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. 23496/94                       by Dermot QUINN                       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 30 September 1993 by Dermot QUINN against the United Kingdom and registered on 16 February 1994 under file No. 23496/94;        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      21 December 1995 and the observations in reply submitted by the      applicant on 10 March 1995;   -     the further observations of the applicant, submitted on      3 April 1996 and those of the respondent Government submitted on      10 May 1996.        Having deliberated;        Decides as follows:   THE FACTS        The applicant is an Irish citizen born in 1964 and currently serving a prison sentence in the Maze prison, Northern Ireland. He is represented before the Commission by Mr. Martin Donaghy, a solicitor practising in Dungannon.   a.    The particular circumstances of the case        The facts of the present case as submitted by the parties may be summarised as follows.        On 13 April 1988 two gunmen fired a considerable number of shots at two detective constables in the Royal Ulster Constabulary (RUC), I.M. and S.S., as they drove along a small lane leading off Ballygasoon Road in County Armagh.   A green Datsun car, which had pulled on to the road in front of them and reversed back towards the police officers, drove off after the incident.   On the same day, three members of the O'Hagan family made statements to the police that the armed gunmen had arrived at their house (which was near to the scene of the shooting), had seized the keys to their brown Peugeot car, and had driven off in it.   The police later found the cars abandoned, with 2 balaclava helmets in the Peugeot.        The applicant was a passenger in a car driven by Mrs. McCartan that was stopped by the police at a police check point in the vicinity of the shooting one hour after events at the O'Hagan home. On being questioned Mrs. McCartan stated that she was taking the applicant to his girlfriend's home in Dungannon and the applicant stated that he had been working on the mushrooms for Mr. and Mrs. McCartan and that he was going to his girlfriend's home at Dungannon. The applicant and Mrs. McCartan   were arrested under section 12 of the Prevention of Terrorism Act 1984.   The applicant was told that he was suspected of being involved in an attempted murder, several miles away.   Paper bags were put over the hands of the applicant and they were both taken to Gough Barracks, Armagh.   The applicant was interviewed from 14 April 1988 to 19 April 1988.   He maintained silence throughout this period.   On termination of the interviews, the applicant was charged with three offences of attempted murder and possession of ammunition and was remanded in custody.        On 28 September 1988, at a preliminary investigation of the three offences charged, the three O'Hagans were summoned to give evidence before the Magistrates' Court.   They failed to appear. Consequently, they were arrested and brought to court on 29 September 1988 where they stated that they were unwilling to make depositions because they were afraid of the consequences. In the absence of a prima facie case against the applicant, the Court discharged him.        On 26 October 1988, the Criminal Justice (Evidence etc) (Northern Ireland) Order 1988 (hereinafter "the Criminal Justice Order") came into force.   It provided, inter alia, for the admission of evidence in criminal proceedings by way of written testimony in circumstances where the witness in question refuses to give oral evidence due to fear of reprisals (see Relevant domestic law and practice below).        On 16 July 1990, the applicant was again arrested in relation to the shootings of 13 April 1988, this time under section 14 of the Prevention of Terrorism (Temporary Provisions) Act   1989.   He asked to see a solicitor and the police office attempted to contact one on his behalf. Before a solicitor arrived, the applicant was cautioned in accordance with Article 3 of the 1988 Criminal Evidence (Northern Ireland) Order 1988 (hereinafter the "1988 Criminal Evidence Order") in the following terms:        "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      may be treated in court as supporting any relevant evidence      against you. If you do wish to say anything, what you may say may      be given in evidence."        The applicant was asked if he understood the caution but made no reply. He was also given Appendix 'D' which set out the circumstances in which adverse inferences could be drawn against him under the 1988 Criminal Evidence Order.   He was asked to read it but showed no interest.   It was then read to him and he was asked if he understood or wished to ask anything.   In the course of the interviews the applicant was asked to account for the firearms residue that had been identified in his jacket pocket, the fibres that had been found in his hair, and the glass fragments that had been found in the balaclavas on 13 April 1988.   In relation to each of these questions he was warned under Article 5 of the 1988 Criminal Evidence Order of the consequences of his failing to give explanations.   He made no reply to any questions.   He maintained his silence throughout a second interview which also took place before the arrival of his solicitor.        Following the second interview, the applicant was charged with two counts of attempted murder in respect of I.M. and S.S. on 13 April 1988 contrary to Article 3 of the Criminal Attempts and Conspiracy (Northern Ireland) Order 1983 and common law and with the possession of firearms and ammunition with intent by means thereof to endanger life or cause serious injury to property, contrary to Article 17 of the Firearms (Northern Ireland) Order 1981.        The three O'Hagans were summoned to appear as witnesses in a preliminary investigation before the Resident Magistrate. Two appeared but refused to give evidence.        The applicant was tried before a single judge sitting in a "Diplock court" (a court specially convened for the trying of terrorist offences) in respect of the three charges referred to above.   The O'Hagans were summoned to appear as witnesses.   Again, only two came to court where they stated that they did not wish to give evidence as, they said, "it is a non-jury trial".        The prosecution requested the judge to exercise his discretion under paragraph 3 of the Criminal Justice Order to admit the written statements of the O'Hagans, that had been taken by police officers on 13 April 1988, as evidence in the proceedings.    The applicant contested the admission of the statements, claiming that since the applicant would not be able to cross-examine the witnesses, the admission of the evidence would result in unfairness to the accused.        In ruling that the statements were admissible, the judge stated the following:        "I am satisfied beyond a reasonable doubt that the three members      of the O'Hagan family did not give evidence at the two      preliminary investigations because of fear. I have no doubt that      that fear has continued and the reason why <they> did not give      evidence at this trial was through fear... I am satisfied beyond      a reasonable doubt that the reason stated in this Court ... that      they did not wish to give evidence because this was a non-jury      trial is completely untrue. I am satisfied that this was a      concocted and untruthful reason which was suggested to them by      some-one else....        ..The provisions of Articles 5 and 6 of the 1988 Order are      clearly designed to ensure that the accused receives a fair      trial.   As I am satisfied, having regard to those provisions,      that it is in the interests of justice that the statements of the      three O'Hagans should be admitted as evidence, it follows that      I am satisfied that the accused will receive a fair hearing."        In accordance with Article 6 of the 1988 Order, the judge found that the quality of the evidence in the statements was excellent with regard to consistency and reliability and that there was no risk of unfairness to the applicant who could have either given evidence himself or called other witnesses to controvert the statements.        The prosecution evidence   against the applicant also included forensic evidence: fibres from the applicant's hair matched those from the balaclavas found in the abandoned Peugeot and firearms' residue was found in the applicant's jacket pockets.        The applicant gave evidence that at the relevant time he had been working in the mushroom house on the McCartan's farm and had worn a black woolly type hat when doing so.   He suggested that the firearms residue found in his jacket might be due to the fact that he had been out shooting with an uncle and that on occasions he had picked up empty shotgun cartridges in the fields near his house. He also suggested that he might have been in contact with a Hilti gun when he had done engineering work in the past.   He also explained that he had not told the police on the occasion of his second arrest about working on the farm since he had been arrested for something very serious and did not want to get into anything until he had seen his solicitor. Mr. McCartan appeared as a witness for the defence and gave evidence supporting the applicant's alibi.   He stated that the accused helped him with cattle and with mushrooms and that on 13 April 1988 the accused had been helping him with mushrooms.   The applicant had helped him with the mushrooms until about 9.00 pm and had asked his wife to drive him to Dungannon to his girlfriend's.        The judge did not accept the applicant's defence and stated the following:              "Observing the accused giving his evidence, I formed the      view from his demeanour and from the way in which he gave his      evidence that he was lying and that he gave a lying account of      what he did between 5.00pm and 9.00pm on 13th April 1988.              Observing Mr. McCartan giving his evidence it was patently      obvious from his demeanour and the way which he gave his evidence      that he was lying and that he had come into the witness box to      give a totally untruthful account of what had happened on the      afternoon and evening of 13th April in order to resist [assist]      the accused".        In his judgment, the judge found the applicant guilty having regard to the forensic evidence and the applicant's presence in the vicinity of the shooting. He also relied on the "very strong adverse inference" which he drew under Article 3 of the 1988 Evidence Order from the applicant's silence:              "The accused was asked in cross-examination why in      interviews in July 1990 he had not told the police that he had      been working at the McCartan's on the evening of 13th April 1988.      He replied that there had been talk of people going into police      stations and being forced to make a statement.   He also said that      he had been arrested for something very serious and that he did      not want to get into anything (and by this I understood him to      mean that he did not want to say anything to the police) until      he had seen his solicitor.   I did not believe the accused when      he gave these reasons for not giving any replies to the police.      If it was true that he had been working at McCartan's at the time      that the detective constables were attacked, it would have been      obvious to him that he should have told the police of this, and      it is quite clear that he would not have needed the advice of a      solicitor before giving an account to the police which if true      would have cleared him of the offences of which he was accused.      I am satisfied that his conduct in giving no answers whatever to      the questions put   by the police was a deliberate tactic which      a man with a truthful explanation in respect of the matters put      to him would not have adopted.        Mr Harvey <counsel for the applicant> submitted that an adverse      inference should not be drawn against the accused under Article      3, because he had asked to consult with a solicitor when he first      arrived at Gough Barracks Police Office, and   section 15 of the      Northern Ireland (Emergency Provision) Act 1987 gave him a right      to consult a solicitor but the police interviewed him before his      solicitor came to the Gough Barracks Police office to advise him.      I reject that submission. The Criminal Evidence (Northern      Ireland) Order 1988 was made law after section 15 of the Northern      Ireland (Emergency Provisions) Act 1987 became law, and I      consider that Parliament did not intend 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 of access      to legal advice given by section 15 of the 1987 Act. The present      case was not one where the truthful explanation that a suspect,      being interviewed by the police, could give, might or might not      clear him of guilt and where he would need the advice of a      solicitor before deciding to give the explanation. As I have      already stated, if it were true that the accused   was working at      the McCartan's on the evening of 13 April 1988 when the two      detectives were attacked, it would have been obvious to him that      he should give this explanation and there was no reason why he      should see a solicitor before giving that explanation. I consider      it to be clear that Parliament did not intend that the change in      the law brought about by Article 3 which permits and contemplates      the drawing of a common sense inference in an appropriate case      should be stultified by the existence of the right to legal      advice given by section 15 of the 1987 Act. In the present case,      I draw the strong adverse inference against the accused that his      account in the witness box that on the evening of 13 April 1988      he had been working in the mushroom house, wearing a black woolly      hat, was a complete falsehood. This matter taken together with      the matters which I have referred to in (i), (ii) and (iii) above      <the forensic evidence and the applicant's presence in a car 5-6      miles away from the scene an hour after the attack satisfies me      that he was a member of the terrorist gang who attacked the two      detective constables and that he is guilty of the three counts      on the indictment."        The judge drew no inferences under Article 5 of the 1988 Criminal Evidence Order because the applicant had been asked to account for evidence that was present at the time of the first arrest on 13 April 1988 not at the time of the second arrest on 16 July 1990.        On 23 December 1991, the applicant was convicted on two counts of attempted murder and on a single count of possession of firearms and ammunition with intent. He was sentenced to a total of 25 years' imprisonment.        The applicant appealed on the grounds, inter alia, that the trial judge had erred in admitting the O'Hagan statements in evidence and that the trial judge had erred in drawing an adverse inference under Article 3 where the accused was questioned before receiving legal advice which he had requested.        By its judgment of 17 September 1993, the Court of Appeal of Northern Ireland found that the judge had not erred in admitting the O'Hagan statements. Further, as regards the drawing of adverse inferences, the Court agreed with the trial judge:        "it is inconceivable that if Parliament intended Article 3 should      be read subject to s. 15 of the 1987 Act it would not have said      so expressly...so far as the technical requirements of the law      are concerned we are satisfied that there was no breach of any      of those provisions by the interviewing officers in what they      did. What then of the merits of the matter on which Mr. Harvey      placed great stress? His main submission was that it was unfair      and wrong for the judge to draw an adverse inference in the      unusual circumstances of this case. In our view however it is      important to look at the history of this case and particularly      at the interviews during the first arrest period. During those      earlier interviews after his first arrest the appellant was made      completely aware of the forensic case which the police had      against him... and... it would have been the easiest thing in the      world for him, after the second arrest and after he had been      warned clearly by the detectives of the consequences of his not      saying anything on which he wished to rely later in his defence -      it was the easiest thing in the world for him to say, "I can      explain those fibres because I was wearing an acrylic hat a few      hours before I was arrested." As regards firearms residues where      was the difficulty in saying to the interviewers that he was      often out with uncles who used sporting guns and often picked up      spent cartridges? He had nearly two years to think out his      position... No doubt...there had been a change in law between his      two arrests - a point which must have been obvious to him when      on 16 July 1990 the detectives explained the new rules in law,      yet he made no request whatever for a postponement of the      interview when it started ..Moreover D/I Cardew was not      challenged when he said in evidence that there had been no      deferral of the appellant's right to see a solicitor and if the      appellant had asked for a postponement he would have immediately      stopped the interview. In the result we take the view that there      is no question of unfairness in what the learned judge did and      that he was entirely right in drawing the inference which he      did."        The Court dismissed the applicant's appeal against his convictions.   b.    Relevant domestic law and practice        Admissibility of statements of first-hand hearsay        Article 3 of the Criminal Justice (Evidence etc) (Northern Ireland) Order 1988 provides so far as relevant:        "3-(1) ...              a statement made by a person in a document shall be            admissible in criminal proceedings as evidence of any fact            which direct oral evidence by him would be admissible if -            ...                    (ii) the requirements of paragraph 3 are satisfied...                    (iii) the requirements   mentioned in paragraph 1(ii)                  are -                         (a) that the statement was made to a police                       officer... and                         (b) that the person who made it does not give                       oral evidence through fear..."        Article 6 provides that the court should follow certain principles in determining whether a statement should be admitted.   It provides :        "5(1)If, having regard to all the circumstances -            (a)    the Crown Court -                  (i)   on a trial on indictment; or ..            (b)    the Court of Appeal;...            is of the opinion that in the interests of justice a            statement which is admissible by virtue of Article            3...nevertheless ought not to be admitted, it may direct            that the statement shall not be admitted.      (2)    Without prejudice to the generality of paragraph (1), it            shall be the duty of the court to have regard -              (a)    to the nature and source of the document containing                  the statement and to whether or not, having regard to                  its nature and source and to any other circumstances                  that appear to the court to be relevant, it is likely                  that the document is authentic;            (b)    to the extent to which the statement appears to supply                  evidence which would otherwise not be readily                  available;            (c)    to the relevance of the evidence that it appears to                  supply to any issue which is likely to have to be                  determined in the proceedings; and            (d)    to any risk, having regard in particular to whether it                  is likely to be possible to controvert the statement                  if the person making it does not attend to give oral                  evidence in the proceedings, that its admission or                  exclusion will result in unfairness to the accused.."        Article 6 provides that a statement prima facie admissible   under Article 3 which appears to the court to have been prepared for the purposes of "pending or contemplated criminal proceedings" is not to be given in evidence:              "in any criminal proceedings without the leave of the            court, and the court shall not give leave unless it is of            the opinion that the statement ought to be admitted in the            interests of justice; and in considering whether its            admission would be in the interests of justice, it shall be            the duty of the court to have regard -              (i) to the contents of the statement;              (ii) to any risk, having regard to whether it is likely to            be possible to controvert the statement if the person            making it does not attend to give oral evidence in the            proceedings, that its admission or exclusion will result in            unfairness to the accused or, if there is more than one, to            any one of them; and              (iii) to any other circumstances that appear to the court            to be relevant."   Provisions governing inferences which may be drawn from an accused's silence        Article 3 of the Criminal Evidence (Northern Ireland) Order 1988 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."        Provisions governing access to a solicitor        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...".     COMPLAINTS   1.    The applicant complains that the drawing of an adverse inference from his silence in police custody infringes his rights under Article 6 paras. 1 and 2 of the Convention not to be required to incriminate himself, the presumption of innocence, his right to silence and the principle that the prosecution bear the burden of proving their case without assistance from the accused. He submits that this must particularly be the case where an accused is penalised for failing to make a statement in an interrogation conducted by the police before he receives advice from his lawyer.   In his reply to the Government's Observations, the applicant has further invoked Article 6 para. 3(c) in conjunction with Article 6 para. 1 of the Convention in respect of the denial of access to a solicitor.   2.    The applicant further complains of the admission in evidence of the statements of witnesses who were not present in court to be examined or cross-examined in court. He invokes Article 6 para. 3 (d) of the Convention.   3.    The applicant also invokes Article 6 paras. 1 and 7 of the Convention on the basis that the rules permitting the admission of the witness statements came into force after the alleged crimes took place.   PROCEEDINGS BEFORE THE COMMISSION.        The application was introduced on 30 September 1993 and registered on 16 February 1994.        On 30 August 1994 the Commission decided to communicate the application to the Government and to ask for written observations on the admissibility and merits of the case.        The Government observations were submitted on 21 December 1995 after one extension in the time-limit fixed for this purpose.   The applicant's observations in reply were submitted on 10 March 1995 after two extensions in the time-limit fixed for this purpose.        On 20 May 1995 the Commission decided to adjourn further consideration of the application pending the outcome of the proceedings before the European Court of Human Rights in the case of John Murray v. United Kingdom (No. 18731/91).        On 15 September 1995 the Commission decided the grant the applicant legal aid.        On 2 March 1996 the Commission decided to invite the parties to submit any additional observations that they might consider appropriate on the relevance of the reasoning of the European Court of Human Rights in its judgment of 8 February 1996 in the case of John Murray v. United Kingdom, to the facts of the application.        On 3 April 1996 the applicant submitted further observations. On 10 May 1996 the respondent Government submitted further observations after one extension in the time-limit set for this purpose.   THE LAW   1.    The applicant complains that the drawing of adverse inferences from his silence in police custody and the operation of the provisions of the 1988 Criminal Evidence Order infringed his right not to incriminate himself, the presumption of innocence, his right to silence and the principle that the prosecution bear the burden of proving their case without assistance from the accused.   He complains in particular as to the adverse inferences drawn from his refusal to answer police questions in the absence of a legal adviser. He invokes Article 6 paras. 1 and 2 (Art. 6-1, 6-2) of the Convention.   As regards access to legal advice, the applicant invokes Article 6 para. 3 (c) in conjunction with Article 6 para. 1 (Art. 6-3-c+6-1) of the Convention. The applicant further complains that the admission in evidence of the statements of the O'Hagans, who were not present in court to be examined or cross-examined, was contrary to Article 6 para. 1 (Art. 6-1) and to Article 6 para. 3 (d) (Art. 6-3-d) of the Convention. Those provisions, so far as relevant, provide 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.        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;              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".   a.    Concerning the drawing of inferences under the 1988 Criminal      Evidence Order        The Government submit inter alia that the drawing of inferences under Article 3 of the 1988 Criminal Evidence Order did not render the applicant's trial unfair contrary to Article 6 para. 1 (Art. 6-1) of the Convention or deprive the applicant of his right to be presumed innocent contrary to Article 6 para. 2 (Art. 6-2) of the Convention. They refer to the safeguards of Article 3 of the Order: that inferences may only be drawn when the fact that the accused failed to mention when questioned by police was one that he could reasonably have been expected to mention and that he later relied on in his defence; that inferences can only be drawn in a specific and limited category of case; that before any inference can be drawn against him the accused must have been warned as to the effect of his failure to mention any facts later relied on; that the accused retains the right to remain silent and will not be liable to any criminal charge for remaining silent in the face of police questioning; that the accused shall not have a case to answer or be convicted solely on an inference drawn from his failure to mention facts later relied on (Article 2(4)); that the trier of fact has a discretion as to whether to draw inferences and, in circumstances where the trier of fact considers the accused is particularly vulnerable, can draw no inference; and that the trier of fact may only draw such inferences as appear proper which will depend on all the circumstances of the case.        As regards the inferences that were drawn under Article 3 of the Order in this case, the Government submit that there was a prima facie case against the applicant, based in particular on the forensic evidence against him: (a) the fibres linking the balaclavas with the accused and (b) the firearms residue found in the pockets of the applicant's jacket.   They contend that a central feature of the case was the fact that the trial judge did hear the applicant give evidence and concluded that the applicant's version of events was a "lying account".   The inference drawn under Article 3 was that his evidence was a "complete falsehood", and the inference in this case therefore went to support the conclusion that had already been reached by the judge as to the applicant's credibility.   They submit that the applicant was warned on several occasions in the course of the 1990 interviews and was well aware of the significance of his failure to mention any of the matters which he subsequently put forward in his defence.        As regards the presumption of innocence the Government submit that Article 3 of the Order does not make provision, either in form or in substance, for any presumption of fact or law against the accused. The prosecution remains obliged to prove beyond reasonable doubt all the elements of the offence charged. The Government submit that Article 3 merely enabled the trial judge to draw an inference based on common sense.        The applicant submits that the 1988 Criminal Evidence Order has effectively abrogated the right to silence, since even if the accused can still remain silent, he does so at his peril, running the risk of allowing a prima facie case to be established against him on the basis of inferences drawn under Article 3(2)(A) of the 1988 Criminal Evidence Order which expressly provides that in determining whether there is a case to answer (prima facie case) the Court or Jury may draw such inferences from silence under police questioning as appear proper.   By remaining silent he thereby risks securing his conviction under Articles 3 and 4 which allow the court or jury to infer that the accused is guilty of the offence charged.   He recalls that in the case of John Murray v. United Kingdom, one of the factors considered by the Court to be a safeguard in the application of Articles 4 and 6 of the 1988 Criminal Evidence Order is the requirement that the prosecution must first establish a prima facie case before adverse inferences can be drawn.   He submits that, by contrast, Article 3 is subject to no such safeguard.        Whilst he accepts that a person can not be convicted solely on the basis of an inference drawn from a failure to mention facts later relied on in defence, he contends that persons who would previously have been acquitted or discharged for insufficient evidence against them are now being convicted.   He refers to the limitless and comprehensive nature of the inferences which may be drawn, there being no statutory guidance as to what inferences may be "properly" drawn in any of the circumstances contemplated by, inter alia, Articles 3 and 4.   He notes that the absence of legal advice does not preclude the court from drawing inferences from the applicant's silence in the face of police questioning under Article 3, as happened in this case.        He further claims that the situation in which the applicant was being questioned was not one which "clearly called for an explanation", as described by the Court in its judgment in John Murray v. United Kingdom; in particular he was being questioned about very serious offences without having had any access to a lawyer.        As regards the Government's claim that the accused is warned in ordinary language as to the consequences of his remaining silent in the face of police questioning, the applicant states that this is simply wrong, Article 3 containing no such requirement.   Whilst accepting that a warning was given, the applicant submits that in the circumstances of this case the warning given could not be characterised as an "appropriate warning", the existence of which was considered by the Court in John Murray v. United Kingdom to be an important safeguard in the application of the 1988 Criminal Evidence Order.   First, it was delivered at a time when the applicant had not had the benefit of proper legal advice.   Secondly, there was no requirement to explain (unlike Article 4 and Article 6 of the 1988 Criminal Evidence Order) in ordinary language what the effect of the section was.   Thirdly, the applicant was warned prior to being charged or informed that he was to be charged and it cannot therefore be appropriate in these circumstances to warn a person about the adverse consequences of failing to mention any fact "relied on in his defence".        The applicant further submits that since Articles 3 and 4 were both applied in his case, he was put in an impossible situation. If, as was the case, he had not answered police questions but had then agreed to give evidence following the judge calling him to do so under Article 4, inferences could have been drawn against