CEDH · CASELAW;REPORTS;ENG — 2 décembre 1997

.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 } .s23A41E03 { width:36pt; display:inline-block } .s8828C2CA { width:31.28pt; display:inline-block } .s9A9585A5 { width:23.34pt; display:inline-block } .s28DAEA75 { width:27.97pt; display:inline-block } .s3BF17DD1 { width:28.07pt; display:inline-block } .s932E7F2A { width:27.5pt; display:inline-block } .s9B2C2C0D { width:18.61pt; display:inline-block } .s79535B21 { width:28.92pt; display:inline-block } .s6814D082 { width:33.64pt; display:inline-block } .s49A78FE0 { width:26.55pt; display:inline-block } .s7742A756 { width:35.15pt; display:inline-block } .s480FA962 { width:25.14pt; display:inline-block } .sC54A673A { width:28.45pt; display:inline-block } .s738DB8B9 { width:27.03pt; display:inline-block } .s31853A82 { width:19.8pt; display:inline-block } .s9EBC6295 { width:15.06pt; display:inline-block } .s811DC823 { width:21.93pt; display:inline-block } .s9288C869 { width:26.97pt; display:inline-block } .s47910EFF { width:19.57pt; display:inline-block } .s490C142E { width:28.91pt; display:inline-block } .sECC8F45 { width:24.18pt; display:inline-block } .s2201579D { width:26.09pt; display:inline-block } .sBD1425D { width:21.84pt; display:inline-block } .s6F71A326 { width:28.44pt; display:inline-block } .s3A84A612 { width:25.61pt; display:inline-block } .s77461277 { width:27.98pt; display:inline-block } .sE9FB6D34 { width:23.25pt; display:inline-block } .s4175127E { width:23.26pt; display:inline-block } .s8F99BB21 { width:10.47pt; display:inline-block } .sB0588F90 { width:31.83pt; display:inline-block } .s53D98941 { width:29.92pt; display:inline-block } .s8CAC48E8 { width:16.61pt; display:inline-block } .sC89A8679 { width:33.17pt; display:inline-block } .s478A9419 { width:30.81pt; display:inline-block } .s6CFF9571 { width:25.89pt; display:inline-block } .s44FBA6C4 { width:31.75pt; display:inline-block } .sFD65D78B { width:29.86pt; display:inline-block } .s31AE7BFB { width:22.38pt; display:inline-block } .s5116A3BA { width:28.52pt; display:inline-block } .s80F1F894 { width:21.82pt; display:inline-block }        EUROPEAN COMMISSION OF HUMAN RIGHTS     Application No. 22384/93     Kevin Murray     against     the United Kingdom     REPORT OF THE COMMISSION     (adopted on 2 December 1997)     TABLE OF CONTENTS                       page   I.   INTRODUCTION   (paras. 1-19)   1     A.   The application     (paras. 2-4)   1     B.   The proceedings     (paras. 5-14)   1     C.   The present Report     (paras. 15-19)   2   II.   ESTABLISHMENT OF THE FACTS   (paras. 20-40)   4     A.   Particular circumstances of the case     (paras. 20-37)   4     B.   Relevant domestic law and practice     (paras. 38-40)   11   III.   OPINION OF THE COMMISSION   (paras. 41-83)   15     A.   Complaints declared admissible     (para. 41)   15     B.   Points at issue       (para. 42)   15     C.   As regards Article 6 para. 1 of the Convention     (paras. 43-58)   15         CONCLUSION       (para. 59)   19     D.   As regards Article 6 paras. 2 and 3(b) of the     Convention     (paras. 60-61)   19         CONCLUSIONS       (paras. 62-63)   19     E.   As regards Article 6 para. 3(c) of the Convention     (paras. 64-69)   20       CONCLUSION     (para. 70)     20     F.   As regards Article 14 of the Convention     (paras. 71-73)   20         CONCLUSION       (para. 74)   21     TABLE OF CONTENTS     Page     G.   As regards Article 13 of the Convention     (paras. 75-76)   21         CONCLUSION       (para. 77)   21     H.   Recapitulation     (paras. 78-83) . . . . . . . . . . . . . . . . . . . . 21   PARTLY DISSENTING AND PARTLY CONCURRING OPINION OF MR. E. BUSUTTIL   22   PARTLY DISSENTING AND PARTLY CONCURRING OPINION OF MR. L. LOUCAIDES   23   APPENDIX I:   PARTIAL DECISION OF THE COMMISSION AS TO THE       ADMISSIBILITY OF THE APPLICATION   . . . . . . . . . . 24   APPENDIX II:   FINAL DECISION OF THE COMMISSION AS TO THE          ADMISSIBILITY OF THE APPLICATION   38     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 a British citizen born in 1970 and presently detained in the Maze prison, Northern Ireland. He is represented by Messrs. John Fahy & Co., solicitors practising in Belfast.   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 and to give evidence in his defence and also denial of access to a solicitor for 48 hours after arrest. The case raises issues under Articles 6 paras. 1, 2 and 3 (b) and (c) of the Convention. The applicant has also invoked Articles 5 para. 3, 13 and 14 of the Convention.   B.   The proceedings   5.   The application was introduced on 27 April 1993 and registered on 15 July 1993.   6.   On 11 October 1993, the Commission decided to communicate the application to the Government inviting them to submit observations on the admissibility and merits.   7.   On 2 March 1994, after two extensions in the time-limit, the Government submitted their observations. The applicant made no submissions in reply.   8.   On 10 October 1994, the Commission decided to declare part of the application inadmissible and to adjourn the remainder of 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.   By letter of 10 March 1996, the applicant stated that he would make no further observations.   11.   On 10 May 1996, the Government submitted supplementary observations.   12.   On 21 October 1996, the Commission declared the remainder of the application partially admissible. It invited the parties' submissions on specific questions.   13.   On 15 January 1997, the Government submitted further observations, after an extension in the time-limit. The applicant made no response.   14.   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   15.   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. PERENI?       C. BÎRSAN       P. LORENZEN       K. HERNDL       E. BIELI?NAS           E.A. ALKEMA       M. VILA AMIGÓ     Mrs   M. HION     MM   R. NICOLINI       A. ARABADJIEV   16.   The text of the Report was adopted by the Commission on 2 December 1997 and is now transmitted to the Committee of Ministers in accordance with Article 31 para. 2 of the Convention.   17.   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.   18.   The Commission's partial decision on the admissibility of the application is at Annex I, its final decision on admissibility at Annex II.   19.   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   20.   On 13 March 1989, at 07.30 hours, W.A., a part-time soldier in the Ulster Defence Regiment (UDR), was injured after being shot four times by two gunmen wearing balaclava helmets over their faces.   21.   At about 10.45 hours on the same day, the police went to the applicant's house and asked him to account for his movements since the previous evening. The applicant stated that he had spent the previous night at a friend's house and that he had returned to his own house at 09.00 hours that day. When questioned about certain items of clothing, in particular a pair of jeans which had mud on them, the applicant explained that he had worn them when out hunting on Saturday 11 March 1989 with his father.   22.   At 11.28 hours, the applicant was arrested under section 12 of the Prevention of Terrorism (Temporary Provisions) Act 1984 in connection with the shooting of W.A..   23.   The applicant was taken to Castlereagh Police Station, where on arrival he requested to see a solicitor. At 13.30 hours, a Detective Superintendent authorised a delay in access to a solicitor for 48 hours, pursuant to section 15 of the Northern Ireland (Emergency Provisions) Act 1987.   24.   The applicant was cautioned, pursuant to Article 3 of the Criminal Evidence (Northern Ireland) Order 1988, that a failure to mention any fact that he later relied on in his defence in court might be treated as supporting the case against him. He was also cautioned, pursuant to Article 5 of the Criminal Evidence Order 1988, in respect of adverse inferences which might be drawn from any failure to account for items of clothing in his possession on which were marks or substances attributable to participation in the commission of an offence, and also in respect of fibres found in his hair from a balaclava helmet allegedly used by one of the gunmen. The applicant remained silent.   25.   The applicant saw his solicitor on 15 March 1989 at 11.26 hours. He was advised to remain silent.   26.   On 18 March 1989, the applicant was charged with attempted murder and possession of a firearm with intent to endanger life. He was subsequently charged with the wounding of W.A. and possession of a firearm for no lawful object.   27.   The applicant was tried before a judge sitting without a jury from 26 to 28 November 1990.   28.   At his trial, the applicant, on the advice of his legal advisers, did not give evidence.   29.   The prosecution case was founded on circumstantial evidence of a forensic nature linking the applicant with the Vauxhall car allegedly used by the gunmen. The evidence consisted of the following:   (a)   fresh tyre imprints at the entrance to a field just off Ballyskeagh Road, towards which the gunmen had run, matching those of a Vauxhall Cavalier ("the car") belonging to P.L.;   (b)   behind the driver seat of the car, a sleeve of a black woollen jumper containing two holes that would have made a balaclava type mask, on which were found particles that were consistent with having originated from the discharge of a cartridge;   (c)   a thumb print of the applicant on the interior rear view mirror but no evidence as to when it was made;     (d)   oral evidence from P., a prosecution witness, that the applicant had flagged the Vauxhall car down at about 01.30 hours on 13 March 1989 and had got into the car to talk to B. for about ten minutes; a written statement by P. stating that the applicant had not got into the car but had talked to E.L., the driver, outside the car;   (e)   evidence from P. that on Saturday 11 March 1989 the applicant had driven E.L. and himself to and from a dance in Omagh in the Vauxhall car and had dropped him at home at 03.00 hours;   (f)   evidence from L.L. that he had seen the applicant driving with his brother E.L. some time in the beginning of March;   (g)   evidence from P.L., the owner of the car, that he had seen his son E.L. in the company of the applicant but had never seen him in the car;   (h)   three fibres in the applicant's hair that were microscopically indistinguishable from the fibres of the balaclava.   Two of the fibres were further analysed and found to have been made from the same type of acrylic material as the balaclava.   One of these   was further analysed and found to be dyed with the same combination of dyestuffs as the fibres of the balaclava.   However, these fibres were found to be indistinguishable from the black fibres in the waistband and cuffs of an anorak or black cotton coat belonging to the applicant.   This anorak was found by the police over the back of a chair in the applicant's house when they visited it on the morning of the crime.   The forensic expert's conclusion was that "he would not attach particular weight to that finding";   (i)   muddy jeans;   (j)   the applicant's front door key in the pocket of the muddy jeans;   (k)   evidence from the victim in his statement of evidence and in cross examination that the gunmen wore matching army type combat trousers (not jeans);   (l)   fibres on the applicant's jeans and anorak that were indistinguishable from that of the balaclava but also matched the black fibres of the waistband and cuffs of the anorak such that the forensic expert did not consider much weight could be attached to this finding;   (m)   five fibres on the back of the anorak and the blue jeans which matched the majority coloured fibre components in the Vauxhall's car upholstery.   Two fibres found on each of the front seats of the car that matched the minority turquoise component of the waistband of the anorak.   Although neither the particular Vauxhall car nor the anorak would be a unique source of these fibres, the forensic expert considered that these two findings taken together strongly supported the proposition that the anorak and jeans had been in contact with the front seats of the car.   Although the presence of the small number of fibres found on the applicant's clothing would be consistent with "fairly recent contact", the fibres on the front seats of the car that matched the minority component of the waistband of the anorak could have remained for longer than one or two days, depending on the usage of the car and the number of people getting in and out of it.   If the car had been very little used the fibres could possibly have been on the seats for weeks.   It was feasible that the jeans and anorak could have come either from contact with the Vauxhall "some time ago" or alternatively from contact with other car seats containing identical fibres;   (n)   the firearms expert found nothing of significance on the firearms swabs taken from the applicant's anorak, or other clothing taken from him by the constable.   However, she detected particles consistent with cartridge discharge residue in the inner surface of the waistband area of the muddy blue jeans.   The discharge was consistent with secondary transfer rather than primary discharge residue.   That meant that the particles found came from being in contact with a source of cartridge discharge residue rather than from initial contact with the cartridge discharge residue when the gun was fired.   She could not say positively that the particles actually came from cartridge discharge, but only that it was more than likely that they did.   She accepted that the particles might have fallen from the shotgun used by the applicant and his father on Saturday 11 March when they went shooting, but it was unlikely that the particles would have been there after 24 hours unless the jeans had been taken off and left undisturbed.   If that had been the case however, she considered that she would have been able to conclusively identify the residue as cartridge discharge, which was not the case here;   (o)   evidence from the applicant's father that he and his son had been shooting at rabbits on 11 March, two days before the shooting of the UDR soldier.   30.   On 18 January 1991, the applicant was found guilty of the offences of attempted murder of W.A. and possession of a firearm with intent to endanger life.   He was sentenced to a total of eighteen years' imprisonment.   31.   The judge found the following:     (a)   that the Vauxhall car was used by gunmen;   (b)   that the applicant was not at home at the time the crime was committed and there was no evidence to support his assertion that he was in B.'s house;   (c)   that the applicant had some association with the car at O1.30 hours on 13 March;   (d)   that the relationship between the applicant and the owner of the car was a friendly and easy going one such that the applicant could have borrowed the car for the purposes of the crime;   (e)   that the applicant's left thumb print was found on the interior rear mirror of the car and it could have been made at the material time;   (f)   that the balaclava found in the back seat of the car was consistent with the one seen by the victim and it was left by the gunmen and that some fibres matching it were found in the applicant's hair and he could therefore have been wearing it;   (g)   that there were fibres on the back of the applicant's jeans and anorak that matched fibres in the car upholstery and that the applicant had not got into the car at 01.30 hours as had been claimed by P. in his oral testimony, so that the fibres could not have come from that alleged contact;   (h)   that some firearm residue particles characteristic of secondary transfer were found on the inner waistband of the applicant's blue jeans and that they could have been deposited there if the applicant or one of the gunmen had put his pistol in the waistband of his jeans after the shooting;   (i)   that the blue jeans found three hours after the crime were damp and muddy and the mud was visually the same as in the area where the car was parked;   (j)   that the applicant's front door key was found in the pocket in the jeans; and   (k)   that if the victim was mistaken in his statement of evidence to the police and in cross-examination, but not in evidence in chief, that both gunmen were wearing combat type trousers, the dampness and mud could have been caused by the applicant at or about the car or in the sheugh or in the particular area.     As regards these findings the judge stated:     "Each one of these single matters is not inconsistent with the guilty participation of the   accused in the crime.   Some are more consistent with guilt than others.   Not one of them, however, in itself, proves guilt to the standard of proof required.   For each of them, as Mr B. <the applicant's representative> stressed in his closing speech, there may be a counterbalancing explanation consistent with innocence.   Although, in turn, some of them are less consistent with innocence than others."   32.   In convicting the applicant, the trial judge relied upon Article 4 of the Criminal Evidence Order 1988, pursuant to which at the end of the prosecution case he had called upon the applicant to give evidence in his own defence in default of which adverse inferences could be drawn.   He also drew inferences under Article 3 of the Criminal Evidence Order 1988 from the applicant's silence during questioning by the police.   However, he adopted a different approach in respect of inferences that could have been drawn on the basis that the applicant had given some explanations to the police prior to his arrest.   33.   The trial judge stated in regard to Article 3 of the Criminal Evidence Order 1988 and the applicant's failure to respond to questions by the police:     "By this silence, can it be said that he failed to mention facts relied upon in his defence at the trial? I do not forget that before he was cautioned under Article 3 at Castlereagh he gave a general account of his   movements to Detective Constable Bell and explained the condition of his jeans on the ground that he had been out "hunting" two days before. What he omitted to do in reply to the caution under Article 3 was to repeat these matters of his defence and to fail to answer questions relative to their detail. He omitted to mention at all and this to me is significant that he had driven the Vauxhall car on the Saturday night before the crime and that he had met up with <B., P. and L.> in the early hours of the 13th. I consider that <the applicant> "could reasonably have been expected" to have mentioned these matters at Castlereagh. The "hunting" story could have been investigated by the police. Its forensic significance would have been considered by the firearms expert. The potentially damning evidence of the fingerprint, if left unexplained, found on the car mirror was brought home to the accused at Castlereagh in clear language as was the evidence linking the car to the scene of the crime. The incriminating nature of fingerprint evidence must be well-known to any member of the public. I would have expected a suspect when faced with this, if he had an innocent alternative to give, to have given it.     I do not, however, in all the circumstances draw the strongest adverse inference that one may be entitled to draw in other cases under Article 3. My reason is that he did disclose in general terms some of the facts relied on in his defence. But I do find that his failure to mention the particular matters that he did, many of which were of the greatest importance in his defence, reduces the credibility of his defence and increases the weight of the prosecution case..."     In relation to the applicant's silence in court and the application of Article 4 of the Criminal Evidence Order 1988, the trial judge commented:     "In the instant case it seems to me that what the prosecution has proved in evidence calls for evidence from the accused in the witness box. No reasons have been advanced for his refusal to give evidence. Nor are any reasons apparent to the court for withholding his account on oath. Indeed it seems to me remarkable he has not given evidence. It is not the function of the court to conjure up reasons for his silence. He has been told by the court in plain language what the consequences of his failure may be and he has no doubt been advised by his experienced counsel to the same effect. It is only commonsense, in the circumstances, to infer as proper inference that he is not prepared to assert his innocence on oath because that is not the case. The inference which I draw from his failure to give evidence under Article 4 is stronger and much more to his detriment than that drawn by me under Article 3."   34.   The applicant appealed against his conviction, alleging inter alia that the judge had erred in applying Article 4 of the 1988 Criminal Evidence Order in his case. The appeal was dismissed by the Court of Appeal in Northern Ireland on 25 October 1991.   Lord Chief Justice Hutton, giving the judgment of the court, rejected the argument by the applicant's counsel that the approach of the trial judge had the effect of reversing the burden of proof. It found that the trial judge had not acted improperly in drawing an inference from the applicant's failure to give evidence:     "The right of the court under Article 4 to draw such inferences as appear proper arises once the Crown has established a prima facie case and does not require that the Crown case constituted by the evidence should be 'on the brink' of proving guilt or should create a situation which at common law would be regarded as a 'confession and avoidance' situation. But whether or not the court will draw inferences will depend upon the circumstances of the particular case and, if inferences are drawn, the strength of those inferences will also depend upon the particular circumstances of the case.     There may be cases where, despite the refusal of the accused to give evidence when called upon by the court to do so pursuant to Article 4, the court may think it inappropriate to draw any inferences against him. Moreover, before convicting, the court, having regard to the evidence adduced by the Crown and to the inferences (if any) which it draws under Article 4, must always be satisfied that the Crown has discharged the burden of proving that the accused is guilty beyond a reasonable doubt. Article 4 does not alter the fundamental principle that the burden rests on the Crown to prove guilt beyond a reasonable doubt.     The refusal of the accused to give evidence on his own behalf does not in itself indicate guilt. Under Article 4 it would be improper for the court to draw the bare inference that because the accused refused to give evidence in his own defence he was therefore guilty. But where commonsense permits it, it is proper in an appropriate case for the court to draw the inference from the refusal of the accused to give evidence that there is no reasonable possibility of an innocent explanation to rebut the prima facie case established by the evidence adduced by the Crown, and for the drawing of this inference to lead on to the conclusion, after all the evidence in the case has been considered, that the accused is guilty...     We consider that in this case the trial judge was entitled to draw the inference from the refusal of the appellant to give evidence in his own defence that there was no reasonable possibility of an innocent explanation which he could put forward to rebut the inference which could be drawn from the evidence adduced by the Crown, and that accordingly the inference which the Crown submitted should be drawn from that evidence, namely that the appellant was one of the gunmen who used the Vauxhall car and who shot and wounded <W.A.>..., was correct and that therefore the appellant was guilty..."   35.   While the Court of Appeal found that the trial judge had erred in drawing an inference under Article 3 of the 1988 Criminal Evidence Order from the failure to offer an explanation for the fingerprint (ie. the fingerprint had not been identified as that of the applicant until after his interviews with the police), it found that this error did not invalidate his general findings in respect of Article 3. It concluded that the convictions were not thereby rendered unsafe or unsatisfactory.   36.   The applicant was granted leave to appeal to the   House of Lords.   37.   In its judgment of 29 October 1992, the House of Lords rejected the applicant's appeal, agreeing with the judgment of the Court of Appeal.     Lord Slynn in the leading judgment stated:     "The accused cannot be compelled to give evidence but he must risk the consequences if he does not do so. Those consequences are not simply, as the appellant contends, that specific inferences may be drawn from specific facts. They include in a proper case the drawing of an inference that the accused is guilty of the events with which he is charged.     This does not mean that the court can conclude simply because the accused does not give evidence that he is guilty. In the first place the prosecutor must establish a prima facie case - a case for him to answer. In the second place in determining whether the accused is guilty the judge or jury can draw only 'such inferences from the refusal as appear proper'.   As Lord Diplock said in Haw Tua Tau v. Public Prosecutor at p. 153B:       'What inferences are proper to be drawn from an accused's refusal to give evidence depend upon the circumstances of the particular case, and is a question to be decided by applying ordinary commonsense.'     There must thus be some basis derived from the circumstances which justify the inference.     If there is no prima facie case shown by the prosecution there is no case to answer. Equally, if parts of the prosecution had so little evidential value that they called for no answer, a failure to deal with those specific matters cannot justify an inference of guilt.     On the other hand if aspects of the evidence taken alone or in combination with other facts clearly call for an explanation which the accused ought to be in a position to give, if an explanation exists, then a failure to give any explanation may as a matter of commonsense allow the drawing of an inference that there is no explanation and that the accused is guilty...     In the present case if the only evidence relied on was that relating to the fibres in the hair, on the clothing and in the car, it might well not be enough to justify an inference that the accused was guilty beyond a reasonable doubt. The cartridge residue on the jeans, the thumb print on the mirror and the mud on the trousers, the evidence that he was not at home during the night clearly taken in combination call for an explanation if there was one. The judge was moreover entitled to have regard to the cumulative effect of all the circumstantial evidence in deciding whether a failure to give evidence justified an inference of guilt.     In my opinion the evidence adduced by the prosecution established a clear prima facie case and the trial judge was entitled in all the circumstances of the case, and as a matter of commonsense, to infer that there was no innocent explanation   to the prima facie case and that the accused was guilty... Contrary to the <applicant's> contention, he quite plainly did not proceed on the basis that simply because the accused did not give evidence he was therefore guilty..."   B.   Relevant domestic law and practice   1.   Provisions governing inferences which may be drawn from an accused's silence   38.   Article 3 of the Criminal Evidence (Northern Ireland) Order 1988 (hereafter referred to as the Criminal Evidence 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."   39.   Article 4 of the Criminal Evidence 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 makes it undesirable for him to be called upon to give evidence;     but paragraph (2) does not apply if, before any evidence is   called for the defence, the accused or counsel or a solicitor   representing him informs the court that the accused will give evidence.     (2) Before any evidence is called for the defence, the court       (a) shall tell the accused that he will be called upon by the court to give evidence in his own defence, and       (b) shall tell him in ordinary language what the effect of this Article will be if         (i) when so called upon, he refuses to be sworn;         (ii) having been sworn, without good cause he refuses to answer any question;     and thereupon the court shall call upon the accused to give   evidence.     (3) If the accused       (a) after being called upon by the court to give evidence in pursuance of this Article, or after he or counsel or a solicitor representing him has informed the court that he will give evidence, refuses to be sworn, or       (b) having been sworn, without good cause refuses to answer any question, paragraph (4) applies.     (4) The court or jury, in determining whether the accused is guilty of the offence charged, may       (a) draw such inferences from the refusal as appear proper;       (b) on the basis of such inferences, treat the refusal as, or as capable of amounting to, corroboration of any evidence given against the accused in relation to which the refusal is material."   2.   Provisions governing access to a solicitor   40.   Section 15 of the Northern Ireland (Emergency Provisions) Act 1987 provides as relevant:     "15. Right of access to legal advice     (1) A person who is detained under the terrorism provisions and is being held in police custody shall be entitled, if he so requests, to consult a solicitor privately...     (4) If a person makes such a request, he must be permitted to consult a solicitor as soon as is practicable except to the extent that any delay is permitted by this section...     (8) An officer may only authorise a delay in complying with a request under subsection (1) where he has reasonable grounds for believing that the exercise of the right conferred by that subsection at the time when the detained person desires to exercise it -       ...       (d) will lead to interference with the gathering of information about the commission, preparation or instigation of acts of terrorism; or       (e) by alerting any person, will make it more difficult -         i. to prevent an act of terrorism, or         ii. to secure the apprehension, prosecution or conviction of any person in connection with the commission, preparation or instigation of an act of terrorism."     The delay must be authorised by a police officer of at least the rank of superintendent (subsection (5)(a)), and the detained person must be told the reason for the delay (subsection (7)). The maximum delay is 48 hours.   III.   OPINION OF THE COMMISSION   A.   Complaints declared admissible   41.   The Commission has declared admissible the applicant's complaints that the inferences drawn from his failure to answer police questioning and to give evidence in his defence violated his rights to a fair trial and to be presumed innocent of the charges brought against him as well as his rights of defence, and that he was denied access to a solicitor for 48 hours after his arrest.   B.   Points at issue   42.   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 drawing of adverse inferences deprived him of adequate facilities for his defence contrary to Article 6 para. 3(b) (Art. 6-3-b);   -   whether the denial of access to a solicitor for 48 hours after the applicant's arrest infringed Article 6 para. 3(c) (Art. 6-3-c) of the Convention;   -   whether there has been a violation of Article 14 (Art. 14) of the Convention;   -   whether there has been a violation of Article 13 (Art. 13) of the Convention.   C.   As regards Article 6 para. 1 (Art. 6-1) of the Convention   43.   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   44.   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. They refer to the safeguards provided in Article 4 of the Criminal Evidence Order 1988: 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 Criminal Evidence Order 1988 merely allows the trier of fact to draw such inferences as common sense dictates.   They further refer to the safeguards provided in Article 3 of the Criminal Evidence Order 1988: inferences may only be drawn in a specific limited category of cases (in this case the failure of the applicant to mention facts subsequently relied on in his defence), the accused must be warned of the consequences of remaining silent, the accused will not be prosecuted for refusing to answer police questions, the trier of fact has a discretion whether to draw inferences and may only do so when it appears proper.     45.   The Government further submit that the drawing of inferences under Articles 3 and 4 of the Criminal Evidence Order 1988 did not mean that the trial judge presumed the applicant to be guilty or that the prosecution was not required to prove the case against the applicant to the usual standard, beyond reasonable doubt. Articles 3 and 4 simply enabled the trial judge to draw inferences based on common sense in the light of the "clear prima facie case" (per Lord Slynn) against the applicant.   The Government further submit that 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 his trial unfair.   46.   The Government further submit that the matters that led the Court   to conclude in the case of John Murray v. United Kingdom (Eur. Court HR judgment of 8 February 1996 Reports 1996-I No.1 p. 30), that the degree of compulsion under Article 4 of the Order (as regards the giving of evidence at trial) 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, in particular, that if an inference is drawn under the Criminal Evidence Order 1988 by the domestic court, that will be because the situation is one which the court considers clearly calls for an explanation from the accused and that in this case the domestic court expressly concluded that the weight of the evidence against the applicant called for an explanation from him and that since none was forthcoming at trial, the inference drawn was a matter of common sense.   47.   As to the inferences drawn under Article 3 (Art. 3), the Government submit that a prima facie case based on forensic and other evidence was clearly made out without any need to rely on inferences. While the inferences drawn under Articles   3 and 4 (Art. 3, 4) were part of the totality of the case against the applicant and played a part in the judge's conclusion that the applicant was guilty of the offence of attempted murder, the role played by them was neither unfair or unreasonable having regard to the safeguards referred to above and the careful consideration applied by the courts.     ii.   Applicable principles   48.   The Court in the John Murray case (Eur. Court. HR judgment of 8 February 1996 Reports 1996-I no. 1 p. 30) 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.   49.   In the Saunders case (Eur. Court HR Reports 1996-VI No. 24 p. 2095, 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   50.   The Commission observes that in this case inferences were drawn against the applicant both under Article 3 of the Criminal Evidence Order 1988 for failure to respond to questions by the police and under Article 4 for failure to give evidence at his trial when called upon to do so by the judge.   51.   As regards the compulsion involved, the Commission notes that the applicant was warned that inferences might be drawn from a failure to give explanations for himself in both contexts but that he chose to remain silent, which was not subject to sanction as an offence or contempt of court (see eg. Eur. Court HR Funke v. France judgment of 25 February 1993 Series A no. 256-A and Saunders v. UK judgment of 17 December 1996 Reports 1996-VI No. 24 p. 2044). As in 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.   52.   Concerning the applicant's failure to respond to police questioning, the Commission recalls that the trial judge found that the applicant could have been expected to explain in detail to the police his account of having been "hunting" a few days before, which was relevant to the finding of discharge residue on his jeans, to mention that he had met up with various witnesses during the early hours before the crime was committed and to explain the presence of his fingerprint on the Vauxhall car used in the crime. The Commission observes that the judge took into account the fact that the applicant had mentioned in general terms some of the facts relied on in his defence and did not therefore draw the strongest adverse inferences. The Court of Appeal found that the judge had erred in drawing an inference from lack of explanation of the fingerprint since, in fact, the matter had not been put to him at that time. The Court of Appeal nonetheless found that this one error did not invalidate the reasoning of the judge as regarded the other elements.   53.   In respect of the applicant's failure to testify, the Commission recalls that the judge found that the prosecution case called for evidence from the applicant and that it was only common sense in the circumstances to infer that he was not prepared to assert his innocence on oath because that was not the case. He therefore drew a stronger inference than under Article 3.   54.   The Commission notes that the inferences were not the only or principal evidence against the applicant, but that the judge relied on a large number of circumstantial factors linking the applicant with the crime, in particular his fingerprint found on the car used in the crime and firearm residue particles on the inside waistband area of his jeans. The Commission considers that, against this evidence, the situation could be said, on a common sense basis, clearly to call for an explanation by the applicant.   55.   The Commission recalls that inferences drawn under Article 3 (Art. 3) were not in issue in the John Murray case. It notes that the purpose of Article 3 (Art. 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-operate 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 pe