CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 18 janvier 1994

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          AS TO THE ADMISSIBILITY OF                         Application No. 18731/91                       by John MURRAY                       against the United Kingdom         The European Commission of Human Rights sitting in private on 18 January 1994, the following members being present:         MM.   C.A. NØRGAARD, President            S. TRECHSEL            F. ERMACORA            E. BUSUTTIL            G. JÖRUNDSSON            A.S. GÖZÜBÜYÜK            J.-C. SOYER            H.G. SCHERMERS            H. DANELIUS       Mrs. G.H. THUNE       MM.   F. MARTINEZ            C.L. ROZAKIS       Mrs. J. LIDDY       MM.   L. LOUCAIDES            J.C. GEUS            N. BRATZA            I. BÉKÉS            E. KONSTANTINOV         Mr.   H.C. KRÜGER, Secretary to the Commission         Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;         Having regard to the application introduced on 16 August 1991 by John Murray against the United Kingdom and registered on 27 August 1991 under file No. 18731/91;         Having regard to:   -      reports provided for in Rule 47 of the Rules of Procedure of the       Commission;   -      the observations submitted by the respondent Government on 25       February 1993 and the observations in reply submitted by the       applicant on 7 June 1993;   -      the observations submitted by the parties at the oral hearing on       18 January 1994;         Having deliberated;         Decides as follows:   THE FACTS         The applicant is an Irish citizen, born in 1950 and presently detained in HM Prison The Maze, Belfast.   He is represented before the Commission by Messrs. Madden and Finucane, Solicitors, Belfast.         The facts as submitted by the parties may be summarised as follows.         The applicant was arrested by police officers at 5.40 pm on 7 January 1990 pursuant to section 14 of the Prevention of Terrorism (Temporary Provisions) Act 1989.   The applicant was cautioned by the police according to the terms of Article 3 of the Criminal Evidence (Northern Ireland) Order 1988 (hereafter referred to as the Order), the relevant part of which provides as follows:         "Circumstances in which inferences may be drawn from accused's       failure to mention particular facts when questioned, charged,       etc.         3.    (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 has 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,         (b) a judge, in deciding whether to grant an application made by       the accused under Article 5 of the Criminal Justice (Serious       Fraud) (Northern Ireland) Order 1988 (application for dismissal       of charge where a case of fraud has been transferred from a       magistrates' court to the Crown Court under Article 3 of that       Order), and         (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."         In response to the police caution the applicant stated, "I have nothing to say."         The applicant was taken to Castlereagh Police Office at about 7.00 pm. He refused to give his personal details to the officer opening the custody record. At 7.05 pm, he was informed of his right to have a friend or relative notified of his detention   but indicated that he did not require that anyone be so notified. At 7.06 pm, the applicant indicated that he wished to consult with a solicitor named Mr. Francis Keenan. At 7.30 pm, the applicant's access to a solicitor was delayed on the authority of a Detective Superintendent pursuant to section 15(1) of the Northern Ireland (Emergency Provisions) Act 1987. The delay was authorised for a period of 48 hours from the time of detention on the basis that the detective Superintendent had reasonable grounds to believe that the exercise of the right of access         "..<would> lead to interference with the gathering of information       about the commission, preparation or instigation of acts of       terrorism; or by alerting any person <would> 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."          At 9.27 pm, a police officer saw the applicant in a cell at Castlereagh Police Office.   He further cautioned the applicant pursuant to Article 6 of the Order, the relevant part of which provides as follows:         "Inferences from failure or refusal to account for presence at       a particular place         6.    (1) Where         (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."         The police officer served the applicant with a written copy of Article 6 of the Order.   The applicant replied, "Nothing to say."         At 10.40 pm, the applicant requested consultation with a different firm of solicitors, Madden and Finucane. The reasons for the delay in access to a solicitor were reviewed but it was concluded that they remained valid reasons.         On 8 and 9 January 1990, the applicant was interviewed twelve times by police detectives at Castlereagh Police Office.   Before each interview the applicant was either cautioned under Article 3 of the Order or reminded that he was under caution.   The applicant maintained silence throughout these interviews.         When he was able to see his solicitor for the first time at 6.33 pm on 9 January 1990, he was advised to remain silent, which he did during the following two interviews. His solicitor was not permitted to be present during these interviews.         The applicant was tried by a single judge, the Lord Chief Justice of Northern Ireland, sitting without a jury, on 8 May 1991, for several offences including that of conspiracy to murder, aiding and abetting, with seven other people, the false imprisonment of a certain Mr. L. and of belonging to a proscribed organisation ie the Provisional Irish Republican Army.         The Crown case was that for some time prior to January 1990 Mr. L. had been a member of the Provisional I.R.A. and had also been giving information about the activities of the Provisional I.R.A. to the Royal Ulster Constabulary.   The Provisional I.R.A. discovered that Mr. L. was an informer and tricked him into going to a house, 124 Carrigart Avenue, in the Lenadoon district of Belfast, on the evening of Friday 5 January 1990.   Once he was in that house, he was falsely imprisoned on the orders of the Provisional I.R.A. and was kept captive in one of the rear bedrooms of that house until the arrival of the police and the army at the house on the afternoon of Sunday 7 January 1990.   In addition to the false imprisonment of Mr. L., the Crown also made the case that there was a conspiracy to murder him as punishment for being a police informer.   The applicant was one of the people in the house when the police entered on 7 January and rescued Mr. L.. At no time did the applicant give any explanation for his presence in that house.         At the close of the prosecution case, the judge, acting in accordance with Article 4 of the Order, called upon each of the eight accused to give evidence in their own defence. The relevant part of Article 4 of the Order provides as follows:         "Accused to be called upon to give evidence at trial         4.    (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, or         (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."         Acting on the advice of his solicitor and counsel, the applicant chose not to give any evidence.   No witnesses were called on the applicant's behalf. Counsel on his behalf, with some support from the evidence of a co-accused, submitted, inter alia, that the applicant's presence in the house just before the police arrived was recent and innocent.         In finding the applicant guilty of the sole offence of aiding and abetting the false imprisonment of L., the judge held as follows:         "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 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 124 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       8C and P 644 at 653, 173 ER 655 at 659 cited with approval by       Cave J. in R. v. Coney (1882) 8 QBD 534 at 541, <the applicant>       was 'near enough to give <his> aid and to give <his> countenance       and assistance.'"         The applicant was sentenced to eight years' imprisonment.         The applicant appealed against conviction and sentence to the Court of Appeal in Northern Ireland on the ground, inter alia, that the judge had erred in holding that the words of the Article 6 caution conformed with the requirement that an accused be told in ordinary language what the effect would be if he failed or refused to account for his presence at the scene of a crime.         In its judgment of 7 July 1992, the Court dismissed the applicant's appeal. It held, inter alia:         "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."   COMPLAINTS         The applicant complains that he is the victim of a violation of Article 6 paras. 1 and 2 and Article 14 of the Convention.   PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 16 August 1991 and registered on 27 August 1991.         On 10 September 1992, the Commission decided to communicate the application to the Government and to ask for written observations on the admissibility and merits of the application.         The Government's observations were submitted on 25 February 1993 after two extensions in the time-limit fixed for this purpose and the applicant's observations in reply were   submitted on 7 June 1993   after one extension in the time-limit.         On 8 April 1993,   the Commission decided to grant legal aid to the applicant.         On 30 August 1993, the Commission decided to invite the parties to an oral hearing.         At the hearing, which took place on 18 January 1994, the parties were represented as follows:   For the Government   Mr. H. Llewellyn                  Agent Mr. P. Coghlin Q.C.               Counsel Mr. J. Eadie                      Counsel   Three advisers were also present.   For the applicant   Mr. S. Treacy                     Counsel Mr. K. Winters                    Solicitor, Madden and Finucane Ms. K. Quinlivan                  Adviser Mr. L. McStay                     Adviser   THE LAW         The applicant complains that he was deprived of the right of silence in the criminal proceedings brought against him as a result of the operation of the provisions of the Criminal Evidence (Northern Ireland) Order 1988 which permitted a judge, sitting without a jury, to draw inferences from his failure to answer police questions and from his failure to give evidence in his own defence during the trial. He further complains that he was deprived of access to his solicitor in the first 48 hours of his detention and that his solicitor was not permitted to be present during interviews which took place after that initial period. The latter was in conformity with the practice in Northern Ireland, which differs from that in England and Wales. The applicant invokes Article 6 paras. 1 and 2 and Article 14 (Art. 6-1, 6-2, 14) of the Convention, which provide as relevant:         Article 6 para. 1 (Art. 6-1):         "In the determination of his civil rights and obligations or 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..."         Article 6 para. 2 (Art. 6-2):         "Everyone charged with a criminal offence shall be presumed       innocent until proved guilty according to law."         Article 14 (Art. 14):         "The enjoyment of the rights and freedoms set forth in this       Convention shall be secured without discrimination on any ground       such as sex, race, colour, language, religion, political or other       opinion, national or social origin, association with a national       minority, property, birth or other status."         The Government submit that the provisions of the 1988 Order did not operate to deprive the applicant either of a fair hearing contrary to Article 6 para. 1 (Art. 6-1) or of the presumption of innocence contrary Article 6 para. 2 (Art. 6-2). They refer to the safeguards provided in the Order: no inference may be drawn unless the suspect/accused has been warned in advance of the possible effect; before any inference is drawn, the prosecution must have established a prima facie case against the accused; the judge has a discretion whether to draw an inference and is limited to drawing only such inferences as may be proper. The Order merely allows the trier of fact to draw such inferences as common sense dictates. In the present case, there was a formidable case against the applicant which called for evidence from the applicant if there was an innocent explanation for his conduct. The burden of proof remained throughout on the prosecution.         As regards the denial of access by the applicant to his solicitor for 48 hours, the Government contend that this delay did not disadvantage the applicant in the conduct of his defence and therefore discloses no violation of Article 6 (Art. 6) of the Convention. Since the police have similar powers to delay access in England and Wales, they submit that there is no discrimination in this respect within the meaning of Article 14 (Art. 14) of the Convention.         As regards the refusal of permission to the applicant's solicitor to be present during his interviews with the police, the Government state that this too did not affect the conduct of the applicant's defence and disclosed no violation of Article 6 (Art. 6) of the Convention. The difference in this respect between the position in England and Wales and that in Northern Ireland, based as it was solely on the geographical location at which a person was arrested and detained, did not amount to discriminatory treatment within the meaning of Article 14 (Art. 14) of the Convention.         The applicant submits that the 1988 Order, which permits inferences to be drawn from the failure of an accused to answer police questions or to give evidence, and the reliance placed upon it by the trial judge in the instant case, violate Article 6 para. 1 (Art. 6-1) of the Convention.   The very strong inferences drawn by the trial judge in the applicant's case played a crucial role in his conviction. It is submitted that it is a generally recognised principle of international law that an accused person cannot be required to incriminate himself, that Article 6 (Art. 6) of the Convention enshrines this principle, and that the drawing of an incriminating inference from an accused's failure to give evidence infringes his right to a fair trial.         The applicant also submits that the drawing of an incriminating inference from the failure of an accused person to give evidence has the effect of placing the burden of proof on an accused and is manifestly inconsistent with the presumption of innocence guaranteed in Article 6 para. 2 (Art. 6-2) of the Convention. Further, the denial of access by the applicant to his solicitor for 48 hours and the discriminatory practice of not permitting solicitors to be present at any stage while a person arrested under prevention of terrorism provisions is being interviewed, violates Article 6 (Art. 6) either alone or read in conjunction with Article 14 (Art. 6+14) of the Convention.   The discriminatory element derives, inter alia, from the fact that in England and Wales, contrary to the practice in Northern Ireland, all detained persons, including those detained under prevention of terrorism legislation, are permitted to have their legal representative present during the police interviews.         The Commission has taken cognizance of the submissions of the parties. It considers that the applicant's complaints raise serious issues of fact and law under the Convention, the determination of which should depend on an examination of the merits. It follows that the application cannot be dismissed as manifestly ill-founded. No other ground for declaring it inadmissible has been established.         For these reasons, the Commission by a majority         DECLARES THE APPLICATION ADMISSIBLE, without prejudging the       merits.   Secretary to the Commission             President of the Commission         (H.C. KRUGER)                          (C.A. NØRGAARD)