THIRD SECTION
CASE OF
MAGEE
v. THE
UNITED KINGDOM
(Application no.
28135/95)
JUDGMENT
STRASBOURG
6 June 2000
This judgment will become final in the circumstances set out
in Article 44 § 2 of the Convention. It is subject to editorial revision before
its reproduction in final form in the official reports of selected judgments and
decisions of the Court.
In the case of Magee v. the
United Kingdom
,
The European Court of Human Rights (Third Section), sitting
as a Chamber composed of:
Mr
J.-P. Costa,
President,
Mr
W. Fuhrmann,
Mr
L. Loucaides,
Mr
P. Kūris,
Sir
Nicolas
Bratza,
Mrs H.S.
Greve,
Mr
K. Traja,
judges,
and Mrs S. Dollé,
Section Registrar,
Having deliberated in private on
14 September 1999 and
16 May 2000 ,
Delivers the following judgment, which was adopted on that
last-mentioned date:
PROCEDURE
1. The
case originated in an application (no. 28135/95) against the United Kingdom of
Great Britain and Northern Ireland lodged with the European Commission of Human
Rights (“the Commission”) under former Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an
Irish citizen, Mr Gerard Magee (“the applicant”), on
22 May 1992 .
2. The
applicant, who was granted legal aid, was represented by Madden & Finucane, a
firm of solicitors practising in
Belfast
. The Government of the
United Kingdom
(“the Government”) were represented by their Agent, Mr C.
Whomersley, of the Foreign and Commonwealth Office,
London
.
3. The
applicant alleged, inter alia, that
he was ill-treated while in detention and that he was denied a fair trial.
4. The
application was transmitted to the Court on
1 November 1998 , when
Protocol No. 11 to the Convention came into force (Article 5 § 2 of Protocol
No. 11).
5. The
application was allocated to the Third Section of the Court (Rule 52 § 1 of the
Rules of Court).
6. By
a decision of
14 September 1999 , the
Chamber declared the application partly admissible.
7. The
applicant and the Government each filed observations on the merits
(Rule 59 § 1). The Chamber having decided, after consulting the parties, that no
hearing on the merits was required (Rule 59 § 2
in fine), the parties replied in
writing to each other's observations.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
8. On
16 December 1988 , early
in the morning, the applicant was arrested at his home under section 12 of the
Prevention of Terrorism Act 1984 (“the 1984 Act”) in connection with an
attempted bomb attack on military personnel. The applicant was taken to
Castlereagh police station. He claims that on arrival he immediately requested
to see his solicitor. Access was delayed pursuant to section 15 of the
Northern Ireland
(Emergency Provisions) Act 1987 (“the 1987 Act”). At
9.15 a.m. the applicant
was examined by a doctor who advised him that if he had any complaints to make
he should tell the doctor when he made his round the following morning. The
applicant was cautioned pursuant to Article 3 of the Criminal Evidence (
Northern Ireland
) Order 1988 (“the 1988 Order”). Unfamiliar with this new
law, the applicant again requested a consultation with a lawyer and this request
was refused.
9. On
the same day the applicant was interviewed five times by two teams of two
detectives. These interviews took place between 10.55 a.m. and 1 p.m., 2 p.m.
and 4 p.m., 4 p.m. and 6 p.m., 7.35 p.m. and 9.30 p.m., and 9.30 p.m. and 12
midnight.
10. At
8.21 a.m. on
17 December 1988 , the
applicant complained to the same doctor he had seen the day before of
ill-treatment during the second and third interviews on the previous day. The
doctor recorded in his notes that the applicant had alleged that he had been
repeatedly slapped and occasionally punched in the back of the head during the
second and third interviews and that he had been punched a few times in the
stomach. The doctor gave the applicant two tablets (a mild analgesic) and
prescribed four such tablets a day if required. Pursuant to this complaint, at
9.15 a.m. a police
inspector visited the applicant's cell and took note of the applicant's
complaints.
11. Subsequently,
the applicant's sixth, seventh and eighth interviews took place between 9.30
a.m. and 1 p.m., 2 p.m. and 4.20 p.m., and 7.30 p.m. and 12 midnight. During the
sixth interview the applicant broke his silence and gave detailed answers to a
number of questions admitting to his involvement in the assembly and planting of
the bomb. During the seventh interview the applicant signed a lengthy statement
which described in considerable detail his part in the conspiracy to plant and
detonate the bomb.
12. At
8.28 a.m. on
18 December 1988 , the
applicant was visited by the same doctor who asked the applicant if he had any
further allegations of ill-treatment and the applicant replied that he had not.
The applicant was then interviewed about another matter between
10 a.m. and
12.45 p.m. At
1 p.m. the applicant was
allowed to consult with his solicitor, who made notes on the applicant's
allegations of ill-treatment. The solicitor chose not to pass these complaints
on to the police. The applicant was then interviewed for the last time between
2 p.m. and
5 p.m. about an
unrelated matter. The applicant was medically examined that evening at
8.20 p.m. by another
doctor whose notes indicated that the applicant had made “no allegations of
ill-treatment since he had been last seen by a doctor”. That doctor also noted
that there was no sign of injuries.
13. On
19 December 1988 the
applicant was taken to another police station where he was given a medical
examination by another doctor. That doctor's note records the applicant's
detailed allegations of assaults and ill-treatment which allegedly took place on
16 December 1988 . No
objective evidence of injury was noted.
14. On
19 December 1988 the
applicant, along with others, was charged at Belfast Magistrates' Court with
conspiracy to cause explosions, possession of explosives with intent, conspiracy
to murder and membership of the Irish Republican Army.
15. On
3 March 1989 the
applicant, through his solicitor, made an official written statement to the
Complaints and Discipline Branch of the Royal Ulster Constabulary complaining
about his ill-treatment by one team of two detectives while at Castlereagh
police station.
16. On
17 September 1990 the
trial of the applicant and his co-accused began at Belfast Crown Court before a
single judge sitting without a jury. The applicant pleaded not guilty. The
prosecution case was based on the admissions made by the applicant in interview
and, in particular, the written statements signed by him.
17. On
3 October 1990, when the prosecution were about to lead evidence based on the
applicant's admissions and statement made during questioning, the applicant
applied under section 8 of the Northern Ireland (Emergency Provisions) Act 1978
(as amended) to have the admissions and statement made during questioning
excluded on the basis of his alleged ill-treatment. A
voir dire (submissions on a point of
law in the absence of the jury) began and the applicant gave evidence as to his
treatment, particularly by one team of two detectives during interviews nos. 2,
4 and 6 while in Castlereagh police station. Electrostatic Document Analysis
(“ESDA”) evidence was also led which the applicant submitted demonstrated
glaring defects in the authentication of the interview notes which recorded his
responses to the detectives' questions. All the relevant witnesses, including
the applicant, the police officers alleged to have been involved in the
ill-treatment and the doctors who had seen the applicant, gave evidence. The
voir dire ended on
23 October 1990 when the
trial judge rejected the application, admitted the applicant's admissions and
statement into evidence and adjourned his detailed judgment in these respects.
18. The
applicant did not subsequently give evidence at the trial. However, the trial
judge cautioned the applicant, pursuant to Article 4 of the 1988 Order, as
regards adverse inferences which could be drawn from this failure to give
evidence.
19. On
21 December 1990 the
trial judge gave judgment.
20. He
first outlined his detailed reasoning behind his decision further to the
voir dire. He noted that the only
evidence against the applicant was the admissions and statement made while in
custody at Castlereagh police station and that there was no forensic evidence
against him. However, it was also noted that the applicant's admissions and
statement were entirely consistent with the evidence presented in relation to
others charged (and later convicted) with offences arising out of the same
incident. The trial judge summarised the applicant's evidence of ill-treatment
and this summary was later accepted on appeal by the applicant as constituting
an accurate account of his evidence in this respect.
21. The
trial judge then commented on that evidence. He noted,
inter alia, that the applicant did
not mention the names of or attempt to describe the two detectives in respect of
whom he complained to the doctor on the morning of 17 December 1988; that the
applicant had not mentioned to the doctor on that morning the “cigarette
treatment”, which the applicant had submitted during the
voir dire was the treatment which
frightened him most; that there were inconsistencies in the accounts of
ill-treatment given by the applicant to the doctor on that morning and his
evidence at trial; that not one single objective sign of the ill-treatment which
the applicant alleged was found by any of the doctors who examined the
applicant; and that on the morning of 18 December 1990, the applicant did not
make any complaint about ill-treatment despite the fact that he claimed he had
suffered the worst treatment of all during the previous day.
22. Although
there had been a period when the monitoring screens (which relayed pictures from
cameras in the interview rooms to a central control room) had not been monitored
by the duty inspector on that Saturday morning, the trial judge found that this
did not coincide with the applicant's evidence as to when he was ill-treated on
that day and the trial judge found it impossible to accept that ill-treatment of
the nature alleged by the applicant could have gone on without it being picked
up by the cameras in the room where the applicant was questioned. On the
question of general credibility the judge found that the applicant had
repeatedly lied to the court, whereas the detectives involved were not at all
shaken by a rigorous cross-examination in their firm denials of the allegations
made by the applicant. As to the ESDA evidence, the trial judge found that it
did not substantiate the applicant's submission as to the lack of authenticity
of the interview notes.
23. Accordingly,
the trial judge rejected the applicant's allegations of ill-treatment and found
that there was no reason to exclude the applicant's admissions or statement made
during his detention in Castlereagh police station. As to the probative value of
the applicant's statement, the trial judge found that it was sufficiently
detailed to establish the several charges against the applicant and that he was
fully entitled to convict the applicant on that basis. On
11 January 1991 the
applicant was sentenced to twenty years' imprisonment.
24. On
8 February 1993 the
applicant's appeal against conviction, challenging the trial judge's conclusions
as to the allegations of ill-treatment and as to the ESDA evidence, was heard by
the Court of Appeal of
Northern Ireland
. That court noted that in such cases the question to be
answered is whether the court is satisfied that it is not a reasonable
possibility that the accused was ill-treated. It noted,
inter alia, that the trial judge had
had the great advantage of seeing the applicant give evidence, that both an
accused and the police officers involved can equally have an incentive to lie
and that many facts are capable of being looked at in two or more ways, but they
must be considered sensibly and realistically. Having reviewed the applicant's
evidence and the trial judge's conclusions in that respect, that court concluded
that it was satisfied that the applicant had not been ill-treated and that his
conviction was neither unsafe nor unsatisfactory. Accordingly, on
16 June 1993 the
applicant's appeal was rejected.
25. On
17 December 1993 the
applicant's appeal against his sentence was rejected.
II. RELEVANT DOMESTIC LAW
A. Provisions governing inferences which may be drawn from
an accused's silence
26. The
relevant parts of Article 3 of the Criminal Evidence (
Northern Ireland
) Order 1988 provide:
“Circumstances in
which inferences may be drawn from the accused's failure to mention particular
facts when questioned, charged, etc.
(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 -
...
(c) the court ... 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.
...”
27. The
relevant parts of Article 4 of the 1988 Order, relating to when an accused is
called upon to give evidence at trial, provide:
“(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.”
B. Provisions governing access to a solicitor
28. The
relevant provisions at the time of the applicant's trial governing the right of
access to legal advice were contained in section 15 of the
Northern Ireland
(Emergency Provisions) Act 1987, of which the relevant parts
provided:
“(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.
(2) A person shall be informed of the right conferred on him
by subsection (1) as soon as practicable after he has become a person to whom
the subsection applies.
(3) A request made by a person under subsection (1), and the
time at which it is made, shall be recorded in writing unless it is made by him
while at a court and being charged with an offence.
(4) If a person makes such a request, he must be permitted
to consult a solicitor as soon as practicable except to the extent that any
delay is permitted by the 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 any 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 ...”
29. The
delay had to be authorised by a police officer of at least the rank of
superintendent (section 15(5)(a)) and the detained person had to be told the
reason for the delay (section 15(9)(a)). The courts in Northern Ireland have
taken the view that the 1988 Order should not be read subject to section 15 of
the 1987 Act, since the 1988 Order had come into force after the 1987 Act, and
Parliament had not intended that an inference which was permitted by Article 3
of the 1988 Order could not be drawn because of the withholding of the right of
access to legal advice given by section 15 of the 1987 Act.
C. Other relevant materials
30. The
European Committee for the Prevention of Torture and Inhuman or Degrading
Treatment or Punishment (“CPT”), following a visit to places of detention in
Northern Ireland in July 1993, made the following conclusions on Castlereagh
Holding Centre in its published report.
“Castlereagh Holding Centre was located in a motley
collection of prefabricated buildings, within the perimeter of Castlereagh
Police Station. The Centre gave the general impression of being in need of some
repair.
39. The Centre had 31 cells, four of which were located in a
distinct section for women detainees. In addition, there were 21 interview
rooms, two rooms for consultations with lawyers, a doctor's surgery, and a
scenes of crime unit (the so-called Soco Suite).
40. The cells measured 6m2 and were equipped with
a metal frame bed (with mattress and blankets) and a chair. Artificial light was
adequate and there was an effective dimmer system, controlled from outside the
cell. However, the cells did not benefit from natural light. Further, the
ventilation system appeared to function only moderately well and created a
rather intrusive level of noise in certain cells. The cells were not fitted with
a call system; however, uniformed officers were apparently always on duty in the
cell block when persons were being detained. Toilet and shower facilities were
located nearby and were in a satisfactory state of cleanliness at the time of
the visit; no complaints were heard from detainees about access to those
facilities.
41. The interview rooms were divided between one set of 13,
located adjacent to the cells, and another set of eight in a separate building.
The interview rooms adjacent to the cells measured 6m2 and were
equipped with a table, three chairs, and two wall-mounted cameras ... Like the
cells, they did not benefit from natural light. The second set of eight
interview rooms were equipped in a similar manner; however, they were
considerably larger and did benefit from natural light.
42. On examining the main cell/interview room block from
outside, it could be seen that the windows had been covered with plyboard, apart
from one section of each, which had been fitted with a cowl, allowing some fresh
air, but no natural light, to enter the cells and rooms. Questioned about the
design of these window coverings, the officer in charge stated that they had
been installed for 'security reasons'.
43. The CPT has already expressed the view that police cells
should preferably enjoy natural light. This is even more desirable when, as at
Castlereagh, persons may be held in custody for an extended period. Further, the
absence of natural light in the cells is all the more regrettable given that the
majority of the interview rooms at Castlereagh also lacked natural light. Taking
into account, in addition, the absence of exercise facilities (cf. paragraph
44), the net result was that a person detained at Castlereagh could effectively
be deprived of natural light for several days or more (the only exception being
time spent in consultation with his lawyer).
In the CPT's view such a situation is not acceptable. The
Committee would add that it is confident that means could be found of providing
access to natural light to detainees without compromising legitimate security
needs.
44. The delegation was told by police officers that there
were no facilities for exercise – either outdoor or indoor – for persons
detained at Castlereagh. This is another serious shortcoming in an establishment
in which persons can be held for up to seven days.
45. To sum up, the existing material conditions of detention
at Castlereagh Holding Centre render it inappropriate as a place in which to
detain persons for extended periods. The deficiencies as regards access to
natural light for detainees and the absence of exercise facilities were the
principal failings, but the mediocre ventilation system and the cramped and
rather dilapidated nature of the facilities should also be mentioned. All these
factors contributed to create a distinctly claustrophobic atmosphere.
The CPT recommends that the conditions of detention at
Castlereagh Holding Centre be substantially improved without delay, taking into
account the above remarks. If such an improvement were not to prove possible,
the Holding Centre should be relocated elsewhere, in premises capable of
offering better detention facilities.
...
109. ... Even in the absence of overt acts of ill-treatment,
there is no doubt that a stay in a holding centre may be – and is perhaps
designed to be – a most disagreeable experience. The material conditions of
detention are poor (especially at Castlereagh) and important qualifications are,
or at least can be, placed upon certain fundamental rights of persons detained
by the police (in particular, the possibilities for contact with the outside
world are severely limited throughout the whole period of detention and various
restrictions can be placed on the right of access to a lawyer). To this must be
added the intensive and potentially prolonged character of the interrogation
process. The cumulative effect of these factors is to place persons detained at
the holding centres under a considerable degree of psychological pressure. The
CPT must state, in this connection, that to impose upon a detainee such a degree
of pressure as to break his will would amount, in its opinion, to inhuman
treatment.”
31. On
10 December 1999 an
official announcement was made that the Holding Centre at Castlereagh was to
close by the end of December 1999.
THE LAW
I. Alleged violation of Article 6 § 1 of the Con-vention
TAKEN in conjunction with Article 6 § 3 (c)
32. The
applicant alleged that he had been denied a fair trial, in breach of Article 6 §
1 of the Convention taken in conjunction with Article 6 § 3 thereof, of which
the relevant provisions state:
“1. In the determination ... of any criminal charge against
him, everyone is entitled to a fair ... hearing ...
...
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;
...”
33. The
applicant complained that under the Criminal Evidence (
Northern Ireland
) Order 1988 (“the 1988 Order”), adverse inferences may be
drawn from an accused's failure to respond to police questioning during
detention. However, an accused is not entitled to have a solicitor present
during interview, notwithstanding the inherent compulsion in the Order to
incriminate oneself. The applicant argued that the implications of the Order for
the rights of the defence can only be properly understood and assessed with the
help of legal advice, especially since a decision to remain silent is one which
has to be revisited throughout the period of detention. In this regard, the
applicant stated that the nature of the questions put to an accused may evolve
in the light of new evidence, thus making it imperative to guarantee him access
to legal advice on a continuous basis.
34. The
applicant asserted that he had been compelled to incriminate himself before he
had received any legal advice and that it was only after the police had obtained
his signed confession statement that he was allowed to consult with his
solicitor. The applicant argued that the Court's John Murray v. the United
Kingdom judgment of 8 February 1996 (Reports
of Judgments and Decisions 1996-I)
was authority for the proposition that he should have had access to his
solicitor at the initial stages of police interrogation to allow him to assess
the weight of the evidence against him and to make an informed choice as to
whether or not to respond to questioning. The applicant stressed that the
disputed confession statement constituted the sole evidence against him at his
trial and the sole basis of his conviction, in contrast to the applicant John
Murray against whom there existed a formidable body of evidence. Had he held his
silence there would have been no case to answer.
35. The
applicant emphasised that due regard had to be given to the oppressive and
appalling environment in which he was held incommunicado and interrogated
intensively for prolonged periods by rotating teams of skilled interrogators in
defiance of his clear indication on the first day of his detention that he
wished to exercise his right to silence.
With reference to,
inter alia, a report dated 19
November 1994 of the European Committee for the Prevention of Torture and
Inhuman or Degrading Treatment or Punishment, the reports of the Independent
Commissioner for Holding Centres published between 1993 and 1996, and the
conclusions and recommendations of the United Nations Committee against Torture
contained in its report of 17 November 1995, the applicant maintained that the
detention regime in Castlereagh police station is intended to be coercive in order to break
the will of the detainee to remain silent and contravenes international human
rights norms. In his submission, there is well-documented and independent
evidence which confirms that a deliberate strategy is pursued to refuse
detainees access to solicitors, in particular during interview, in order to
build up psychological pressure on them to make incriminating statements.
36. The
Government, with reference to the above-mentioned John Murray judgment,
contended that the applicant, unlike Mr Murray, was not faced with the choice
between exercising his right to silence and mentioning facts which might later
be relied on in his defence at his trial. The Government highlighted the fact
that the applicant made a series of admissions during interview and did not
advance at his trial any facts which could have been, but were not, mentioned
when interviewed. No adverse inference was drawn at his trial pursuant to the
1988 Order. Accordingly, it was not open to the applicant to claim that under
the effect of the Article 3 caution, he was trapped in what the Court described
in its John Murray judgment as a “fundamental dilemma” which could only be
resolved on the basis of legal advice. The only choice to be made was whether or
not to tell the truth. The Government averred that there is no requirement under
Article 6 of the Convention to ensure the provision of legal assistance to make
that choice.
37. In
the Government's submission, the real issue was whether the applicant, although
denied access to a solicitor between the morning of
16 December 1988 and the
morning of
17 December 1988 when he
began to confess, received a fair trial. The fact that he was held incommunicado
in a holding centre used specifically for questioning suspected terrorists
cannot advance the applicant's claim to a free-standing right to legal
assistance under Article 6 of the Convention. Even if interviewed intensively,
particularly in the period prior to making his confession statement, the number
of interviews to which he was subjected during this period cannot be considered
to vitiate the fairness of his trial. Quite apart from the consideration that
the applicant began to confess after a nine-and-a-half-hour overnight break
before confessing at interview no. 6 and had been medically examined, the
Government stressed that there had been a full, lengthy and adversarial hearing
on the voir dire in order to
determine whether the applicant's admissions and signed confession should be
ruled inadmissible. The trial judge expressly found on the evidence that the
applicant had lied, that he had been treated fairly and properly throughout the
interview process at Castlereagh police station and that his confession was
accurate, reliable and voluntary.
38. The
Court notes at the outset that it is not required to pronounce on the
compatibility in general of the drawing of adverse inferences under Article 3 of
the 1988 Order with the requirements of a fair hearing contained in Article 6 of
the Convention. As in the above-mentioned John Murray case, the Court will
confine itself to the particular facts of the instant case. It notes in this
respect that the trial judge was not called on to exercise his discretion under
Article 3 of that Order since the applicant admitted to the police during
detention that he had been involved in terrorist offences. It would further
observe that, although the applicant chose not to testify following the hearing
on the voir dire, no inferences were
drawn on that account. Accordingly, the applicant's silence was not an issue
before the domestic courts, despite a cursory warning emitted by the trial judge
regarding the applicant's failure to testify.
39. The
Court accepts that the administration of a caution to an accused pursuant to
Article 3 of the 1988 Order may place the latter in a dilemma at the beginning
of the interrogation. On the one hand, if he chooses to remain silent, adverse
inferences may be drawn against him in accordance with the provisions of the
Order. On the other hand, if the accused opts to break his silence during the
course of the interrogation, he runs the risk of prejudicing his defence without
necessarily removing the possibility of inferences being drawn against him.
Under such conditions the concept of fairness requires that the accused have the
benefit of the assistance of a lawyer already at the initial stages of the
police interrogation (see the John Murray judgment, loc. cit., p. 55, § 66).
Unlike Mr Murray, the applicant did opt to break his silence. No adverse
inferences were drawn from his silence prior to that decision and the Court
cannot speculate as to whether the applicant would have maintained his silence
if he had been permitted to consult his solicitor at any stage prior to the
sixth interview at which he began to confess.
40. The
Court considers that the central issue raised by the applicant's case is his
complaint that he had been prevailed upon in a coercive environment to
incriminate himself without the benefit of legal advice. It will examine the
complaint in that context.
41. The
Court recalls that, even if the primary purpose of
Article 6, as far as criminal matters are concerned, is to ensure a fair trial
by a “tribunal” competent to determine “any criminal charge”, it does not follow
that the Article has no application to pre-trial proceedings. Thus, Article 6 –
especially paragraph 3 – may be relevant before a case is sent for trial if and
so far as the fairness of the trial is likely to be seriously prejudiced by an
initial failure to comply with its provisions (see the Imbrioscia v. Switzerland
judgment of 24 November 1993, Series A no. 275, p. 13, § 36). The manner in
which Article 6 §§ 1 and 3 (c) is to be applied during the preliminary
investigation depends on the special features of the proceedings involved and on
the circumstances of the case. In its John Murray judgment the Court also
observed that, although Article 6 will normally require that the accused be
allowed to benefit from the assistance of a lawyer already at the initial stages
of police interrogation, this right, which is not explicitly set out in the
Convention, may be subject to restriction for good cause. The question, in each
case, is whether the restriction, in the light of the entirety of the
proceedings, has deprived the accused of a fair hearing (see the John Murray
judgment cited above, pp. 54-55, § 63).
42. The
Court notes that the applicant made a specific request to see a solicitor on
arrival at Castlereagh police station. However, the decision was taken to delay
his access to a solicitor and he was questioned from
10.55 a.m. on
16 December 1988 to
12.45 p.m. on
18 December 1988 – more
than forty-eight hours – without access to legal advice. He began to confess to
his involvement in the conspiracy to bomb army personnel at 9.30 a.m. on 17
December 1988. He signed a confession statement at his seventh interview which
began at 1 p.m. on 17 December 1988. The applicant was eventually able to
consult his solicitor at 1 p.m. on 18 December 1988.
43. The
Court observes that prior to his confession the applicant had been interviewed
on five occasions for extended periods punctuated by breaks. He was examined by
a doctor on two occasions including immediately before the critical interview at
which he began to confess. Apart from his contacts with the doctor, the
applicant was kept incommunicado during the breaks between bouts of questioning
conducted by experienced police officers operating in relays. It sees no reason
to doubt the truth of the applicant's submission that he was kept in virtual
solitary confinement throughout this period. The Court has examined the findings
and recommendations of the European Committee for the Prevention of Torture and
Inhuman or Degrading Treatment or Punishment (“CPT”) in respect of the
Castlereagh Holding Centre (see paragraph 30 above). It notes that the criticism
which the CPT levelled against the Centre has been reflected in other public
documents (see paragraph 35 above). The austerity of the conditions of his
detention and his exclusion from outside contact were intended to be
psychologically coercive and conducive to breaking down any resolve he may have
manifested at the beginning of his detention to remain silent. Having regard to
these considerations, the Court is of the opinion that the applicant, as a
matter of procedural fairness, should have been given access to a solicitor at
the initial stages of the interrogation as a counterweight to the intimidating
atmosphere specifically devised to sap his will and make him confess to his
interrogators. Irrespective of the fact that the domestic court drew no adverse
inferences under Article 3 of the 1988 Order, it cannot be denied that the
Article 3 caution administered to the applicant was an element which heightened
his vulnerability to the relentless rounds of interrogation on the first days of
his detention.
44. In
the Court's opinion, to deny access to a lawyer for such a long period and in a
situation where the rights of the defence were irretrievably prejudiced is –
whatever the justification for such denial – incompatible with the rights of the
accused under Article 6 (see, mutatis
mutandis, the John Murray judgment
cited above, p. 55, § 66).
45. It
is true that the domestic court found on the facts that the applicant had not
been ill-treated and that the confession which was obtained from the applicant
had been voluntary. The Court does not dispute that finding. At the same time,
it has to be noted that the applicant was deprived of legal assistance for over
forty-eight hours and the incriminating statements which he made at the end of
the first twenty-fours of his detention became the central platform of the
prosecution's case against him and the basis for his conviction.
46. Having
regard to the above considerations, the Court concludes that there has been a
violation of Article 6 § 1 of the Convention taken in conjunction with Article 6
§ 3 (c) thereof as regards the denial of access to a solicitor.
ii. ALLEGED
violation of Article 14 of the Convention TAKEN in conjunction with Article 6
47. The
applicant complained that he was discriminated against on grounds of national
origin and/or association with a national minority. The relevant parts of
Article 14 of the Convention provide:
“The enjoyment of the rights and freedoms set forth in [the]
Convention shall be secured without discrimination on any ground such as ...
national ... origin, association with a national minority, ... or other status.”
48. The
applicant submitted that suspects arrested and detained in England and Wales
under prevention of terrorism legislation can have access to a lawyer
immediately and are entitled to his presence during interview. In addition, in
England and Wales, at the relevant time, incriminating inferences could not be
drawn from an arrested person's silence during the interview in
contradistinction to the position under the 1988 Order in Northern Ireland.
49. The
Government pointed out that, contrary to the applicant's contention, the
prevention of terrorism legislation in both jurisdictions at the material time
allowed access to a solicitor to be delayed for up to forty-eight hours on
limited grounds. Furthermore, a solicitor was not permitted to be present at the
interview in England and Wales during the period in relation to which access was
delayed. Since the applicant's complaint related to that particular period, it
had to be concluded that the position and practice were the same in England and
Wales as in Northern Ireland at the relevant time. In any event, the differences
relied on by the applicant were based on geographical location and not on any
personal characteristic or status.
50. The
Court recalls that Article 14 of the Convention protects against a
discriminatory difference in treatment of persons in analogous positions in the
exercise of the rights and freedoms recognised by the Convention and its
Protocols. It observes in this connection that in the constituent parts of the
United Kingdom there is not always a uniform approach to legislation in
particular areas. Whether or not an individual can assert a right derived from
legislation may accordingly depend on the geographical reach of the legislation
at issue and the individual's location at the time. For the Court, in so far as
there exists a difference in treatment of detained suspects under the 1988 Order
and the legislation of England and Wales on the matters referred to by the
applicant, that difference is not to be explained in terms of personal
characteristics, such as national origin or association with a national
minority, but on the geographical location where the individual is arrested and
detained. This permits legislation to take account of regional differences and
characteristics of an objective and reasonable nature. In the present case, such
a difference does not amount to discriminatory treatment within the meaning of
Article 14 of the Convention.
51. For
the above reasons the Court concludes that there has been no violation of
Article 14 of the Convention taken in conjunction with
Article 6.
iii. APPLICATION OF ARTICLE 41 OF THE CONVENTION
52. Article
41 of the Convention provides:
“If the Court finds that there has been a violation of the
Convention or the Protocols thereto, and if the internal law of the High
Contracting Party concerned allows only partial reparation to be made, the Court
shall, if necessary, afford just satisfaction to the injured party.”
A. Damage
53. The
applicant claimed compensation for his substantial loss of liberty and
imprisonment, including loss of income during his detention, and for the
suffering and distress inherent in his wrongful conviction in breach of Article
6 of the Convention.
54. The
Government submitted that, if the Court were to find a violation of the
Convention, that conclusion would in itself constitute sufficient just
satisfaction.
55. The
Court cannot speculate on whether the outcome of the applicant's trial would
have been different had he obtained access to a solicitor at the beginning of
his interrogation. It agrees with the Government that a finding of a violation
of the Convention, in itself, constitutes sufficient just satisfaction for the
purposes of Article 41.
B. Costs and expenses
56. The
applicant claimed 52,426 pounds sterling (GBP) exclusive of value-added tax
(VAT) by way of costs and expenses. This sum was made up of the fees charged by
the two counsel who worked on the case (GBP 25,000) and by the applicant's
solicitors (GBP 27,426).
57. The
Government stated that the sum claimed was grossly excessive and at variance
with the straightforward nature of the application. In their submission, the
number of hours charged by the applicant's solicitors was unreasonable and their
claim for “care and conduct” of the case inflated. They further point to the
fact that the applicant's counsel did not provide any details of the time spent
on the case nor of their hourly rate. The Government proposed that an overall
sum of GBP 5,000 would represent a reasonable award in the circumstances, also
bearing in mind that the Court declared the majority of the applicant's
complaints inadmissible.
58. The
Court, deciding on an equitable basis and having regard to the fact that its
finding of a violation on the applicant's complaints is confined to his
complaint concerning denial of access to a solicitor, awards the applicant the
sum of GBP 10,000, plus any VAT that may be chargeable, and minus the amount of
legal aid received from the Council of Europe.
C. Default interest
59. According
to the information available to the Court, the statutory rate of interest
applicable in the United Kingdom at the date of adoption of the present judgment
is 7.5% per annum.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1.
Holds that there has been a violation
of Article 6 § 1 of the Convention taken in conjunction with Article 6 § 3 (c);
2.
Holds that there has been no
violation of Article 14 of the Convention taken in conjunction with Article 6;
3.
Holds that the finding of a violation
of Article 6 § 1 of the Convention taken in conjunction with Article 6 § 3 (c)
constitutes in itself sufficient just satisfaction for any damage sustained by
the applicant;
4.
Holds
(a) that the
respondent State is to pay the applicant, within three months from the date on
which the judgment becomes final according to Article 44 § 2 of the Convention,
for costs and expenses, GBP 10,000 (ten thousand pounds sterling), plus any
value-added tax that may be chargeable and minus the sum of FRF 4,100 (four
thousand one hundred French francs) received from the Council of Europe by way
of legal aid;
(b) that simple
interest at an annual rate of 7.5% shall be payable from the expiry of the
above-mentioned three months until settlement;
5.
Dismisses the remainder of the
applicant's claim for just satisfaction.
Done in English, and notified in writing on 6 June 2000,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
S. Dollé
J.-P. Costa
Registrar
President
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