
"If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party."
A. Pecuniary and non-pecuniary damage
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT
1. Holds by fourteen votes to five that there has been no violation of Article 6 paras. 1 and 2 (art. 6-1, art. 6-2) of the Convention arising out of the drawing of adverse inferences on account of the applicant’s silence;
2. Holds by twelve votes to seven 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 lawyer during the first 48 hours of his police detention;
3. Holds unanimously that it is not necessary to examine the applicant’s complaint of a violation of Article 14 in conjunction with Article 6 (art. 14+art. 6);
4. Holds unanimously that, as regards pecuniary and non-pecuniary damage, the finding of a violation of Article 6 para. 1 in conjunction with paragraph 3 (c) (art. 6-1+art. 6-3-c) constitutes, in itself, sufficient just satisfaction for the purposes of Article 50 (art. 50) of the Convention;
5. Holds unanimously
(a) that the respondent State is to pay, within three months, for costs and expenses £15,000 (fifteen thousand), less 37,968.60 (thirty-seven thousand nine hundred and sixty-eight) French francs and sixty centimes to be converted into pounds sterling at the rate of exchange applicable on the date of delivery of the present judgment;
(b) that simple interest at an annual rate of 8% shall be payable from the expiry of the above-mentioned three months until settlement;
6. Dismisses unanimously the remainder of the claims for just satisfaction.
Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 8 February 1996.
In accordance with Article 51 para. 2 (art. 51-2) of the Convention and Rule 53 para. 2 of Rules of Court A, the following separate opinions are annexed to this judgment:
(a) joint partly dissenting opinion of Mr Ryssdal, Mr Matscher, Mrs Palm, Mr Foighel, Sir John Freeland, Mr Wildhaber and Mr Jungwiert;
(b) partly dissenting opinion of Mr Pettiti, joined by Mr Valticos;
(c) partly dissenting opinion of Mr Walsh, joined by Mr Makarczyk and Mr Lohmus.
JOINT PARTLY DISSENTING OPINION OF JUDGES RYSSDAL, MATSCHER, PALM, FOIGHEL, SIR JOHN FREELAND, 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 discretion 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 Imbrioscia 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.
PARTLY DISSENTING OPINION OF JUDGE PETTITI, JOINED BY JUDGE VALTICOS
I consider that there has been a breach of Article 6 paras. 1 and 2 (art. 6 1, art. 6-2) of the Convention.
With the majority I voted in favour of holding that there had been a breach of Article 6 para. 1 taken together with paragraph 3 (c) (art. 6-1+art. 6-3-c), because the applicant was denied access to a solicitor and the benefit of the effective assistance of a lawyer, at least at the end of the period of police custody.
Nevertheless, on this point I note, in relation to paragraph 66 of the judgment, that the British system, instead of laying down in law the arrangements for access to a solicitor during police custody, leaves the responsibility to the police authorities.
As regards the common-law procedural background, I agree with the comments of Judge Walsh:
"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.
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 ..."
I refer, like Judge Walsh, to the decision of the Northern Ireland Court of Appeal and to the Miranda decision (United States Supreme Court).
The right to silence is a major principle.
Any constraint which has the effect of punishing the exercise of this right, by drawing adverse inferences against the accused, amounts to an infringement of the principle.
The reasoning would be similar in the procedure of continental legal systems. The fact that the trial or appeal court can base its judgment on its innermost conviction is no obstacle to respecting the right to silence, since in its reasoning the court could not derive, from the fact that the accused had remained silent, any information amounting to incriminating evidence. A person charged is free to incur a risk of his own choosing, just as he is free to confess or not to confess, and this is a form of respect for human dignity.
The principle also corresponds to the doctrine on unlawfully or unfairly obtained evidence. Similar findings have been made in comparative law (see Procédures pénales en Europe, ed. M. Delmas-Marty, Thémis, PUF).
The level of certainty to be reached by the judge under the "innermost conviction" system or the "beyond reasonable doubt" system, which is essential in order to arrive at a fair judgment, must not be achieved by a form of coercion to speak that would lead to a confession. Only in this way are the presumption of innocence and the status of the accused fully respected, both of which are central to the democratic conception of a criminal trial.
PARTLY DISSENTING OPINION OF JUDGE WALSH, JOINED BY JUDGES MAKARCZYK AND LOHMUS
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).
 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.
 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.
 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.