CEDH · CASELAW;REPORTS;ENG — 27 juin 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 }                        EUROPEAN COMMISSION OF HUMAN RIGHTS                          Application No. 18731/91                                 John MURRAY                                   against                             the United Kingdom                           REPORT OF THE COMMISSION                          (adopted on 27 June 1994)                              TABLE OF CONTENTS                                                                    page   I.     INTRODUCTION       (paras. 1-18) . . . . . . . . . . . . . . . . . . . . . . . . 1         A.   The application           (paras. 2-4). . . . . . . . . . . . . . . . . . . . . . . 1         B.   The proceedings           (paras. 5-13) . . . . . . . . . . . . . . . . . . . . . . 1         C.   The present Report           (paras. 14-18). . . . . . . . . . . . . . . . . . . . . . 2   II.    ESTABLISHMENT OF THE FACTS       (paras. 19-43). . . . . . . . . . . . . . . . . . . . . . . . 3         A.   Particular circumstances of the case           (paras. 19-35). . . . . . . . . . . . . . . . . . . . . . 3         B.   Relevant domestic law and practice           (paras. 36-43). . . . . . . . . . . . . . . . . . . . . . 6   III.   OPINION OF THE COMMISSION       (paras. 44-82). . . . . . . . . . . . . . . . . . . . . . . .11         A.   Complaints declared admissible           (para. 44). . . . . . . . . . . . . . . . . . . . . . . .11         B.   Points at issue           (para. 45). . . . . . . . . . . . . . . . . . . . . . . .11         C.   Article 6 of the Convention           (paras. 46-74). . . . . . . . . . . . . . . . . . . . . .11              1. The right to silence            (paras. 47-65) . . . . . . . . . . . . . . . . . . . . .12                 Conclusion               (para. 66). . . . . . . . . . . . . . . . . . . . . .15              2. Access to a solicitor            (paras. 67-73) . . . . . . . . . . . . . . . . . . . . .16                 Conclusion               (para. 74). . . . . . . . . . . . . . . . . . . . . .17         D.   Article 14 of the Convention           (paras. 75-79). . . . . . . . . . . . . . . . . . . . . .17                 Conclusion               (para. 79). . . . . . . . . . . . . . . . . . . . . .18         Recapitulation           (paras. 80-82). . . . . . . . . . . . . . . . . . . . . .18   CONCURRING OPINION OF MR. H. G. SCHERMERS . . . . . . . . . . . . .19   PARTLY CONCURRING, PARTLY DISSENTING OPINION OF MR. E. BUSUTTIL . .20   PARTLY CONCURRING, PARTLY DISSENTING OPINION OF MR. N. BRATZA . . .23   PARTLY DISSENTING OPINION OF MR. F. MARTINEZ. . . . . . . . . . . .26   DISSENTING OPINION OF MR. L. LOUCAIDES. . . . . . . . . . . . . . .27   APPENDIX I        HISTORY OF THE PROCEEDINGS . . . . . . . . . . . .28   APPENDIX II       DECISION ON ADMISSIBILITY. .   . . . . . . . . . . 29   I.     INTRODUCTION   1.     The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.   A.     The application   2.     The applicant is John Murray, a British citizen born in 1950 and currently serving a sentence of imprisonment in HM Prison Maze, Northern Ireland. He is represented by Messrs. Madden and Finucane, solicitors practising in Belfast.   3.     The application is directed against the United Kingdom.   The respondent Government are represented by Mr. Iain Christie as Agent, from the Foreign and Commonwealth Office.   4.     The case concerns the complaints of the applicant that he was deprived of the right to silence in the criminal proceedings brought against him, 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 applicant alleges discriminatory treatment as regards the latter aspect of case in that the practice concerning access to solicitors differs between Northern Ireland and England and Wales. The application raises issues under Article 6 paras. 1 and 2 and Article 14 of the Convention.   B.     The proceedings   5.     The application was introduced on 16 August 1991 and registered on 27 August 1991.   6.     On 10 September 1992, the Commission decided to communicate the application to the respondent Government for their written observations on the admissibility and merits of the application.   7.     The Government submitted their written observations on 25 February 1993.   The applicant submitted his written observations in reply on 7 June 1993.   8.     On 30 August 1993, the Commission decided to invite the parties to an oral hearing on the admissibility and merits.   9.     At the hearing which was held on 18 January 1994, the Government were represented by   Mr. H. Llewellyn, as Agent, Mr. P. Coghlin Q.C., Counsel, Mr. J. Eadie, Counsel, and three advisers. The applicant was represented by Mr. S. Treacy, Counsel, Mr. K. Winters, Solicitor, and Ms. K. Quinlivan and Mr. L. McStay as advisers.   10.    On 18 January 1994, the Commission declared the application admissible.   11.    The parties were then invited to submit any additional observations on the merits of the application.   12.    On 24 February 1994, the applicant submitted further observations.   13.    After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, placed itself at the disposal of the parties with a view to securing a friendly settlement of the case.   In the light of the parties' reactions, the Commission now finds that there is no basis on which a friendly settlement can be effected.   C.     The present Report   14.    The present Report has been drawn up by the Commission   in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:              MM.    C.A. NØRGAARD, President            S. TRECHSEL            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   15.    The text of the Report was adopted by the Commission on 27 June 1994 and is now transmitted to the Committee of Ministers in accordance with Article 31 para. 2 of the Convention.   16.    The purpose of the Report, pursuant to Article 31 para. 1 of the Convention, is         1)   to establish the facts, and         2)   to state an opinion as to whether the facts found disclose           a breach by the State concerned of its obligations under           the Convention.   17.    A schedule setting out the history of the proceedings before the Commission is attached hereto as Appendix I and the Commission's decision on the admissibility of the application as Appendix II.   18.    The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.   II.    ESTABLISHMENT OF THE FACTS   A.     Particular circumstances of the case   19.    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), which provides for circumstances in which inferences may be drawn from an accused's failure to mention particular facts when questioned or charged (see para. 36 below).   20.    In response to the police caution the applicant stated, "I have nothing to say."   21.    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, inter alia, interfere with the gathering of information about the commission of acts of terrorism or make it more difficult to prevent an act of terrorism (see paras. 41-42 below).   22.     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 (see para. 37 below) which provides for inferences to be drawn from failure or refusal to account for presence at a particular place.   23.    The police officer served the applicant with a written copy of Article 6 of the Order.   The applicant replied, "Nothing to say."   24.    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.   25.    During 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.   26.    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.   27.    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 (I.R.A.).   28.    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.   29.    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. According to L., he was forced under threat of being killed to make a confession to his captors that he was an informer and required to read out a written confession which was taped. The applicant was one of the people in the house when the police entered on 7 January and rescued Mr. L. The latter stated that on the arrival of the police he saw the applicant pulling tape out of a cassette. The police gave evidence that on their arrival the applicant was at the top of the stairs while the other occupants of the house were in a downstairs room and that, on a search of the house, tangled tape was discovered in an upstairs bathroom. At no time did the applicant give any explanation for his presence in that house.   30.    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. Article 4 provides that where an accused does not then give evidence, the court or jury, in determining whether the accused is guilty of the offence charged, may draw such inferences from the refusal as appear proper or   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 (see para. 38 below).   31.    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.   32.    In finding the applicant guilty of the sole offence of aiding and abetting the false imprisonment of L., the judge held as follows:         "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 <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.'"   33.    The applicant was sentenced to eight years' imprisonment.   34.    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.   35.    In its judgment of 7 July 1992, the Court dismissed the applicant's appeal. It held, inter alia:         "...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 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."   B.     Relevant domestic law and practice         Provisions governing inferences which may be drawn from an       accused's silence   36.    Article 3 of the Criminal Evidence (Northern Ireland) Order 1988 (hereafter referred to as the Order) provides as relevant:         "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."   37.    Article 6 of the Order provides as relevant:         "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."   38.    Article 4 of the Order provides as relevant:         "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."   39.    In the case of R. v. Kevin Sean Murray, the Court of Appeal in Northern Ireland were called on to consider the effect of Article 4. On 25 October 1991, the Court of Appeal held inter alia :         "The right of the court under Article 4 to draw inferences as       appear proper arises once the Crown has established a prima facie       case and does not require that the Crown case constituted by the       evidence should be `on the brink' of proving guilt or should       create a situation which at common law would be regarded as       `confession and avoidance' situation. But whether the court will       draw inferences will depend upon the circumstances of the       particular case and, if inferences are drawn, the strength of       those inferences will also depend upon the particular       circumstances of the case.         There may be cases where, despite the refusal of the accused to       give evidence when called upon by the court to do so pursuant to       Article 4, the court may think it inappropriate to draw any       inferences against him. Moreover, before convicting the court,       having regard to the evidence adduced by the Crown and to the       inferences (if any) which it draws under Article 4, must always       be satisfied that the Crown has discharged the burden of proving       that the accused is guilty beyond a reasonable doubt. ...         The refusal of the accused to give evidence on his own behalf       does not in itself indicate guilt. Under Article 4 it would be       improper for the court to draw the bare inference that because       the accused refused to give evidence in his onw defence he was       therefore guilty. But where commonsense permits it, it is proper       in an appropriate case for the court to draw the inference from       the refusal of the accused to give evidence that there is no       reasonable possibility of an innocent explanation to rebut the       prima facie case established by the evidence adduced by the       Crown, and for the drawing of this inference to lead on to the       conclusion, after all the evidence in the case has been       considered, that the accused is guilty."   40.    Lord Slynn in the leading judgment of the House of Lords given on 29 October 1992 stated:         "The accused cannot be compelled to give evidence but he must       risk the consequences if he does not do so. Those consequences       are not simply as the appellant contends, that specific       inferences may be drawn from specific facts. They include in a       proper case the drawing of an inference that the accused is       guilty of the events with which he is 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       inferences from the refusal as appear proper'.   As Lord Diplock       said in Haw Tua Tau v. the 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 commonsense.'         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..."         Provisions governing access to a solicitor   41.    Section 15 of the Northern Ireland (Emergency Provisions) Act 1987 provides as relevant:         "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...         (4) If a person makes such a request, he must be permitted to       consult a solicitor as soon as is 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."   42.    The delay must be authorised by a police officer of at least the rank of superintendent (sub-section (5)(a) and the detained person must be told the reason for the delay (subsection (7)). The maximum delay is 48 hours.   43.    The courts in Northern Ireland have taken the view that the provisions of the 1988 Order should not be read subject to section 15 of the 1987 Act above. In the case of R. v. Dermott Quinn, the trial judge in his judgment of 23 December 1991 rejected a submission to the effect that an adverse inference under Article 3 of the 1988 Order should not be drawn where the accused had asked for access to his solicitor but been interviewed by the police before his solicitor arrived to advise him. He noted that the 1988 Order had come into force after section 15 of the 1987 Act and considered that Parliament had not intended that an inference dictated by common sense which was permitted by Article 3 of the 1988 Order should not be drawn because of the right to access to legal advice given by section 15. 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. In rejecting the applicant's application for leave to appeal to the House of Lords, it 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.   III.   OPINION OF THE COMMISSION   A.     Complaints declared admissible   44.    The Commission has declared admissible the applicant's complaints that he was deprived of the right to silence in the criminal proceedings brought against him; that he was denied access to his solicitor for 48 hours after arrest and subsequent to that time his solicitor was not allowed to attend the applicant's interviews with the police; and that the practice in Northern Ireland of excluding solicitors from interviews, which differs from that followed in England and Wales, is discriminatory.   B.     Points at issue   45.    The issues to be determined are:         - whether there has been a violation of Article 6 para. 1       (Art. 6-1) and/or para. 2 (Art. 6-2) as regards the applicant's       right to silence;         - whether there has been a violation of Article 6 para. 1 in       conjunction with Article 6 para. 3 (c) (Art. 6-1+6-3-c) of the       Convention as regards the applicant's lack of access to a       solicitor;         - whether there has been discrimination contrary to Article 14       in conjunction with Article 6 (Art. 14+6) in the Convention.   C.     Article 6 (Art. 6) of the Convention   46.    The provisions of Article 6 (Art. 6) relevant to the examination of this application provide as relevant:         Article 6 para. 1 (Art. 6-1) of the Convention:         "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..."         Article 6 para. 2 (Art. 6-2):         "Everyone charged with a criminal offence shall be presumed       innocent until proved guilty according to law."         Article 6 para. 3 (c) (Art. 6-3-c):         "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;"         1.    The right to silence   47.    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.   48.    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.   49.    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 to 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, in the Government's submission, 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. Furthermore, the burden of proof remained throughout on the prosecution.   50.    The Commission observes that the right to silence is not expressly guaranteed in the provisions of Article 6 (Art. 6) of the Convention.   51.    In the case of Funke (Eur. Court H.R., Funke judgment of 25 February 1993, Series A no. 256-A, p. 22, para. 44), the Court held, in the context of a prosecution of an applicant for refusing to disclose incriminating documents at the request of the customs authorities, that the "special features of customs law ... cannot justify such an infringement of the right of anyone 'charged with a criminal offence', within the meaning of this expression in Article 6 (Art. 6), to remain silent and not to contribute to incriminating himself".   52.    The Court appears in the above passage to find that the right to silence and the privilege against self-incrimination are an inherent part of the protection given to an accused under Article 6 para. 1 (Art. 6-1).   53.    In the case of Saunders (No. 19187/91, Comm. Rep. 10.5.94), the Commission found a violation of Article 6 para. 1 (Art. 6-1) where the applicant had been compelled under threat of penalty to make incriminating statements to Department of Trade and Industry Inspectors and that information given to them had been used against him in a subsequent criminal prosecution. It considered (at para. 72):         "In the Commission's opinion, the privilege against self-       incrimination is an important element in safeguarding an accused       from oppression and coercion during criminal proceedings. The       very basis of a fair trial presupposes that the accused is       afforded the opportunity of defending himself against the charges       brought against him. The position of the defence is undermined       if the accused is under compulsion, or has been compelled,   to     &#x