CEDH · CASELAW;REPORTS;ENG — 11 mars 1997

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BRATZA           23   PARTLY DISSENTING OPINION OF MR S. TRECHSEL JOINED BY MR F. MARTINEZ               26   PARTLY DISSENTING AND PARTLY CONCURRING OPINION OF MR E. BUSUTTIL                   28   PARTLY DISSENTING AND PARTLY CONCURRING OPINION OF MR L. LOUCAIDES                   29   PARTLY DISSENTING OPINION OF MR G. RESS         30   APPENDIX:   DECISION OF THE COMMISSION AS TO THE     ADMISSIBILITY OF THE APPLICATION       31   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 an Irish citizen born in 1964 and presently detained in the Maze prison, Northern Ireland. He is represented by Mr Martin Donaghy, a solicitor practising in Dungannon.   3.   The application is directed against the United Kingdom. The respondent Government are represented by Mr Martin Eaton, as Agent, from the Foreign and Commonwealth Office.   4.   The case principally concerns the applicant's complaints concerning the drawing of inferences at his trial from his refusal to answer police questions, lack of access to a solicitor after arrest and the admission in evidence of statements from witnesses who did not testify at his trial. The case raises issues under Article 6 paras. 1, 2, 3(c) and (d) of the Convention.   B.   The proceedings   5.   The application was introduced on 30 September 1993 and registered on 16 February 1994.   6.   On 30 August 1994, the Commission decided to communicate the application to the Government inviting them to submit observations on the admissibility and merits.   7.   On 22 December 1994, after an extension in the time-limit, the Government submitted their observations. The applicant's observations were submitted on 10 March 1995, after two extensions in the time-limit.   8.   On 20 May 1995, the Commission decided to adjourn the application pending the outcome of the case of John Murray v. the United Kingdom before the European Court of Human Rights.   9.   On 2 March 1996, the Commission decided to invite the parties' additional observations on the relevance of the John Murray v. the United Kingdom judgment of 8 February 1996 (Reports 1996-I no. 1).   10.   On 3 April 1996, the applicant submitted further observations and on 10 May 1996, the Government submitted supplementary observations, after one extension in the time-limit.   11.   On 21 October 1996, the Commission declared the application   partly admissible, partly inadmissible. It invited the parties' submissions on specific questions.   12.   On 15 January 1997, the Government submitted further observations, after an extension in the time-limit. The applicant submitted his response on 29 January, after an extension in the time-limit.   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:       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       C.L. ROZAKIS       L. LOUCAIDES       J.-C. GEUS       M.P. PELLONPÄÄ       M.A. NOWICKI       I. CABRAL BARRETO       B. CONFORTI       N. BRATZA       I. BÉKÉS       J. MUCHA       D. ŠVÁBY       G. RESS       A. PERENIČ       C. BÎRSAN       P. LORENZEN       K. HERNDL       E. BIELIŪNAS           E.A. ALKEMA       M. VILA AMIGÓ     Mrs   M. HION     MM   R. NICOLINI       A. ARABADJIEV   15.   The text of the Report was adopted by the Commission on 11 December 1997 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.   The Commission's decision on the admissibility of the application is annexed hereto.   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.   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 in a green car at their house (which was near to the scene of the shooting), had smashed a glass panel in the front door and had seized the keys to their brown Peugeot car, and had driven off in it.   The police later found the cars abandoned, with two balaclava helmets in the Peugeot.   20.   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 at 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.   21.   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.   22.   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 14 December 1988, Article 3 of the 1988 Criminal Evidence (Northern Ireland) Order 1988 (hereinafter the "1988 Criminal Evidence Order") came into effect, allowing the drawing of adverse inferences from the failure of a person to mention to the police particular facts later relied on in his defence (see Relevant domestic law and practice below).   23.   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 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."   24.   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 which had been found in his hair and which seemed to indicate that he had worn one of the balaclava helmets found in the Peugeot, and the glass fragments which had been found in the balaclava helmets and which seemed to indicate that these helmets had been used when a glass panel had been smashed 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.   25.   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.   26.   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.   27.   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".   28.   The prosecution requested the judge to exercise his discretion under Article 3 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.   29.   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."   30.   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.   31.   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.   32.   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.   33.   The judge did not accept the applicant's defence and stated the following:     "If the accused had been working in the mushroom house on the McCartan's farm at Benburb at 8:30 pm on the evening of 13 April 1988, and had been wearing a black woolly hat, it would have been the easiest thing in the world for him to have told these things to the police, particularly as he knew from the earlier interviews in March 1988, which had taken place after his arrest on 13 April 1988, that the police were suggesting that at 8:30 pm on the 13th April 1988 he had been at the lane running off the Ballygassoon Road where the attack took place. But the accused said not a word.   ...     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."   34.   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 Provisions) 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."   35.   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.   36.   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.   37.   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.   38.   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."   39.   The Court dismissed the applicant's appeal against his convictions.   B.   Relevant domestic law and practice   1.   Admissibility of statements of first-hand hearsay   40.   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 of which direct oral evidence by him would be admissible if - ...         (ii) the requirements of paragraph 3 are satisfied...        (3) 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..." 41.   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.."   42.   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."   2.   Provisions governing inferences which may be drawn from an accused's silence   43.   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."   3.   Provisions governing access to a solicitor   44.   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..."   III.   OPINION OF THE COMMISSION   A.   Complaints declared admissible   45.   The Commission has declared admissible the applicant's complaints that the inferences drawn from his failure to answer police questioning violated his right to a fair trial and his right to be presumed innocent of the charges brought against him, that he was denied access to a solicitor and that statements from witnesses who did not testify in court were admitted in evidence.   B.   Points at issue   46.   The issues to be determined in the present case are:     -   whether the drawing of adverse inferences deprived the applicant of a fair trial contrary to Article 6 para. 1 (Art. 6-1) of the Convention;   -   whether the drawing of adverse inferences infringed the presumption of innocence guaranteed by Article 6 para. 2 (Art. 6-2) of the Convention;   -   whether the lack of access to a solicitor after the applicant's arrest infringed Article 6 para. 1 in conjunction with para. 3(c) (Art. 6-1+6-3-c) of the Convention;   -   whether the admission of statements of witnesses who did not give oral evidence infringed Article 6 para. 1 in conjunction with para. 3(d) (Art. 6-1+6-3-d) of the Convention.   C.   As regards Article 6 para. 1 (Art. 6-1) of the Convention (drawing of adverse inferences)   47.   Article 6 para. 1 (Art. 6-1) of the Convention provides, as relevant:     "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. ..."     i.   Submissions of the parties   48.   The applicant submits that the 1988 Criminal Evidence Order has effectively abrogated the right to silence and deprived him of the presumption of innocence, since even if the accused can still remain silent, he does so at his peril. He recalls that in the case of John Murray v. United Kingdom v. the United Kingdom (Eur. Court HR judgment of 8 February 1996 Reports 1996-I no. 1 p. 30), 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.      49.   Whilst he accepts that a person cannot be convicted solely on the basis of an inference drawn from a failure to mention facts later relied on in defence, he contends that this is a meaningless safeguard since in no case will the prosecution fail to present some other evidence.   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. 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 he was questioned was not one which "clearly called for an explanation", as described by the Court in its judgment in John Murray.   50.   The applicant further submits that the operation of Articles 3 and 4 placed him 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 be drawn against him under Article 3. If he had refused to give evidence at trial, inferences could have been drawn against him under Article 3 and Article 4. If he had in fact given an explanation to the police and had then refused to give evidence at trial, inferences could have been drawn against him under Article 4 and also under Article 3 (in circumstances where his defence counsel relies on matters not mentioned to the police). The applicant submits that he gave evidence at trial because he was under a compulsion to do so to avoid an adverse inference being drawn under Article 4, and consequently he incriminated himself to the extent that the court was able to convict him by relying on Article 3. Further, once he had been sworn, a failure or refusal to answer any question put to him could itself have led to adverse inferences being drawn against him under Articles 4(3)(b) and 4(4) of the 1988 Criminal Evidence Order and proceedings being taken against him for contempt of court. It was therefore the combination of the provisions of the Order that was material in the applicant's conviction.     51.   Further, the applicant claims that the case against him was not "formidable" as it had been in John Murray, the evidence consisting largely of statements admitted under the Criminal Justice Order (which established the prima facie case against him), and that without the very strong adverse inference that was drawn, he could not have been convicted. As regards the Government's claim that the inference in this case merely went to support the view already formed by the judge as to the applicant's credibility, the applicant submits that this is not correct, the inferences drawn under Article 3 being an integral part of the decision to convict. The applicant claims that the John Murray case is further distinguishable on the basis that while Murray remained silent from the moment of his arrest, the applicant gave evidence at trial.   52.   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 or deprive the applicant of his right to be presumed innocent. 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.   53.   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. 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.     54.   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.     ii.   Applicable principles   55.   The Court in the John Murray v. the United Kingdom case (Eur. Court HR op. cit. paras. 45-47) iterated the following principles:     a. the right to remain silent under police questioning and the privilege against self-incrimination are generally recognised standards lying at the heart of a fair procedure under Article 6 (Art. 6), providing protection against improper compulsion;   b. it is incompatible with these immunities to base a conviction solely or mainly on an accused's silence or his failure to answer questions or give evidence;   c. these immunities do not however prevent that an accused's silence, in situations   which clearly call for an explanation from him, be taken into account in assessing the persuasiveness of the prosecution case against him;   d. whether the drawing of adverse inferences from an accused's silence infringes Article 6 (Art. 6) is to be determined in light of all the circumstances of the case, having regard to the situations where inferences may be drawn, the weight attached to them by the national courts in the assessment of the evidence and the degree of compulsion.   56.   In the Saunders case (Eur. Court HR Reports 1996, Comm. Report para. 72), the Commission noted that the privilege against self-incrimination was closely allied to the principle of the presumption of innocence in that it reflects that the State bear the general burden of establishing the guilt of an accused, in which process the accused is entitled not to be required to furnish any involuntary assistance by way of confession.     iii.   Application to the facts of this case   57.   The Commission observes that in this case the applicant did give evidence at his trial when called upon to do so by the judge pursuant to Article 4 of the 1988 Criminal Evidence Order. It recalls that the applicant states that he did so to avoid inferences being drawn from his silence. There was however no direct coercion by way of threat of fines or imprisonment as in the Funke and Saunders cases (see eg. Eur. Court HR Funke v. France judgment of 25 February 1993 Series A no. 256-A and Saunders v. United Kingdom judgment of 17 December 1996 Reports 1996-VI No. 24 p. 2044). Having regard to the John Murray case, the fact that such silence may be subject to adverse inferences discloses a level of indirect compulsion, which is not of itself decisive. More important is the role played by those inferences in the proceedings and, especially, the applicant's conviction.   58.   The Commission notes that the trial judge drew a very strong adverse inference from the applicant's failure to mention in reply to police questioning certain elements relied on in his defence, namely, he found that the applicant's assertion that at the time of the attack he had been working at McCartan's wearing a black woolly hat was a complete falsehood. It was not however the only evidence against the applicant, but one of a number of factors taken into account by the judge in reaching a finding of guilt.   59.   The Commission recalls that the other factors relied on by the judge included forensic evidence (acrylic fibres found in the applicant's hair which matched the balaclava helmet found in the O'Hagans' car and the firearms discharge residue found in the pockets of the jacket worn by the applicant when he was arrested) and his presence 5-6 miles away an hour after the attack.   60.   The Commission recalls that inferences drawn under Article 3 of the Criminal Evidence Order were not in issue in the John Murray case. It notes that the purpose of Article 3 is to permit the drawing of proper inferences from the failure of suspects to mention to the police any fact later relied on in their defence, to prevent the hampering of police investigations by accused who take advantage of their right to silence by waiting until trial to spring exculpatory explanations, in circumstances in which the accused has no reasonable explanation for withholding an explanation. It seems to the Commission that the extent to which adverse inferences can be drawn from failure to respond to police questioning must be necessarily limited. While it may no doubt be expected in most cases that innocent persons would be willing to co-perate with the police in explaining that they were not involved in any suspected crime, there may be reasons why in a specific case an innocent person would not be prepared to do so. In particular, an innocent person may wish not to make any statement before he has had the opportunity to consult a lawyer. The Commission therefore considers that considerable caution is required when attaching weight to the fact that a person, arrested, as in this case, in connection with a serious criminal offence and not having been given access to a lawyer, does not provide detailed responses when confronted with incriminatory evidence against him.   61.   In the present case, the applicant was told by the police that he was suspected of involvement in attempted murder and he was asked to comment on the presence of firearms residue in his jacket, of fibres   in his hair and of glass fragments in the balaclavas. He refused to answer any questions. At the trial, however, th