Murray v. the United Kingdom



AS TO THE ADMISSIBILITY OF

Application No. 22384/93

by Kevin MURRAY

against the United Kingdom

The European Commission of Human Rights sitting in private on

21 October 1996, the following members being present:

Mr. S. TRECHSEL, President

Mrs. G.H. THUNE

Mrs. J. LIDDY

MM. E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

L. LOUCAIDES

M.P. PELLONPÄÄ

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

D. SVÁBY

G. RESS

A. PERENIC

C. BÎRSAN

P. LORENZEN

K. HERNDL

E. BIELIUNAS

E.A. ALKEMA

M. VILA AMIGÓ

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 27 April 1993 by

Kevin MURRAY against the United Kingdom and registered on 15 July 1993

under file No. 22384/93;

Having regard to :

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the observations submitted by the respondent Government on

2 March 1994;

- the letter of 10 April 1996 from the applicant's representative

stating that no further observations were to be submitted.

- the supplementary observations submitted by the respondent

Government on 10 May 1996.

Having deliberated;

Decides as follows:

THE FACTS

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 & Company, a firm of solicitors practising in

Strabane, County Tyrone.

a. The particular circumstances of the case

The facts as submitted by the parties, and which may be deduced

from documents lodged with the application, may be summarised as

follows.

On 13 March 1989, at 07.30, 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.

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.

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..

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.

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.

The applicant saw his solicitor on 15 March 1989 at 11.26 hours.

He was advised to remain silent.

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.

On 23 March 1989, the applicant's application to be released on

bail was refused by the judge on the grounds of the serious nature of

the charges and the serious risk of the applicant not turning up for

trial.

On 28 March 1990, the applicant was committed for trial. The bill

of indictment was received at the Crown Court office on 2 May 1990. He

was arraigned on 13 June 1990 and because of the serious nature of the

charges his case was scheduled for hearing before a High Court judge.

The applicant's case was initially listed for hearing on

20 November 1990 but was postponed twice because the preceding trial

overran.

The applicant was tried before a judge sitting without a jury

from 26 to 28 November 1990.

At his trial, the applicant, on the advice of his legal advisers,

did not give evidence.

The prosecution case was founded on circumstantial evidence of

a forensic nature linking the applicant with the Vauxhall car allegedly

used by the gunmen. It 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 1.30 am 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 3 a.m.;

(f) evidence from L. L. that he had seen the applicant driving with

his brother E. L. some time at the start 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) 3 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) 5 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 the 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, 2 days before the shooting of

the UDR soldier;

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.

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 1.30 am

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 1.30 am 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 3 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."

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 under Article 5,

declining to make any adverse inferences on the basis that the

applicant had given some explanations to the police prior to arrest.

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."

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...".

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.

The applicant was granted leave to appeal to the House of Lords.

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

Provisions governing inferences which may be drawn from an

accused's silence

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."

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."

Provisions governing access to a solicitor

Section 15 of the Northern Ireland (Emergency Provisions) Act

1987 provides as relevant:

"15. Right of access to legal advice

(1) A person who is detained under the terrorism provisions and

is being held in police custody shall be entitled, if he so

requests, to consult a solicitor privately...

(4) If a person makes such a request, he must be permitted to

consult a solicitor as soon as is practicable except to the

extent that any delay is permitted by this section...

(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 (sub-section (5)(a)), and the detained person

must be told the reason for the delay (subsection (7)). The maximum

delay is 48 hours.

COMPLAINTS

The applicant complains that adverse inferences drawn from his

refusal to give evidence in his defence under Article 4 of the 1988

Criminal Evidence Order violated his right to a fair trial, as

guaranteed by Article 6 para. 1 of the Convention, and deprived him of

his right to be presumed innocent, contrary to Article 6 para. 2 of the

Convention.

The applicant further complains that the application of Article 3

of the 1988 Criminal Evidence Order also abrogated his right to remain

silent and violated Article 6 para. 3(b) of the Convention.

Further, the applicant contends that the refusal to allow him

access to a solicitor was in breach of Article 5 para. 3 of the

Convention.

Finally, he invokes Articles 13 and 14 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 27 April 1993 and registered

on 15 July 1993.

On 11 October 1993, the Commission decided to communicate the

application to the Government and to ask for written observations on

the admissibility and merits of the case.

The Government's observations were submitted on 2 March 1994,

after two extensions in the time-limit fixed for this purpose. The

applicant was invited to submit written observations in reply by

28 April 1994. None were produced.

On 10 October 1994 the Commission decided to declare part the

application inadmissible and to adjourn further consideration of the

application pending the outcome of the case of John Murray v. the

United Kingdom (No. 18731/91) before the European Court of Human

Rights.

On 2 March 1996, following the judgment of the European Court of

Human Rights of 8 February 1996 in the case of John Murray v. United

Kingdom (to be published in 1996 Reports), the Commission decided to

invite the parties to submit any additional observations which they

might consider appropriate as to the relevance of that Court judgment

to the facts of the application.

By letter of 10 April 1996, the applicant's representative stated

that no further observations were to be submitted. On 10 May 1996, the

respondent Government submitted their supplementary observations.

THE LAW

1 The applicant complains that he was deprived of the right to

silence and the presumption of innocence in the criminal proceedings

brought against him as a result of the operation of the provisions of

the 1988 Criminal Evidence Order, 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 which the

Commission will consider under Article 6 para. 3(c) (Art. 6-3-c) tion.

The applicant invokes Article 6 paras. 1, 2 and 3 (b)

(Art. 6-1, 6-2, 6-3-b) of the Convention. These provisions provide so

far as relevant:

Article 6 para. 1 (Art. 6-1) of the Convention:

"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) of the Convention:

"Everyone charged with a criminal offence shall be presumed

innocent until proved guilty according to law."

Article 6 para. 3 (Art. 6-3) of the Convention:

"Everyone charged with a criminal offence has the following

minimum rights:

...

b. to have adequate time and facilities for the

preparation of his defence;

c. to defend himself or 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."

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, or of the presumption of innocence contrary to Article

6 para. 2 (Art. 6-2). 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.

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.

The Government further submit that the matters that led the

European Court of Human Rights to conclude in the case of John Murray

v. United Kingdom (to be published), that the degree of compulsion (as

regards the giving of evidence) 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.

The Government submit that the reasoning of the Court in

John Murray v. United Kingdom (see above) clearly applies to the

inferences drawn under Article 4: that the right to silence is not

absolute in the sense identified by the Court in John Murray v. United

Kingdom (to be published); that all the factors relied upon by the

Court in relation to the degree of compulsion and the situations where

inferences may be drawn apply in the applicant's case; 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 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.

As to the inferences drawn under Article 3, the Government submit

that a prima facie case based on forensic evidence was clearly made

out. They further submit that all the safeguards referred to by the

Court in John Murray in respect of inferences drawn under Article 4

(referred to above) were available to ensure that inferences were not

unfairly or unreasonably drawn in this case under Article 3. As to the

denial of access to a solicitor while the applicant was interviewed by

the police, the Government submit that the reasoning of para. 56 of the

Court's judgment in John Murray v. United Kingdom (see above) applies,

that is, that since there is no indication that the applicant failed

to understand the warnings made on arrest and did not speak either

before or after seeing a solicitor, the refusal of a solicitor did not

detract from the conclusion that the drawing of inferences was not

unfair or unreasonable in the circumstances.

As regards the applicant's complaint in respect of his denial of

access to a solicitor for 48 hours, the Government do not contest the

admissibility of this complaint.

The applicant has made no further submissions in addition to his

original application. He also invokes Articles 13 and 14 (Art. 13, 14)

of the Convention in respect of the matters raised in the context of

Article 6 (Art. 6).

The Commission considers, in the light of the parties'

submissions, that the above complaints raise complex issues of law and

fact under the Convention, the determination of which should depend on

an examination of the merits of the application as a whole. The

Commission concludes, therefore, that these complaints are not

manifestly ill-founded, within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention. No other grounds for declaring them

inadmissible have been established.

For these reasons, the Commission, unanimously,

DECLARES THE REMAINDER OF THE APPLICATION ADMISSIBLE, without

prejudging the merits.

H.C. KRÜGER S. TRECHSEL

Secretary President

to the Commission of the Commission