Delayed access to lawyer infringed fair trial

The ECHR held, by 12 votes to seven, that the applicant's lack of access to a lawyer during the first 48 hours of his police detention violated his right to a fair hearing under article 6(1) taken with article 6(3)(c) of the European Convention on Human Rights. The ECHR also held, by 14 votes to five, that the drawing of adverse inferences from the applicant's silence during police interrogation and at trial did not violate article 6(1) and (2).

The applicant was arrested in a house in which a Provisional Irish Republican Army informer, Mr L, had been held captive. At the police station the applicant's access to a solicitor was delayed for 48 hours, pursuant to the Northern Ireland (Emergency Provisions) Act 1987. The applicant was cautioned by the police under the Criminal Evidence (Northern Ireland) Order 1988 (SI no 1987(NI 20)) that adverse inferences might be drawn if he failed to answer questions at the pre-trial stage. The applicant was interviewed 12 times and cautioned. He remained silent.

At the applicant's trial Mr L gave evidence that he had been forced to make a taped confession and that after the arrival of the police he saw the applicant at the top of the stairs. The applicant was pulling a tape out of a cassette. The Lord Chief Justice of Northern Ireland, sitting without a jury, discounted evidence that the applicant had recently arrived at the house as not being credible.

The Lord Chief Justice drew adverse inferences from the fact that the applicant failed to offer an explanation for his presence at the house and had remained silent during the trial. The applicant was sentenced to eight years imprisonment for aiding and abetting the false imprisonment of Mr L.

The ECHR said that the right to remain silent under police questioning and the privilege against self-incrimination were generally recognised international standards which lay at the heart of the notion of fair procedure under article 6. Whether the drawing of adverse inferences from an accused's silence infringed article 6 was a matter to be determined in the light of all the circumstances of the case, having particular regard to the situations where inferences might be drawn, the weight attached to them by the national courts in their assessment of the evidence and the degree of compulsion inherent in the situation.

The applicant's insistence in maintaining silence did not amount to a criminal offence or contempt of court. As had been stressed in national court decisions, silence, in itself, could not be regarded as an indication of guilt.

Turning to the role played by the inferences, these were proceedings without a jury. The drawing of inferences was subject to an important series of safeguards. Appropriate warnings must have been given to the accused as to the legal effects of maintaining silence. Moreover the prosecutor must first establish a prima facie case against the accused.

It was only if the evidence against the accused "called" for an explanation which the accused ought to be in a position to give, that a failure to give any explanation "may as a matter of common sense allow the drawing of an inference that there is no explanation and that the accused is guilty".

Having regard to the weight of the evidence against the applicant, the drawing of inferences from his refusal to provide an explanation for his presence in the house was a matter of common sense and could not be regarded as unfair or unreasonable in the circumstances. There was no violation of article 6(1) and (2).

Turning to access to a lawyer, at the beginning of police interrogation the accused was confronted with a fundamental dilemma. If he chose to remain silent, adverse inferences might be drawn agaisnt him. If he opted to break his silence, he ran the risk of prejudicing his defence without necessarily removing the possibility of inferences being drawn against him.

Under such conditions the concept of fairness enshrined in article 6 required that the accused had the benefit of the assistance of a lawyer. To deny access to a lawyer for the first 48 hours of police questioning, where the rights of the defence might well be irretrievably prejudiced, was incompatible with the rights of the accused under article 6. There was therefore a breach of article 6(1) taken with article 6(3)(c).

Ying Hui Tan, Barrister