CASE OF JOHN MURRAY v. THE UNITED KINGDOM
No violation of Art. 6-1;No violation of Art. 6-2;Violation of Art. 6-1+6-3-c;Not necessary to examine Art. 14+6;Pecuniary damage - finding of violation sufficient;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings
John Freeland;N. Valticos;R. Pekkanen
11. The applicant was arrested by police officers at 5.40 p.m. on 7 January 1990 under section 14 of the Prevention of Terrorism (Temporary Provisions) Act 1989. Pursuant to Article 3 of the Criminal Evidence (Northern Ireland) Order 1988 ("the Order") (see paragraph 27 below), he was cautioned by the police in the following terms: "You do not have to say anything unless you wish to do so but I must warn you that if you fail to mention any fact which you rely on in your defence in court, your failure to take this opportunity to mention it may be treated in court as supporting any relevant evidence against you. If you do wish to say anything, what you say may be given in evidence." In response to the police caution the applicant stated that he had nothing to say. 12. On arrival at Castlereagh Police Office at about 7 p.m., he refused to give his personal details to the officer in charge of the custody record. At 7.05 p.m. he was informed of his right to have a friend or relative notified of his detention and indicated that he did not require anyone to be so notified. At 7.06 p.m. he indicated that he wished to consult with a solicitor. At 7.30 p.m. his 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 1987 Act"). The delay was authorised for a period of 48 hours from the time of detention (i.e. from 5.40 p.m. on 7 January) on the basis that the detective superintendent had reasonable grounds to believe that the exercise of the right of access would, inter alia, interfere with the gathering of information about the commission of acts of terrorism or make it more difficult to prevent an act of terrorism (see paragraph 33 below). 13. At 9.27 p.m. on 7 January a police constable cautioned the applicant pursuant to Article 6 of the Order, inter alia, requesting him to account for his presence at the house where he was arrested. He was warned that if he failed or refused to do so, a court, judge or jury might draw such inference from his failure or refusal as appears proper. He was also served with a written copy of Article 6 of the Order (see paragraph 27 below). In reply to this caution the applicant stated: "Nothing to say." 14. At 10.40 p.m. he was reminded of his right to have a friend or relative notified of his detention and stated that he did not want anyone notified. He was also informed that his right of access to a solicitor had been delayed. He then requested consultation with a different firm of solicitors. A police inspector reviewed the reasons for the delay and concluded that the reasons remained valid. 15. The applicant was interviewed by police detectives at Castlereagh Police Office on twelve occasions during 8 and 9 January. In total he was interviewed for 21 hours and 39 minutes. At the commencement of these interviews he was either cautioned pursuant to Article 3 of the Order or reminded of the terms of the caution. 16. During the first ten interviews on 8 and 9 January 1990 the applicant made no reply to any questions put to him. He was able to see his solicitor for the first time at 6.33 p.m. on 9 January. At 7.10 p.m. he was interviewed again and reminded of the Article 3 caution. He replied: "I have been advised by my solicitor not to answer any of your questions." A final interview, during which the applicant said nothing, took place between 9.40 p.m. and 11.45 p.m. on 9 January. His solicitor was not permitted to be present at any of these interviews. 17. In May 1991 the applicant was tried by a single judge, the Lord Chief Justice of Northern Ireland, sitting without a jury, for the offences of conspiracy to murder, the unlawful imprisonment, with seven other people, of a certain Mr L. and of belonging to a proscribed organisation, the Provisional Irish Republican Army (IRA). 18. According to the Crown, Mr L. had been a member of the IRA who had been providing information about their activities to the Royal Ulster Constabulary. On discovering that Mr L. was an informer, the IRA tricked him into visiting a house in Belfast on 5 January 1990. He was falsely imprisoned in one of the rear bedrooms of the house and interrogated by the IRA until the arrival of the police and the army at the house on 7 January 1990. It was also alleged by the Crown that there was a conspiracy to murder Mr L. as punishment for being a police informer. 19. In the course of the trial, evidence was given that when the police entered the house on 7 January, the applicant was seen by a police constable coming down a flight of stairs wearing a raincoat over his clothes and was arrested in the hall of the house. Mr L. testified that he was forced under threat of being killed to make a taped confession to his captors that he was an informer. He further said that on the evening of 7 January he had heard scurrying and had been told to take off his blindfold, that he had done so and had opened the spare bedroom door. He had then seen the applicant standing at the stairs. The applicant had told him that the police were at the door and to go downstairs and watch television. While he was talking to him the applicant was pulling tape out of a cassette. On a search of the house by the police items of clothing of Mr L. were subsequently found in the spare bedroom, whilst a tangled tape was discovered in the upstairs bathroom. The salvaged portions of the tape revealed a confession by Mr L. that he had agreed to work for the police and had been paid for so doing. At no time, either on his arrest or during the trial proceedings, did the applicant give any explanation for his presence in the house. 20. At the close of the prosecution case the trial 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 trial judge informed them inter alia: "I am also required by law to tell you that if you refuse to come into the witness box to be sworn or if, after having been sworn, you refuse, without good reason, to answer any question, then the court in deciding whether you are guilty or not guilty may take into account against you to the extent that it considers proper your refusal to give evidence or to answer any questions." 21. Acting on the advice of his solicitor and counsel, the applicant chose not to give any evidence. No witnesses were called on his behalf. Counsel, with support from the evidence of a co-accused, D.M., submitted, inter alia, that the applicant’s presence in the house just before the police arrived was recent and innocent. 22. On 8 May 1991 the applicant was found guilty of the offence of aiding and abetting the unlawful imprisonment of Mr L. and sentenced to eight years’ imprisonment. He was acquitted on the remaining charges. 23. The trial judge rejected D.M.’s evidence (see paragraph 21 above) as untruthful. He considered that "the surrounding facts, including the finding of the tangled tape in the bathroom with the broken cassette case, and the fact that, on entering the house some appreciable time after they arrived outside it and some appreciable time after they first knocked on the door, the police found Murray coming down the stairs at the time when all the other occupants of the house were in the living room, strongly confirm L’s evidence that after the police knocked on the door Murray was upstairs pulling the tape out of the cassette". 24. In rejecting a submission by the applicant that Articles 4 and 6 of the Order did not operate to permit the court to draw an adverse inference against him, where, at the end of the Crown case, there was a reasonably plausible explanation for the accused’s conduct consistent with his innocence, the trial judge stated as follows: "There can be debate as to the extent to which, before the making of the Criminal Evidence (Northern Ireland) Order 1988, a tribunal of fact in this jurisdiction was entitled to draw an adverse inference against an accused because he failed to give evidence on his own behalf, or to account for his presence at a particular place or to mention particular facts when questioned by the police. But I consider that the purpose of Article 4 and of Articles 3 and 6 of the 1988 Order was to make it clear that, whatever was the effect of the previous legal rules, a judge trying a criminal case without a jury, or a jury in a criminal case, was entitled to apply common sense in drawing inferences against the accused in the circumstances specified in Article 4, and in Articles 3 and 6 ... ... I think it is clear that the purpose of Article 4 is to permit the tribunal of fact to draw such inferences against the accused from his failure to give evidence in his own defence as common sense requires. The inference which it is proper to draw against an accused will vary from case to case depending on the failure of the accused to give evidence on his own behalf does not in itself indicate guilt. Nor does the failure to mention particular facts when questioned or the failure to account for presence in a particular place in itself indicate guilt. But I consider that the intendment of ... Article 4 and Article 6 is to enable the tribunal of fact to exercise ordinary common sense in drawing inferences against an accused ... Therefore when I come to consider the case against the accused ... I propose to draw such inferences against [him] under Article 4 and under Article 6 as ordinary common sense dictates." 25. "I accept the submissions of counsel for the accused that as demonstrated by his replies in cross-examination, L. is a man who is fully prepared to lie on oath to advance his own interests and is a man of no moral worth whatever. I, therefore, accept the further submissions of counsel for the accused that, unless his evidence were confirmed by other evidence, a court should not act on his evidence, particularly against accused persons in a criminal trial ... 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 his co-accused, [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 the house 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 ... [the applicant] was ‘near enough to give [his] aid and to give [his] countenance and assistance’." 26. The applicant appealed against conviction and sentence to the Court of Appeal in Northern Ireland. In a judgment of 7 July 1992, the court dismissed the applicant’s appeal holding, inter alia: "... to suggest, with respect, that [the applicant] went into the house just as the police were arriving outside, immediately went upstairs, attempted to destroy a tape and then walked downstairs, and that this was the sum of his time and activity in the house defies common sense ... We are satisfied that it can reasonably be inferred that [the applicant] knew before he came to the house that [L.] was being held captive there. With this knowledge he assisted in the false imprisonment by directing the captive from the bedroom where he had been held and by giving him the directions and admonition [L.] said. Accordingly [the applicant] aided and abetted the crime. We do not accept that [L.] would have been free to leave the house, if the police and army had been taken in by the pretence of the television watching and had departed without making any arrests. We have no doubt that [L.] remained under restraint in the living room when the police were there and if they had left, he would have remained a prisoner to await the fate that his captors would determine. 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. The Crown case deeply implicated [the applicant] in the false imprisonment of [L.]." 27. The 1988 Order includes the following provisions: "(4) A person shall not be committed for trial, have a case to answer or be convicted of an offence solely on an inference drawn from such a failure or refusal as is mentioned in Article 3 (2), 4 (4), 5 (2) or 6 (2). ... (7) Nothing in this Order prejudices any power of a court, in any proceedings, to exclude evidence (whether by preventing questions from being put or otherwise) at its discretion." "Circumstances in which inferences may be drawn from 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 had 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) ... (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. ..." "Accused to be called upon to give evidence at trial (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. (5) This Article does not render the accused compellable to give evidence on his own behalf, and he shall accordingly not be guilty of contempt of court by reason of a refusal to be sworn. ..." "Inferences from failure or refusal to account for presence at a particular place (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. ..." 28. In the case of R. v. Kevin Sean Murray (sub nom. Murray v. Director of Public Prosecutions), the House of Lords considered the effect of Article 4 of the Order ([1993] 97 Criminal Appeal Reports 151). In the leading judgment of the House of Lords, Lord Slynn stated that: "- at common law there was a divergence of view as to whether, and if so, when and in what manner a judge might comment on the failure of the accused to give evidence; - the Order intended to change the law and practice and to lay down new rules as to the comments which could be made and the inferences which could be drawn when the accused failed to give evidence at his trial; - under the Order the accused could not be compelled to give evidence but had to risk the consequences if he did not do so; and - the inferences which might be drawn from the accused’s failure to give evidence in his own defence included in a proper case the drawing of an inference that the accused was guilty of the offences with which he was charged." 29. He added: "... 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 inference 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 common sense.’ 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 common sense allow the drawing of an inference that there is no explanation and that the accused is guilty ..." 30. Lord Mustill in R. v. Kevin Sean Murray (cited above) stated that the expression "a prima facie case" "was intended to denote a case which is strong enough to go to a jury - i.e. a case consisting of direct evidence which, if believed and combined with legitimate inferences based upon it, could lead a properly directed jury to be satisfied beyond reasonable doubt ... that each of the essential elements of the offence is proved". 31. Even if a prima facie case is established, the trial judge has a discretion whether or not to draw inferences on the facts of the particular case. In the present case, the Court of Appeal indicated that if a judge accepted that an accused did not understand the warning given in the caution required by Article 6 or if he had doubts about it "we are confident that he would not activate Article 6 against him". 32. In R. v. Director of Serious Fraud Office, ex parte Smith [1992] 3 Weekly Law Reports 66, Lord Mustill stated that it was necessary to analyse which aspect of the right to silence is involved in any particular situation, because "... In truth it does not denote any single right, but rather refers to a disparate group of immunities, which differ in nature, origin, incidence and importance, and also as to the extent to which they have already been encroached upon by statute." Amongst the group of immunities which were covered by the expression "right to silence" Lord Mustill identified the following: "(1) A general immunity, possessed by all persons and bodies, from being compelled on pain of punishment to answer questions posed by other persons or bodies. (2) A general immunity, possessed by all persons and bodies, from being compelled on pain of punishment to answer questions the answers to which may incriminate them. (3) A specific immunity, possessed by all persons under suspicion of criminal responsibility whilst being interviewed by police officers or others in similar positions of authority, from being compelled on pain of punishment to answer questions of any kind. (4) A specific immunity, possessed by accused persons undergoing trial, from being compelled to give evidence, and from being compelled to answer questions put to them in the dock. (5) A specific immunity, possessed by persons who have been charged with a criminal offence, from having questions material to the offence addressed to them by police officers or persons in a similar position of authority. (6) A specific immunity ..., possessed by accused persons undergoing trial, from having adverse comment made on any failure (a) to answer questions before the trial, or (b) to give evidence at the trial." 33. 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. (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 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 ..." 34. The delay must be authorised by a police officer of at least the rank of superintendent (section 15, subsection (5) (a)) and the detained person must be told the reason for the delay (subsection (9) (a)). The maximum delay is 48 hours. 35. The courts in Northern Ireland have taken the view that the provisions of the 1988 Order should not be read subject to section 15 of the 1987 Act above. In the case of R. v. Dermot Quinn (judgment of the Belfast Crown Court of 23 December 1991), the trial judge rejected a submission to the effect that an adverse inference under Article 3 of the 1988 Order should not be drawn where the accused had asked for access to his solicitor but been interviewed by the police before his solicitor arrived to advise him. He noted that the 1988 Order had come into force after section 15 of the 1987 Act and considered that Parliament had not intended that an inference dictated by common sense which was permitted by Article 3 of the 1988 Order should not be drawn because of the right to access to legal advice given by section 15. In its judgment of 17 September 1993, the Court of Appeal in Northern Ireland upheld the trial judge’accused’s failure to respond to questions by the police before the receipt of legal advice from his solicitor. The court commented that a breach of section 15 might in certain circumstances allow the trial judge in his discretion to refuse to draw an adverse inference under Article 3 of the 1988 Order.