HARPER v. THE UNITED KINGDOM
Inadmissible
Nicolas Bratza
The applicant is a British citizen born in Craigavon, Northern Ireland, and currently detained in HM Prison Maze, Northern Ireland. He is represented before the Court by Mr R. Monteith, a solicitor practising in Northern Ireland. A. The facts of the case, as submitted by the parties, may be summarised as follows. On 14 October 1992 the manager of a factory, Denny and Sons Ltd., received a telephone call from an individual who said that he was speaking on behalf of the Ulster Volunteer Force, an illegal organisation. The manager was instructed to pay a substantial amount of money under threat. The manager informed the police and a surveillance operation was mounted. The police provided the factory manager with green paper towels to be used to simulate bank notes. In accordance with the blackmailer's instructions, the factory manager went to a shop to obtain a white plastic bag in which to put the money. He purchased a packet of cream cracker biscuits to provide a reason for obtaining the bag. He then went to the location specified by the blackmailer and deposited the white plastic bag containing the paper towels and the packet of biscuits in the place agreed. The applicant was seen by a police officer working for the surveillance team approaching the area where the plastic bag had been placed. He was next seen with a white plastic bag containing something that appeared to be green. He was then seen some minutes later without the plastic bag. At 1.25 p.m. on 15 October 1992 the applicant was arrested pursuant to section 14(1)(b) of the Prevention of Terrorism (Temporary Provisions) Act 1989 (“the 1989 Act”). Following the applicant's arrest a search of the area was carried out in the course of which the box of biscuits was recovered. On subsequent examination of the box, a print of the applicant's left thumb was found on the box. The applicant was taken to Gough Police Office, Armagh, where over a period of 7 days, from 15 October 1992 until 21 October 1992, he was interviewed on 31 separate occasions. It would appear that all 31 interviews were conducted whilst the applicant was under caution pursuant to Article 3 of the Criminal Evidence (Northern Ireland) Order 1988 (“the 1988 Order”). On his arrival at the Gough Police Office, at 2.10 p.m. on 15 October 1992, the applicant indicated that he wished to see a solicitor as soon as practical. The police, pursuant to section 45 of the Northern Ireland (Emergency Provisions) Act 1991 (“the 1991 Act”), deferred access to the solicitor nominated by the applicant (Mr Monteith) until 8.45 a.m. on 16 October 1992. On 16 October 1992 the applicant consulted with his solicitor from 3.25 p.m. to 4.40 p.m. He had further consultations with his solicitor on 17 October from 4.50 p.m. to 5.50 p.m., on 18 October from 9.32 p.m. to 10.33 p.m., and on 19 October from 6.39 p.m. to 6.48 p.m. The applicant was interviewed on 23 occasions in the period from his arrest to the end of Interview no. 23 at 4.02 p.m. on 19 October 1992. Throughout these interviews the applicant denied being involved in any blackmail attempt and refuted the suggestion that he had been in the places in which he had been seen by the police surveillance team. At Interview no. 24, which began at 10.11 p.m. on 19 October 1992, the police confronted the applicant with evidence that his left thumbprint had been found on the box of biscuits recovered from the scene. When asked for an explanation as to how, in the light of his denials, his thumbprint could have been found on the packet, the applicant replied: “I didn't lift them, they were thrown at me”. The interview ended at 12.39 a.m. on 20 October 1992. The interviewing officers recorded in their notes at the conclusion of the interview: “[The applicant] appeared to want to tell the truth but was indecisive about how to approach the matter... [T]he interview laboured between [the applicant] wanting to talk to us but hesitating to do so.” At 8.30 a.m. on 20 October 1992 the applicant requested facilities to consult with his solicitor, Mr Monteith. At 9.02 a.m. an attempt was made to contact Mr Monteith. Mr Monteith was not at his office. It was noted in the Occurrence Book for Gough Police Office: “Mr Monteith's office contacted 9.02 hours. Mr Monteith to ring back later”. No time having been given for Mr Monteith's visit, Detective Superintendent C., pursuant to non-statutory guidelines issued by the Secretary of State relating to the questioning of terrorist suspects, authorised the interview to commence without the applicant first having had an opportunity to consult with his solicitor. Interview no. 25 commenced at 9.24 a.m. on 20 October 1992. In the course of this interview the applicant admitted to the blackmail offence and started to confess to his involvement in various acts of terrorism, including murder and membership of the Ulster Volunteer Force. The applicant went on to make further confessions during the 26th and 27th interviews which commenced at 12.10 p.m. and 2.34 p.m. respectively on 20 October 1992. At 5.17 p.m. on 20 October 1992, Mr H., a solicitor employed by Mr Monteith's firm, contacted Gough Police Office and arranged a consultation with the applicant for 7.30 p.m. In the interim a further interview, the 28th, was conducted in the course of which the applicant made further admissions. The applicant consulted with Mr H. from 7.50 p.m. until 8 p.m. The applicant informed police officers at Interview no. 27 that his solicitor had told him “not to make statements”. At the 29th interview, which was conducted on 20 October 1992 from 8.45 p.m. until 11.30 p.m., the applicant made further admissions of his involvement in various terrorist offences. The 30th and 31st interviews were conducted in the course of the following day, on 21 October 1992. During these final two interviews the applicant made further admissions. On 29 March 1995 the applicant was convicted before a single judge sitting without a jury at Belfast Crown Court on 22 counts alleging various offences of terrorism including murder, blackmail, possession of firearms and membership of the Ulster Volunteer Force. The applicant was sentenced to life imprisonment. The confession evidence obtained in the course of the police interviews sustained the charges against the applicant. The applicant, who did not dispute that the evidence before the court accurately recorded admissions which he made in the course of being interviewed, submitted through his counsel on the voir dire to determine the admissibility of the confession evidence that the evidence should be excluded under section 11(2) of the 1991 Act, on the grounds that it had been obtained by violence and threats of violence; 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. It was submitted on behalf of the applicant by his counsel that the confession evidence had been obtained in circumstances where: (1) threats had been made by the police that they would arrest and harass members of his family and put out the word that the applicant was a “tout” if he did not confess, together with express or implied promises that the police would help him if he confessed. The applicant further stated that in the course of being interviewed the police had fed him details of the various offences to which he subsequently admitted; (2) he was suffering from ill-health and confusion which manifested itself, inter alia, in a severe loss of weight, namely 13 pounds; and (3) there were breaches by the police of their duty to permit the applicant to consult with a solicitor. The interviewing officers as well as the applicant gave evidence in the voir dire and were cross-examined on their evidence. The interviewing officers denied that they had threatened the applicant or fed him with information in earlier interviews about the crimes to which he later confessed. They testified that they had confined their questions during the first 23 interviews to the blackmail offence. In respect of (1), the trial judge rejected the applicant's evidence that he had been threatened, or that he had been given promises and inducements to persuade him to confess, or that he had been fed information of crimes which he had then repeated to the police. The trial judge ruled that he was: “... satisfied beyond reasonable doubt ... that [the applicant's] evidence of threats made, and promises and inducements given to him, by the police, and the feeding of information to him about crimes other than the ... blackmail which he then repeated back to the police, are completely untrue.” He gave as his reasons, inter alia, that the evidence of the interviewing officers was to be believed, that the applicant's evidence and demeanour in the witness box showed him to be a completely untruthful witness, and that his version of events was “a concoction”. Further, the trial judge held that the fingerprint evidence was “a very damaging piece of evidence” and that it was that, rather than the alleged threats, which had caused the applicant to confess and “make a clean breast of matters”. In respect of (2), the trial judge found that whilst the applicant probably suffered some weight loss, it was not of the order of 13 pounds and that his weight had probably been inaccurately recorded when he first arrived. Furthermore, the trial judge accepted, in any event, the evidence of the various doctors, who had made routine examinations of the applicant during the period he was being interviewed, that the applicant was not in such a state of ill health or confusion such as to render him unfit to be interviewed. In respect of (3), the applicant's counsel contended that the police had acted unfairly and in breach of section 45 of the 1991 Act, and paragraph 33 of the non-statutory guidelines issued by the Secretary of State, in authorising the continuation of interviewing on 20 October 1992 without the applicant first having had an opportunity to consult with his solicitor. While admitting to having certain misgivings about Detective Superintendent C.'s testimony, the trial judge found that that police officer had reasonable grounds for believing that waiting for the applicant's solicitor to arrive, when no time had been specified for his visit, would cause unreasonable delay to the process of investigation. The trial judge found, accordingly, that in authorising the interviews to continue, Detective Superintendent C. had not acted in breach of the guidelines. The judge further noted that even if Detective Superintendent C. had breached paragraph 33 of the non-statutory guidelines in authorising interviews to continue on 20 October 1992, he would not have excluded the evidence obtained since he considered, with reference to the wording of section 11(3) of the 1991 Act, that “it would not have been appropriate to do so in order to avoid unfairness to the accused or otherwise in the interests of justice”. The trial judge gave as his reasons: “In this case [the applicant] had had the benefit of four consultations with his solicitor between 16 and 19 October. It is therefore clear that he had been fully advised as to his legal rights when being questioned by the police. It is also apparent from the interviews which took place between 15 and 19 October that [the applicant] was fully capable of declining to answer questions from the police and was fully capable of refusing to make admissions. It was common case that this was not the first time that [the applicant] had been interviewed whilst in police custody and it is clear that he was familiar with being interviewed by the police. Moreover the evidence which I heard on the voir dire satisfied me that nothing was said or done in the course of the interviews which was likely to make unreliable the confessions which were made by [the applicant]. A further important consideration is that I am satisfied that [the applicant] began to make confessions, not because of improper behaviour by the police in the course of the interviews, but because the police quite properly put to him a new and very damaging piece of evidence, which was that his fingerprint had been found on the packet of cream crackers. I am satisfied that this was the factor which caused him to begin to confess. Against those considerations and that background I do not consider that considerations of fairness to [the applicant] or other considerations in the interests of justice make it appropriate for the court to exclude his confessions in the exercise of its discretion.” The trial judge's overall conclusion in the light of all the evidence adduced at the voir dire was as follows: “In this case [the applicant] confessed to crimes of the utmost gravity on behalf of a terrorist organisation (including involvement in very brutal murders of a nature which have terrorised and horrified entire communities) in circumstances where: (1) there was no impropriety by the police in the course of the interviews; (2) there was nothing in the course of the interviews to give rise to a concern that the confessions were unreliable; (3) the accused was caused to confess because the police quite properly put to him that they had received new and very damaging evidence against him, namely his fingerprint on the packet of cream crackers; and (4) the accused had already consulted with his solicitor on 16th, 17th, 18th and 19th October and on the 20th the police properly and promptly at 9.02 a.m. informed his solicitor that the accused wished to see him. I consider that having regard to these circumstances neither considerations of fairness to the accused nor the interests of justice operate to cause the court to exclude the confessions in exercise of its discretion on the ground that he did not consult with his solicitor on 20 October before the interviews on that day in which he made confessions.” Following the voir dire the applicant declined in cross-examination to answer any questions as to whether the admissions which he had made of the various terrorist offences with which he was charged were true. The judge, in concluding that the confession evidence was true and reliable and that he could properly act on it in convicting the applicant, drew very strong inferences under Article 4 of the Criminal Evidence (Northern Ireland) Order 1988 from the applicant's refusal to give any evidence that would raise as a possibility that his admissions of involvement in various terrorist offences were untrue. The applicant appealed against conviction. On appeal the applicant challenged, inter alia, the exercise by the trial judge of his discretion in not excluding the confession evidence. In doing so, the applicant relied on each of the three grounds which had been raised before the trial judge. The applicant, through his counsel, disputed the trial judge's findings of fact in respect of each of the first two grounds. In respect of the third ground the applicant's counsel submitted in addition that even if there had been no breach of section 45 of the 1991 Act or paragraph 33 of the non-statutory guidelines issued by the Secretary of State, the judge should have ruled that it was unfair to interview the applicant on 20 October 1992 pending the arrival of his solicitor, as he had every reason to want, indeed need, a solicitor at that stage. Following a review of the transcript of the evidence before the trial judge, the Court of Appeal, upheld the judge's findings of fact in respect of the first two grounds. In respect of the third, the Court of Appeal held that there had not been any breach of the rules covering the conduct of police interviews. As regards the applicant's contention that it was unfair to continue to interview the applicant before he had had an opportunity to consult with his solicitor, the Court of Appeal found: “The reality in the present case was that the police were investigating a serious blackmail case, additional information or admissions might be forthcoming, [the applicant] had already had four visits from his solicitor and had been accompanied by him at the identification parade when R. had not picked him out, he had been interviewed before, he did not demur at the absence of his solicitor, he did not remain silent until he arrived instead he chose to reveal his part in a series of serious crimes which disclosed that he was an active terrorist assisting in the activities of a proscribed organisation – the Ulster Volunteer Force. [The applicant's counsel] submitted that his solicitor might have advised him to say nothing. That is so but equally he might have told his solicitor that he was going to confess – it is idle to speculate what might pass between a solicitor and his client. What we do know is that after he saw his solicitor he repeated his account of his criminal activities and went so far as to sign the notes.” The Court of Appeal accordingly held that the trial judge had properly exercised his discretion in not excluding the confession evidence, that this evidence sustained the charges upon which the applicant had been convicted, and, on 28 June 1996, confirmed the sentences which had been imposed. 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 in so far as relevant: “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 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. In this connection, section 66(12) of the 1989 Order 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.”