O'KANE v. THE UNITED KINGDOM
Inadmissible
Nicolas Bratza
The applicant is an Irish citizen born in 1969 and currently detained in HM Prison Maze, Northern Ireland. He is represented before the Court by Mr P. McGuckin, solicitor, Mr J. McCrudden QC and Mr S. McNeill, counsel, all practising in Northern Ireland. A. At 6.55 a.m. on 21 June 1993 the applicant was arrested at his home pursuant to section 14(1)(b) of the Prevention of Terrorism (Temporary Provisions) Act 1989 (“the 1989 Act”). He was then taken to Castlereagh Police Office where he was examined at 8.50 a.m. by Dr H. who certified him fit to be questioned. Before being questioned the applicant was cautioned under Articles 3, 5 and 6 of the Criminal Evidence (Northern Ireland) Order 1988 (“the 1988 Order”). The applicant was also asked whether he wished to consult a solicitor. He replied that he did not. In the course of the first day the applicant was interviewed on 6 occasions and responded to police questioning by denying his involvement in any of the offences put to him. He offered an alibi in response to a claim that he had been involved in a robbery at a bookmaking premises, which the police declined to accept. On the morning of the second day, the applicant informed the police that he was mistaken in this alibi and he offered another explanation for his whereabouts at the time of the robbery. Again the police refused to accept this alternative alibi. The applicant asked to consult with his solicitor, Mr McGuckin. On receipt of this request, at or about 10 a.m., a police officer made an attempt to contact Mr McGuckin at his office. The police officer was told by Mr McGuckin’s office that he was out and could not be contacted. It was not known when he would return but that the message that the applicant was requesting his presence at Castlereagh Police Office would be passed on to him. In these circumstances Detective Superintendent H., pursuant to non-statutory guidelines issued by the Secretary of State relating to the questioning of terrorist suspects, authorised the interview to continue although the applicant had not had an opportunity to consult with his solicitor. When Mr McGuckin eventually arrived at Castlereagh Police Office some two and a half hours later, at 12.40 p.m., facilities were provided for the applicant to consult with him in private. The applicant had, however, already admitted to membership of the Irish Republican Army (“IRA”) and attempting to rob a post office. Following the consultation the applicant went on to make further verbal admissions and at 9.58 p.m. the applicant dictated a detailed statement to the interviewing officers describing his involvement in various terrorist offences, including a number about which he had not been questioned. After having made this statement, the applicant took the police to the area of his house and pointed out the various hiding places for weapons and explosives used by the IRA to which he had referred in his admission. The applicant was tried by a judge sitting alone at Belfast Crown Court. The indictment upon which he was charged contained 33 counts alleging various terrorist offences including 3 counts of conspiracy to murder, possession of firearms and ammunition, possession of explosive substances, false imprisonment, hijacking, robbery and membership of the IRA. The prosecution relied exclusively on the verbal admissions and the written statement which the applicant had made in the course of the second day of questioning at Castlereagh Police Office. The applicant did not dispute that the evidence before the court accurately recorded admissions which he made in the course of being interviewed. However, he submitted through his counsel at a voir dire hearing that the confession evidence should be excluded under section 11(2) of the Northern Ireland (Emergency Provisions) Act 1991 (“the 1991 Act”) on the grounds that it had been obtained by violence and threats of violence or, alternatively, under section 11(3) of the 1991 Act, in order to avoid unfairness to the applicant or as otherwise being in the interests of justice. The trial judge rejected the applicant’s contention that the admissions had been obtained by violence or threats of violence, being satisfied with the evidence given by the interviewing officers that they had treated the applicant fairly and properly. The trial judge therefore declined to exclude the evidence in the exercise of his general discretion under section 11(3) of the 1991 Act. The applicant’s counsel also argued under section 11(3) of the 1991 Act that the applicant was someone who was mentally handicapped, or in any event someone of limited intelligence with a vulnerable personality; that he had been induced to make verbal confessions on the basis that he would be released as an informer provided he first revealed information about IRA activities, and a written confession on the basis that he would only get a two or three-year sentence; that notwithstanding the applicant’s request to consult with a solicitor the police had, pending the solicitor’s arrival, persisted in questioning the applicant; and that in these circumstances, whether severally or as a whole, the confession evidence should be excluded so as to avoid unfairness or otherwise in the interests of justice. In rejecting the applicant’s argument under section 11(3) of the Act, the trial judge found that there was no medical evidence to support the assertion that the applicant was mentally handicapped. In this connection he noted that the consultant psychiatrist called by the applicant did not suggest that the applicant was mentally handicapped. As to the claim that the applicant was a vulnerable personality, the trial judge on the basis of the totality of the evidence “[was] entirely satisfied that the [applicant] was in no sense a mentally handicapped person or a vulnerable personality …. I consider him to be a ‘street-wise’ person who did not require the presence of a friend or solicitor so that his interviews could be considered fair.” Furthermore the trial judge rejected as lies the applicant’s evidence that he had, in confessing, been offered inducements by the interviewing officers. He also ruled that the relevant domestic law did not, in circumstances where a terrorist suspect had requested to consult with a solicitor, automatically require the interview to cease pending the solicitor’s arrival, and that Detective Superintendent H. had properly authorised the continuation of the interview in accordance with paragraph 33(b)(ii) of the non-statutory guidelines issued by the Secretary of State on the grounds that awaiting the arrival of the solicitor would cause unreasonable delay in the process of investigation. The trial judge was, in the circumstances, satisfied that it was fair to interview the applicant without waiting for his solicitor, that the confession evidence was reliable, and that he could properly act on it in convicting the applicant. The applicant’s counsel contended in addition at the voir dire hearing that the applicant, on the morning of his arrest on 21 June 1993, had headaches and an upset stomach caused by heavy drinking the night before, and that he was not fit to be interviewed. These claims were rejected by the trial judge, who noted that no mention of them had been made to Dr H. or to police officers at the time. The judge accepted Dr H.’s evidence that the applicant was fit to be interviewed and considered that the complaints were a “deliberate exaggeration”. On 11 July 1994 the applicant was convicted on 25 of the 33 counts in the indictment and sentenced to 18 years’ imprisonment. The applicant appealed against conviction. On appeal the applicant challenged the judge’s findings in respect of the issues raised under section 11(3) of the 1991 Act. In respect of the denial of access to a solicitor, the applicant raised the further point that following the decision of the Commission in the case of John Murray v. the United Kingdom (see the John Murray v. the United Kingdom judgment of 8 February 1996, Reports of Judgments and Decisions 1996-I, p. 66, opinion of the Commission) the denial of access to a solicitor was such as to deprive the applicant of a fair trial, and that accordingly the trial judge had erred in the exercise of his discretion in not excluding the confession evidence. The applicant did not challenge on appeal the ruling of the trial judge that the admissions had not been obtained through violence or threats of violence. Following a review of the transcript of the evidence before the trial judge on the voir dire, the Court of Appeal (Hutton LCJ) upheld the trial judge’s findings in respect of the points which had been raised on behalf of the applicant under section 11(3) of the Act. In respect of the applicant’s further contention that in view of the decision of the Commission in the John Murray v. the United Kingdom case the trial judge had erred in not excluding the evidence, the Court of Appeal ruled that: “The only right which Parliament intended to give a terrorist suspect in respect of access to a solicitor was the right to consult privately, after he had requested such a consultation given by section 45 [of the 1991 Act], subject to the restrictions set out in section 45(8). Moreover section 45 contains no prohibition against the police interviewing a terrorist suspect before his solicitor arrives to consult with him. ... [I]t is clear that a judge would be acting contrary to the will of Parliament if he were to hold in the exercise of his discretion under section 11(3) of the 1991 Act that an admission made by a terrorist suspect in an interview must be excluded from evidence on the sole ground that it was unfair that the suspect’s solicitor was not present at the interview or that the solicitor had not consulted with him prior to the interview.” The Court of Appeal accordingly held that the trial judge had properly exercised his discretion in not excluding the confession evidence under section 11(3) of the Act. B. Relevant domestic law and practice 1. Provisions governing inferences which may be drawn from an accused’s silence Article 3 of the Criminal Evidence (Northern Ireland) Order 1988 provides as relevant: “Circumstances in which inferences may be drawn from an 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 was 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.” 2. Provisions governing access to a solicitor The relevant provisions at the time of the applicant’s trial governing the right of access to legal advice as a terrorist suspect were contained in section 45 of the Northern Ireland (Emergency Provisions) Act 1991 which, in so far as material, provides: “(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.” Section 45 of the Act does not prohibit the police interviewing a terrorist suspect once a request has been made pending the arrival of his solicitor, nor is a person suspected of terrorist offences entitled – as provided for under paragraph 6.5 of Code C of the Criminal Evidence (Northern Ireland) Order 1989 in respect of non-terrorist offences – to have his solicitor present whilst he is interviewed: see section 66(12) of the 1989 Order which provides, in so far as relevant: “Nothing in a code of practice ... applies to the exercise of powers conferred by or under [the Prevention of Terrorism (Temporary Provisions) Act 1989] or to a person arrested or detained under those provisions.” Non-statutory guidelines issued by the Secretary of State for Northern Ireland in respect of the detention of persons suspected of terrorist offences, current at the time of the applicant’s arrest, provided, in so far as relevant, at paragraph 33: “A person who asks for legal advice may not be interviewed or continue to be interviewed until he has received it unless: ... (b) an officer of the rank of superintendent or above has reasonable grounds for believing that: (i) delay will involve an immediate risk of harm to persons or serious loss of, or damage to, property; or (ii) where a solicitor has been contacted and has agreed to attend, awaiting his arrival would cause unreasonable delay to the process of investigation; or (c) the solicitor nominated by the person, or selected by him from a list: (i) cannot be contacted; (ii) has previously indicated that he does not wish to be contacted; (iii) having been contacted, has declined to attend; or (d) the person has given his agreement in writing that the interview may be started at once.” The admissibility of confession evidence is governed by section 11 of the Northern Ireland (Emergency Provisions) Act 1991 which provides, inter alia, for the exclusion of confession evidence under section 11(2)(b) where that evidence has been obtained by violence or threat of violence, or under section 11(3): “... in the case of any statement made by the accused and not obtained by so subjecting him as mentioned in subsection (2)(b) above, the court ... has a discretion [to exclude the statement] if it appears to the court that it is appropriate to do so in order to avoid unfairness to the accused or otherwise in the interests of justice.”