CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 21 octobre 1996

.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. 21656/93                       by James Martin HAMILL                       against the United Kingdom          The European Commission of Human Rights sitting in private on 21 October 1996, the following members being present:              Mr.    S. TRECHSEL, President            Mrs.   G.H. THUNE            Mrs.   J. LIDDY            MM.    E. BUSUTTIL                  G. JÖRUNDSSON                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  J.-C. SOYER                  H. DANELIUS                  F. MARTINEZ                  L. LOUCAIDES                  M.P. PELLONPÄÄ                  M.A. NOWICKI                  I. CABRAL BARRETO                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  J. MUCHA                  D. SVÁBY                  G. RESS                  A. PERENIC                  C. BÎRSAN                  P. LORENZEN                  K. HERNDL                  E. BIELIUNAS                  E.A. ALKEMA                  M. VILA AMIGÓ                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 15 April 1993 by James Martin HAMILL against the United Kingdom, and registered on 20 April 1993 under file No. 21656/93;      Having regard to :   -     the reports provided for in Rule 47 of the Rules of Procedure of      the Commission;   -     the observations submitted by the respondent Government on      24 February 1994 and the observations in reply submitted by the      applicant on 27 June 1994;   -     the further observations submitted by the   Respondent Government      on 8 May 1996.        Having deliberated;        Decides as follows:THE FACTS        The applicant is a United Kingdom citizen born in 1950 and presently detained in HM Prison Maghaberry, Northern Ireland.   He is represented by Messrs. McCann & McCann, a firm of solicitors practising in Belfast.   a.    The particular circumstances of the case        The facts as submitted by the parties, and which may be deduced from documents lodged with the application, may be summarised as follows.        On 6 March 1991, the applicant was found guilty of possession of a firearm in suspicious circumstances and of receiving stolen goods (the firearm in question).   He was also acquitted of a further charge of possession of a firearm with intent to endanger life or cause serious injury.   The court consisted of a single judge sitting without a jury.        The firearm in question, a sawn-off shotgun, had been recovered by police from the garden of a private house in Belfast occupied by Mrs. F.   The prosecution alleged it had been abandoned there by the applicant in order to avoid its detection by police officers controlling a road block on a road along which the applicant was travelling.   The prosecution case consisted of circumstantial evidence purporting to fix the approximate time at which the firearm was abandoned in the garden and placing the applicant in the vicinity at such time.   In addition to this the prosecution invited the trial judge to draw particular inferences from the applicant having turned off the road where the road block was located and from his statements to the police both before and after his arrest, which the prosecution claimed contained implausible explanations for his conduct.   The evidence as to when the firearm had been left in the back garden of the house (No. 10) came from Mrs. F., who lived at No. 10.   Mrs. F. refused to give oral evidence to the court, claiming to be afraid to do so. Despite the objections of counsel for the defence, the judge exercised his discretion under Article 3 of the Criminal Justice (Evidence etc) (Northern Ireland) Order 1988 ("the Criminal Justice Order") to admit, as evidence of the facts contained therein, her out of court statement made to the police.   Mrs. F. could not therefore be cross-examined by counsel for the defence.        At the conclusion of the prosecution case, the trial judge rejected a submission by counsel for the defence that there was no case to answer and, acting in accordance with Article 4 of the Criminal Evidence (Northern Ireland) Order 1988 ("the 1988 Criminal Evidence Order"), called upon the applicant to give evidence in his own defence.        Although a number of witnesses were called on behalf of the applicant, on the advice of his counsel, the applicant himself declined to give any evidence.   In finding the applicant guilty of the two offences referred to above the trial judge stated, inter alia:        "In this case the applicant gave an explanation of his behaviour      and he said that he had given it ad nauseam.   If an accused man      has given an explanation to the police that is credible or      reasonably credible and that is partly accepted by the police      inferences should not be drawn against him where he refused to      give evidence in court.   I could not accept this proposition.      It seemed to me and I think it is borne out by Lord Justice      Kelly's two judgments that there is no restriction to be placed      on the inferences which may be drawn by a Judge save that they      are proper inferences.   A Judge must have regard to all evidence      including anything said by an accused while he was being      questioned.   There is a great difference between answering      questions in a police station and giving sworn evidence and being      subjected to cross-examination on the other."        "The Crown case relies on what Mrs. F says, and she had not been      cross-examined.   He [the applicant] referred to what he called      her lie, which casts a doubt on her reliability as a witness.      One does not know the nature of the noise that she says she      heard. Perhaps the noise came from the yards of 8 or 12 or [of]      the alleys.   There was nothing to show that the gun had been in      the yard for some time before [the applicant] rang the bell.   The      gun position was more consistent with it having been placed than      thrown.   There were no marks on the newspaper covering. The      forensic evidence shows no connection between [the applicant] and      the gun or its covering.   The fibres on the gun indicated contact      with someone or something different to both [the applicant] and      his car.   [The applicant] was not wearing gloves and an      examination of the wet newspaper if it had been done would have      shown finger prints other than his.   [The applicant's] hands were      bagged and he should have been swabbed.   This was not done.   If      it was it would have shown in his case an absence of newsprint.      He also referred to the evidence of Dr. S in regard to the gun      and newspaper covering and Mr. W in regard to his opinion as to      access to the yard.        I did not give my reasons for refusing Mr. Cinnamond's      application for a direction at the close of the Crown case but      I think they will appear now.   I am satisfied, having heard the      police witnesses give evidence, that <the applicant> in turning      down Eastern Crescent was trying to avoid the police check.   This      was subject to any evidence which might have been put before the      court by the Defence.   The case against him in this respect has      been confirmed by his not giving evidence, the course which if      he had done would have given him an opportunity to explain why      he drove as he did.   The evidence of the police therefore remains      unchallenged.   The position of the car outside 14 and the car      door open and engine running suggests a man in a hurry.   Yet, as      <the applicant> says, he was not in a hurry and he has not sought      to elucidate this by giving evidence.        <the applicant's> lie to the police that he did not see the      police road check makes it difficult to accept what is his most      improbable explanation for leaving his car door open, namely,      that he always did that.   Now that he has refused to give      evidence I do not accept it at all.   I believe he left his car      seeking to dispose of the shotgun which he did by throwing it      over the wall at the end of the alleyway leading to <Mrs. F.'s>      yard............              .......I have dealt with the case on the basis that there            was no forensic evidence connecting the accused and his car            with the wrapping or the gun.              Dr. S. also said that he would expect some dents or bruises      on the gun if it was thrown or some abrasive tearing of the      newspaper covering.   I think common sense suggests this is true      but it is not necessarily so and the evidence is again very      speculative.              I have given what weight I can to it but I have come to the      conclusion that the gun was thrown over the yard wall by the      accused and I am satisfied beyond reasonable doubt that he is      guilty of being in possession of the shot gun."        The applicant was sentenced to nine years imprisonment.   The applicant appealed against his conviction.   Although initially a ground of appeal, the applicant did not maintain his challenge to the trial judge's decision relating to the admission of the out of court statement of Mrs. F..   Instead the appeal concentrated on the trial judge's weighing of the evidence and his drawing of inferences   adverse to the applicant from the applicant's failure to give evidence himself. The appeal was dismissed on 30 July 1992.   Higgins J., giving the judgment of the court, stated, inter alia:        "In this case the Crown established a prima facie case against      the appellant and from the evidence the trial judge was entitled      to infer that the appellant had the shotgun with him in the      Sierra and that he threw it into the yard of 10 Easton Crescent      to avoid its detection by the police.   The appellant had given      explanations to the police about the reason for driving into      Easton Crescent and for the manner in which he parked the Sierra.      But he refused to go into the witness box, when called on by the      trial judge, to face cross-examination about his conduct on that      occasion and on his explanations.   Mr. Cinnamond submitted that      the appellant had done enough by way of explanation and should      not be penalised for not giving evidence.   But the giving of an      explanation to the police, which may be quite specious and which      will not have been subjected to testing by cross-examination,      clearly does not absolve an accused person from the consequences      of Article 4 after he has been expressly called upon by the court      to give evidence in his own defence and has been warned of the      consequences if he does not do so.   In any event the explanations      given by the appellant were self serving, unconvincing and      unsatisfactory.   It is only common sense to infer in these      circumstances from the appellant's failure to give evidence in      his own defence that there was no reasonable possibility of an      innocent explanation which he could put forward and maintain      under cross-examination to rebut the inferences, which could be      drawn from the evidence given in Court, and that the inferences      which the Crown submitted should be drawn from the evidence,      namely that he had the shotgun with him in the Sierra and that      he threw it into the yard of 10 Easton Crescent to avoid its      detection by the police, were correct.              We are satisfied that the trial judge did not err in            drawing those inferences and in coming to the conclusion            that the appellant was guilty of the offences in Counts 2            and 3 of the indictment."        The applicant's application for leave to appeal to the House of Lords was refused by the Court of Appeal on 19 February 1993.   b.    Relevant domestic law and practice        Article 4 of the Criminal Evidence (Northern Ireland) Order 1988 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 made 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.      (5) This Article does not render the accused compellable to give      evidence on his behalf, and he shall accordingly not be guilty      of contempt of court by reason of a refusal to be sworn.        (6) For the purposes of this Article a person who, having been      sworn, refuses to answer any question shall be taken to do so      without good cause unless -        (a) he is entitled to refuse to answer the question by virtue of      any statutory provision, or on the ground of privilege; or        (b) the court in the exercise of its general discretion excuses      from answering it."   COMPLAINTS        The applicant complains that the inferences drawn against him pursuant to the 1988 Criminal Evidence Order, deprived him of his right to a fair trial and his right to be presumed innocent as guaranteed under Article 6 paras. 1 and 2 of the Convention.   He contends that the provisions of the 1988 Criminal Evidence Order operate in such a way as to militate against the possibility of a fair trial of criminal charges.   He also invokes Article 6 para. 3 of the Convention.        The applicant further complains that the admission of Mrs. F's statement by way of a written statement of evidence deprived him of his right under Article 6 para. 3(d) of the Convention to cross-examine witnesses against him.   PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 15 April 1993 and registered on 20 April 1993.        On   30 August 1993, the Commission decided to communicate the application to the Government and to ask for written observations on the admissibility and merits of the case.        By letter dated 8 September 1993, the applicant requested to amend his application to include a complaint concerning the admission in evidence of the statement of Mrs. F..        The Government's observations were submitted on 24 February 1994, after two extensions in the time-limit fixed for this purpose.   The applicant's observations in reply were submitted on 27 June 1994, also after two extensions in the time-limit.        On 15 April 1994, the Commission decided to grant the applicant legal aid.        On 10 October 1994 the Commission decided to adjourn the application pending the outcome of the proceedings before the European Court of Human Rights in the case of John Murray v. United Kingdom.        Following the Commission's decision of 2 March 1996 to that effect, the parties were invited to submit any additional observations which they might consider appropriate on the relevance of the judgment of the European Court of Human Rights of 8 February 1996 in the case of John Murray (to be published in 1996 Reports) to the facts of the application.        The Government submitted its supplementary observations on 8 May 1996, after one extension in the time-limit set for his purposes. The applicant did not submit supplementary observations.   THE LAW        The applicant complains that the adverse inferences drawn under Article 4 of the Criminal Evidence (Northern Ireland) Order 1988 ("the 1988 Criminal Evidence Order") from his refusal to give evidence in Court in effect meant that he was compelled to give evidence, was not presumed innocent and was forced to incriminate himself.   He complains that in the circumstances his trial was unfair and that he was denied the guarantees of Article 6 (Art. 6) of the Convention.   That provision, so far as relevant, provides as follows.        "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. ....        2.     Everyone charged with a criminal offence shall be      presumed innocent until proved guilty according to law."        The Government submit, inter alia, that the provisions of the 1988 Criminal Evidence Order did not operate to deprive the applicant either of a fair hearing, contrary to Article 6 para. 1 (Art. 6-1) of the Convention, or of the presumption of innocence contrary to Article 6 para. 2 (Art. 6-2) of the Convention. They refer to the safeguards provided in Article 4 of the 1988 Criminal Evidence Order: no inference may be drawn unless the suspect/accused has been warned in advance of the possible effects of remaining silent; before any inference is drawn the prosecution must have established a prima facie case against the accused; the trier of fact has a discretion whether to draw an inference and may only draw such inferences as appear proper. They claim that the 1988 Criminal Evidence Order merely allows the trier of fact to draw such inferences as common sense dictates and the prosecution is still required to prove the case against the applicant to the usual standard, beyond reasonable doubt.        The Government further submit that the applicant had a right to remain silent since Article 4(5) of the 1988 Criminal Evidence Order expressly provides that an accused cannot be compelled to give evidence and is not subject to any fine, imprisonment or any other punishment for failing to do so.   As to the indirect compulsion to give evidence, the Government state that there is a real distinction between, on the one hand, compelling an accused to speak on pain of criminal sanctions and, on the other, conferring a discretion on the trier of fact, in appropriate cases and subject to important safeguards, to draw inferences from the accused's decision not to offer any explanation of the evidence establishing a prima facie case against him.        The Government submit that the matters that led the Court to conclude in the case of John Murray v. United Kingdom (see above), that the degree of compulsion (as regards the giving of evidence) was not such as to amount to a violation of Article 6 (Art. 6) of the Convention, are applicable to all cases where the provisions of the 1988 Criminal Evidence Order are applied.        The Government submit that in all cases where an inference is drawn under Article 4 of the 1988 Criminal Evidence Order by the domestic court, it will be because the situation is one which the court considers clearly calls for an explanation from the accused.   They argue that this accords with the procedure adopted by the Court in John Murray v. United Kingdom (see above) where it was stated that in order to decide whether in a particular case it was fair and reasonable to draw any or the particular inference from an accused's silence, regard must be had to the other evidence in the case and to all the circumstances of the case.   Accordingly, it is claimed that in all cases where an inference is drawn under the 1988 Criminal Evidence Order, the domestic court will have taken into account the necessary factors before deciding to draw the inference.        The Government further submit that the removal of the right of the defendant to submit a written sworn statement of evidence, as effected by the Police and Criminal Evidence (Northern Ireland) Order 1989, and the requirement that, if an accused does give evidence, he does so on oath and subject to his account being probed in cross- examination (the most effective way of enabling the trier of fact to judge whether or not an accused is telling the truth) is an important corollary to the right of an accused to give evidence and does not render the trial unfair.        The applicant submits that the right to a fair trial includes the right to be presumed innocent and the right not to be forced to incriminate oneself or to give evidence in one's defence.   He submits that there is an overlap between the "right to silence" and the "presumption of innocence".        The applicant submits that Article 4 allows inferences to be drawn from an accused's silence in any case where a "prima facie" case has been established, that is the case has not been dismissed by the judge on the basis that there is insufficient evidence to support the prosecution.   He further submits that the Government's claim that inferences can only be drawn when "common sense permits it" or when "it is proper" in fact gives a tribunal full power to decide when to draw such inferences, there being no clear definition as to the circumstances in which inferences can be drawn.   He submits that in view of this the safeguards relied on by the Government as significant in protecting an individual's rights should not be overestimated.        The applicant contends that the de facto position under Article 4 of the 1988 Criminal Evidence Order is that the accused is compelled to give evidence.   As stated above, a refusal to give evidence can result in adverse inferences being drawn against an accused irrespective of how weak the prima facie case is.   The accused is called to give evidence either by a judge acting as judge and jury or by a judge in front of the jury.   In view of the warning made under Article 4, he is likely to be looked on unfavourably by either tribunal of fact if he fails to accede to the judge's call to give evidence such that he is under a strong compulsion to give evidence.   Finally, if he does accede to the judge's order and is sworn in, a refusal to answer any question put to him in the witness box, whether potentially incriminatory or not, would render him liable to prosecution for contempt of court, while if he lied under oath he could be prosecuted for perjury.        The applicant therefore submits that Article 4 of the 1988 Criminal Evidence Order operates against the principle that an accused cannot be forced to incriminate himself, considered by the Commission to be an important element of a fair trial (No. 19187/91, Saunders v. United Kingdom Comm. Rep. 10.5.94, para. 72).   He further makes reference to Article 14(3)(g) of the International Covenant on Civil and Political Rights that guarantees the right of an accused person "not to be compelled to testify against himself and to confess guilt". The applicant makes further reference to the UN Human Rights Committee in Kelly v. Jamaica where it was held that the "right against self incrimination" implied an obligation for the investigating authorities to abstain from any direct or indirect physical or psychological pressure with a view to obtaining a confession of guilt.        The applicant further submits that the application of Article 4 of the 1988 Criminal Evidence Order in a criminal trial involves numerous breaches of the right to be presumed innocent.   He submits that an essential element of the right is that the burden of proof is on the prosecution and that any doubt should benefit the accused (Eur. Court HR, Barberà, Messegué and Jarbado v. Spain judgment of 6 December 1988, Series A no. 146 para. 7).   He submits that the fact that Article 4 entitles a judge or jury to draw the inference that the accused must be guilty of the offence charged, from his refusal to give evidence, demonstrates that the burden of proof has been reversed, such that the applicant cannot have been presumed innocent.   He further submits that the right against self-incrimination referred to above is itself an aspect of the presumption of innocence; the accused should not be required to prove anything, let alone his innocence and should not therefore be compelled, whether directly or indirectly to give evidence.   As regards the Government's submission that the accused cannot be found guilty simply because he has refused to give evidence, the applicant states that it would be absolutely astonishing if he could be.        Consequently the applicant submits that the prosecution has not discharged the burden of proving the guilt of the accused and has only proved a prima facie or provable case.   The role that the adverse inference played in determining guilt was of such significance as to "prove" the case, and in these circumstances it cannot be said that the applicant was presumed innocent.   By the trial judge putting pressure on the applicant to give evidence and so effectively asking him to prove his innocence, the burden of proof was reversed and the right to be presumed innocent as laid down in Article 6 para. 2 (Art. 6-2) of the Convention was violated.        The applicant submits that there were aggravating features that also made the trial unfair.   First, the evidence of one of the main prosecution witnesses, Mrs. F., was submitted by way of a sworn written statement, which the trial judge exercised his discretion under Article 3 of the Criminal Justice Order to admit despite the objections of the defence.   The applicant therefore had no chance to cross-examine the witness in particular as to (a) the nature of the noise which she had heard in her garden, (b) whether it could have come from an adjacent garden or alleyway, (c) the time lag between the noise and the ringing of the door bell, (d) whether the police had been speaking to some youths in the street and (d) why she had said that the conversation on the doorstep was between the accused and her daughter, not herself, as police evidence had established.   Secondly, the written statement of Mrs. F. was untruthful and unreliable and no weight should have been placed on it.   Thirdly, the judge failed to give any or sufficient weight to the argument of the defence, based on forensic evidence, that it was more likely that the gun had been placed against the step than thrown across a high wall.   Fourthly, there was absolutely no forensic evidence to connect the applicant to the gun and there was evidence to suggest contact with other fibres.   Finally, the applicant refers to the fact that he accounted for his movements, his actions and his presence to the police who arrived at the scene in Easton Crescent and that he gave a very full account to the police when he was interviewed more than eight times over a period of two days at Castlereagh Police Station.   It is submitted that his evidence was tested in a very searching way by experienced detectives and that sworn testimony could not have added to what he had already said.        The Commission considers, in the light of the parties' submissions, that these complaints raise complex issues of law and fact under the Convention, the determination of which should depend on an examination of the merits of the application as a whole.   The Commission concludes, therefore, that this part of the application is not manifestly ill-founded, within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   No other grounds for declaring it inadmissible have been established.   2.    The applicant further complains that Mrs. F, the main prosecution witness, had given evidence by way of a written statement and that it had not been possible for the applicant's representative to cross- examine her in court.   He invokes Article 6 para. 3(d) (Art. 6-3-d) of the Convention.   That provision, so far as relevant, provides as follows.        "3.    Everyone charged with a criminal offence has the      following minimum rights: ...              d.     to examine or have examined witnesses against him and      to obtain the attendance and examination of witnesses on his      behalf under the same conditions as witnesses against him;"        The Commission observes that the applicant first made this complaint by letter of 8 September 1993, when a request was made to amend his original application, which is over six months from the date of the final decision in relation to his complaints, which was the judgment of the the Court of Appeal given on 30 July 1992.   The complaint was then included in the applicant's observations submitted on 29 June 1994, that is over 16 months from the final decision.        It follows that this part of the complaint must be rejected in accordance with Article 27 para. 3 (Art. 27-3) of the Convention as not having been made within the requisite six month time period.        For these reasons, the Commission, unanimously ,        DECLARES ADMISSIBLE without prejudging the merits, the      applicant's complaints relating to the inferences drawn from his      refusal to give evidence in his defence;        DECLARES INADMISSIBLE the remainder of the application.           H.C. KRÜGER                           S. TRECHSEL          Secretary                             President      to the Commission                     of the Commission