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AS TO THE ADMISSIBILITY OF
Application No. 18731/91
by John MURRAY
against the United Kingdom
The European Commission of Human Rights sitting in private
on
18 January 1994, the following members being present:
MM. C.A. NØRGAARD, President
S. TRECHSEL
F. ERMACORA
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G.H. THUNE
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.C. GEUS
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the
Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 16 August
1991 by
John Murray against the United Kingdom and registered on 27
August 1991
under file No. 18731/91;
Having regard to:
- reports provided for in Rule 47 of the Rules of Procedure
of the
Commission;
- the observations submitted by the respondent Government on
25
February 1993 and the observations in reply submitted by the
applicant on 7 June 1993;
- the observations submitted by the parties at the oral
hearing on
18 January 1994;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is an Irish citizen, born in 1950 and
presently
detained in HM Prison The Maze, Belfast. He is represented
before the
Commission by Messrs. Madden and Finucane, Solicitors,
Belfast.
The facts as submitted by the parties may be summarised as
follows.
The applicant was arrested by police officers at 5.40 pm on
7 January 1990 pursuant to section 14 of the Prevention of
Terrorism
(Temporary Provisions) Act 1989. The applicant was cautioned
by the
police according to the terms of Article 3 of the Criminal
Evidence
(Northern Ireland) Order 1988 (hereafter referred to as the
Order), the
relevant part of which provides as follows:
"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."
In response to the police caution the applicant stated,
"I have
nothing to say."
The applicant was taken to Castlereagh Police Office at
about
7.00 pm. He refused to give his personal details to the
officer opening
the custody record. At 7.05 pm, he was informed of his right
to have
a friend or relative notified of his detention but indicated
that he
did not require that anyone be so notified. At 7.06 pm, the
applicant
indicated that he wished to consult with a solicitor named
Mr. Francis
Keenan. At 7.30 pm, the applicant's access to a solicitor
was delayed
on the authority of a Detective Superintendent pursuant to
section
15(1) of the Northern Ireland (Emergency Provisions) Act
1987. The
delay was authorised for a period of 48 hours from the time
of
detention on the basis that the detective Superintendent had
reasonable
grounds to believe that the exercise of the right of access
"..<would> lead to interference with the
gathering of information
about the commission, preparation or instigation of acts of
terrorism; or by alerting any person <would> 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."
At 9.27 pm, a police officer saw the applicant in a cell at
Castlereagh Police Office. He further cautioned the
applicant pursuant
to Article 6 of the Order, the relevant part of which
provides as
follows:
"Inferences from failure or refusal to account for
presence at
a particular place
6. (1) Where
(a) a person arrested by a constable was found by him at a
place
or about the time the offence for which he was arrested is
alleged to have been committed, and
(b) the constable reasonably believes that the presence of
the
person at that place and at that time may be attributable to
his
participation in the commission of the offence, and
(c) the constable informs the person that he so believes,
and
requests him to account for that presence, and
(d) the person fails or refuses to do so,
then if, in any proceedings against the person for the
offence,
evidence of those matters is given, 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, and
(b) the court or jury, in determining whether the accused is
guilty of the offence charged, may
(i) draw such inferences from the failure or refusal as
appear proper;
(ii) on the basis of such inferences, treat the failure or
refusal as, or as capable of amounting to, corroboration of
any evidence given against the accused in relation to which
the failure or refusal is material.
(3) Paragraphs (1) and (2) do not apply unless the accused
was
told in ordinary language by the constable when making the
request mentioned in paragraph (1)(c) what the effect of
this
Article would be if he failed or refused to do so.
(4) This Article does not preclude the drawing of any
inference
from the failure or refusal of a person to account for his
presence at a place which could properly be drawn apart from
this
Article."
The police officer served the applicant with a written copy
of
Article 6 of the Order. The applicant replied, "Nothing
to say."
At 10.40 pm, the applicant requested consultation with a
different firm of solicitors, Madden and Finucane. The
reasons for the
delay in access to a solicitor were reviewed but it was
concluded that
they remained valid reasons.
On 8 and 9 January 1990, the applicant was interviewed
twelve
times by police detectives at Castlereagh Police Office.
Before each
interview the applicant was either cautioned under Article 3
of the
Order or reminded that he was under caution. The applicant
maintained
silence throughout these interviews.
When he was able to see his solicitor for the first time at
6.33
pm on 9 January 1990, he was advised to remain silent, which
he did
during the following two interviews. His solicitor was not
permitted
to be present during these interviews.
The applicant was tried by a single judge, the Lord Chief
Justice
of Northern Ireland, sitting without a jury, on 8 May 1991,
for several
offences including that of conspiracy to murder, aiding and
abetting,
with seven other people, the false imprisonment of a certain
Mr. L. and
of belonging to a proscribed organisation ie the Provisional
Irish
Republican Army.
The Crown case was that for some time prior to January 1990
Mr. L. had been a member of the Provisional I.R.A. and had
also been
giving information about the activities of the Provisional
I.R.A. to
the Royal Ulster Constabulary. The Provisional I.R.A.
discovered that
Mr. L. was an informer and tricked him into going to a
house, 124
Carrigart Avenue, in the Lenadoon district of Belfast, on
the evening
of Friday 5 January 1990. Once he was in that house, he was
falsely
imprisoned on the orders of the Provisional I.R.A. and was
kept captive
in one of the rear bedrooms of that house until the arrival
of the
police and the army at the house on the afternoon of Sunday
7 January
1990. In addition to the false imprisonment of Mr. L., the
Crown also
made the case that there was a conspiracy to murder him as
punishment
for being a police informer. The applicant was one of the
people in
the house when the police entered on 7 January and rescued
Mr. L.. At
no time did the applicant give any explanation for his
presence in that
house.
At the close of the prosecution case, the judge, acting in
accordance with Article 4 of the Order, called upon each of
the eight
accused to give evidence in their own defence. The relevant
part of
Article 4 of the Order provides as follows:
"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."
Acting on the advice of his solicitor and counsel, the
applicant
chose not to give any evidence. No witnesses were called on
the
applicant's behalf. Counsel on his behalf, with some support
from the
evidence of a co-accused, submitted, inter alia, that the
applicant's
presence in the house just before the police arrived was
recent and
innocent.
In finding the applicant guilty of the sole offence of
aiding and
abetting the false imprisonment of L., the judge held as
follows:
"I now turn to consider the fifth count charging the
false
imprisonment of L. against the accused <the
applicant>. For the
reasons which I have already stated, I am satisfied that, as
L.
described in his evidence, <the applicant> was at the
top of the
stairs pulling the tape out of the cassette after the police
arrived outside the house.
I am also satisfied, for the reasons which I have already
stated,
that <the applicant> was in the house for longer than
the short
period described by D.M.. I am further satisfied that it is
an
irresistible inference that while he was in the house
<the
applicant> was in contact with the men holding L. captive
and
that he knew that L. was being held a captive. I also draw
very
strong inferences against <the applicant> under
Article 6 of the
1988 Order by reason of his failure to give an account of
his
presence in 124 when cautioned by the police on the evening
of
7 January 1990 under Article 6, and I also draw very strong
inferences against <the applicant> under Article 4 of
the 1988
Order by reason of his refusal to give evidence in his own
defence when called upon by the Court to do so.
Therefore I find <the applicant> guilty of aiding and
abetting
the false imprisonment of L. because, knowing he was being
held
captive in the house, he was present in the house concurring
in
L. being falsely imprisoned. As Vaughan J. stated in R. v.
Young
8C and P 644 at 653, 173 ER 655 at 659 cited with approval
by
Cave J. in R. v. Coney (1882) 8 QBD 534 at 541, <the
applicant>
was 'near enough to give <his> aid and to give
<his> countenance
and assistance.'"
The applicant was sentenced to eight years' imprisonment.
The applicant appealed against conviction and sentence to
the
Court of Appeal in Northern Ireland on the ground, inter
alia, that the
judge had erred in holding that the words of the Article 6
caution
conformed with the requirement that an accused be told in
ordinary
language what the effect would be if he failed or refused to
account
for his presence at the scene of a crime.
In its judgment of 7 July 1992, the Court dismissed the
applicant's appeal. It held, inter alia:
"We consider that there was a formidable case against
<the
applicant>. He was the only one of the accused whom
<L.> observed
and identified as playing a positive part in the activities
touching his captivity. <L.>'s evidence therefore
called for an
answer. No answer was forthcoming of any kind to the police
or
throughout the length of his trial. It was inevitable that
the
judge would draw "very strong inferences" against
him."
COMPLAINTS
The applicant complains that he is the victim of a violation
of
Article 6 paras. 1 and 2 and Article 14 of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 16 August 1991 and
registered
on 27 August 1991.
On 10 September 1992, the Commission decided to communicate
the
application to the Government and to ask for written
observations on
the admissibility and merits of the application.
The Government's observations were submitted on 25 February
1993
after two extensions in the time-limit fixed for this
purpose and the
applicant's observations in reply were submitted on 7 June
1993 after
one extension in the time-limit.
On 8 April 1993, the Commission decided to grant legal aid
to
the applicant.
On 30 August 1993, the Commission decided to invite the
parties
to an oral hearing.
At the hearing, which took place on 18 January 1994, the
parties
were represented as follows:
For the Government
Mr. H. Llewellyn Agent
Mr. P. Coghlin Q.C. Counsel
Mr. J. Eadie Counsel
Three advisers were also present.
For the applicant
Mr. S. Treacy Counsel
Mr. K. Winters Solicitor, Madden and Finucane
Ms. K. Quinlivan Adviser
Mr. L. McStay Adviser
THE LAW
The applicant complains that he was deprived of the right of
silence in the criminal proceedings brought against him as a
result of
the operation of the provisions of the Criminal Evidence
(Northern
Ireland) Order 1988 which permitted a judge, sitting without
a jury,
to draw inferences from his failure to answer police
questions and from
his failure to give evidence in his own defence during the
trial. He
further complains that he was deprived of access to his
solicitor in
the first 48 hours of his detention and that his solicitor
was not
permitted to be present during interviews which took place
after that
initial period. The latter was in conformity with the
practice in
Northern Ireland, which differs from that in England and
Wales. The
applicant invokes Article 6 paras. 1 and 2 and Article 14
(Art. 6-1, 6-2, 14) of the Convention, which provide as
relevant:
Article 6 para. 1 (Art. 6-1):
"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..."
Article 6 para. 2 (Art. 6-2):
"Everyone charged with a criminal offence shall be
presumed
innocent until proved guilty according to law."
Article 14 (Art. 14):
"The enjoyment of the rights and freedoms set forth in
this
Convention shall be secured without discrimination on any
ground
such as sex, race, colour, language, religion, political or
other
opinion, national or social origin, association with a
national
minority, property, birth or other status."
The Government submit that the provisions of the 1988 Order
did
not operate to deprive the applicant either of a fair
hearing contrary
to Article 6 para. 1 (Art. 6-1) or of the presumption of
innocence
contrary Article 6 para. 2 (Art. 6-2). They refer to the
safeguards
provided in the Order: no inference may be drawn unless the
suspect/accused has been warned in advance of the possible
effect;
before any inference is drawn, the prosecution must have
established
a prima facie case against the accused; the judge has a
discretion
whether to draw an inference and is limited to drawing only
such
inferences as may be proper. The Order merely allows the
trier of fact
to draw such inferences as common sense dictates. In the
present case,
there was a formidable case against the applicant which
called for
evidence from the applicant if there was an innocent
explanation for
his conduct. The burden of proof remained throughout on the
prosecution.
As regards the denial of access by the applicant to his
solicitor
for 48 hours, the Government contend that this delay did not
disadvantage the applicant in the conduct of his defence and
therefore
discloses no violation of Article 6 (Art. 6) of the
Convention. Since
the police have similar powers to delay access in England
and Wales,
they submit that there is no discrimination in this respect
within the
meaning of Article 14 (Art. 14) of the Convention.
As regards the refusal of permission to the applicant's
solicitor
to be present during his interviews with the police, the
Government
state that this too did not affect the conduct of the
applicant's
defence and disclosed no violation of Article 6 (Art. 6) of
the
Convention. The difference in this respect between the
position in
England and Wales and that in Northern Ireland, based as it
was solely
on the geographical location at which a person was arrested
and
detained, did not amount to discriminatory treatment within
the meaning
of Article 14 (Art. 14) of the Convention.
The applicant submits that the 1988 Order, which permits
inferences to be drawn from the failure of an accused to
answer police
questions or to give evidence, and the reliance placed upon
it by the
trial judge in the instant case, violate Article 6 para. 1
(Art. 6-1)
of the Convention. The very strong inferences drawn by the
trial judge
in the applicant's case played a crucial role in his
conviction. It is
submitted that it is a generally recognised principle of
international
law that an accused person cannot be required to incriminate
himself,
that Article 6 (Art. 6) of the Convention enshrines this
principle, and
that the drawing of an incriminating inference from an
accused's
failure to give evidence infringes his right to a fair
trial.
The applicant also submits that the drawing of an
incriminating
inference from the failure of an accused person to give
evidence has
the effect of placing the burden of proof on an accused and
is
manifestly inconsistent with the presumption of innocence
guaranteed
in Article 6 para. 2 (Art. 6-2) of the Convention. Further,
the denial
of access by the applicant to his solicitor for 48 hours and
the
discriminatory practice of not permitting solicitors to be
present at
any stage while a person arrested under prevention of
terrorism
provisions is being interviewed, violates Article 6 (Art. 6)
either
alone or read in conjunction with Article 14 (Art. 6+14) of
the
Convention. The discriminatory element derives, inter alia,
from the
fact that in England and Wales, contrary to the practice in
Northern
Ireland, all detained persons, including those detained
under
prevention of terrorism legislation, are permitted to have
their legal
representative present during the police interviews.
The Commission has taken cognizance of the submissions of
the
parties. It considers that the applicant's complaints raise
serious
issues of fact and law under the Convention, the
determination of which
should depend on an examination of the merits. It follows
that the
application cannot be dismissed as manifestly ill-founded.
No other
ground for declaring it inadmissible has been established.
For these reasons, the Commission by a majority
DECLARES THE APPLICATION ADMISSIBLE, without prejudging the
merits.
Secretary to the Commission President of the Commission
(H.C. KRUGER) (C.A. NØRGAARD)
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