May 13, 1996European Court of Human Rights UK House of Lords Finalised Article 6 Intervenor
The facts of the case
The Applicant was arrested in January 1990 and cautioned by police under the Criminal Evidence (Northern Ireland) Order 1988. His request for a solicitor was denied, with a Detective Superintendent authorising a delay of access to a solicitor for a period of 48 hours. This delay was permitted under the Northern Ireland (Emergency Provisions) Act 1987.
At his trial, under the Diplock System whereby a single judge acts as the jury, the Applicant did not produce evidence, call witnesses or testify. Under Articles 4 and 6 of the Criminal Evidence (Northern Ireland) Order 1998, the judge made adverse inferences from this and convicted him of aiding and abetting false imprisonment and gave him a custodial sentence of 8 years. The Applicant’s appeal to the Crown Court of Ireland was dismissed in 1992.
After lodging an application with the European Commission on Human Rights in 1991, the Applicant’s case was referred to the Grand Chamber of the European Court of Human Rights (“the Chamber”). Murray argued that allowing for negative inferences to be drawn from his silence and refusal to provide evidence violated the right to a fair trial of the European Convention on Human Rights, and the denial of access to a lawyer for the first 48 hours violated the right to freedom from discrimination.
Leave was granted to Amnesty International and JUSTICE to submit written comments on the case and to RSI (then British Irish Rights Watch), Liberty, and the Committee on the Administration of Justice (CAJ) to file a joint written submission.
RSI’s intervention in the case
RSI’s intervention concentrated on three issues; the right to silence in the adversarial system, the right to silence in the Diplock courts, and the important of access to legal representatives in the Diplock courts.
RSI submitted that if the right of silence is eroded, the burden of proof is irreversibly shifted until the balance lies against the accused. Then the accused can no longer rely on the presumption of innocence, and is forced to answer questions and/or to testify. RSI argued that the Criminal Evidence (Northern Ireland) Order 1988 created unfairness in two crucial respects; firstly in that it put suspects under pressure to incriminate themselves in conditions of unfairness, and secondly, that it eroded the principle of the presumption of innocence and effectively reverses the burden of proof.
RSI submissions gave details of the statutory and case law governing access to lawyers, the factors peculiar to the Diplock Courts, and the situation in Northern Ireland generally which compounded the importance of access to lawyers. These factors included the use of prolonged detention and incommunicado detention, the oppressive conditions of detention, the lack of scrutiny of the police, the admissibility of confession evidence, the inferences that could be drawn because a suspect exercised their right to silence, and the absence of a jury.
The judgment in the case
The Court held that denying a suspect access to a lawyer immediately upon their arrest violated Article 6 of the Convention. This finding was consistent with the submissions made by RSI.
On the matter of whether the drawing of adverse inferences from the Applicant's silence infringed Article 6, the Court reasoned that it ought to be determined in the light of all the circumstances of the case. The Chamber determined that the Applicant had not been compelled to testify and the essence of the privilege against self-incrimination had not been destroyed. The Chamber therefore concluded that it should concentrate on the role the inferences played in the proceedings and conviction against the applicant. Concentrating on the role the inferences played, the Chamber cited the existence of the safeguards designed to respect the rights of the defence and to limit the extent to which inferences can be relied upon. Due to these safeguards and the strength of the evidence against Murray the Chamber found that the drawing of adverse inferences from Murray’s silence did not violate Article 6.
What does this mean for our work?
This case exemplifies RSI’s longstanding commitment to upholding the human rights principles enshrined in the Convention. Ever drawing from the foremost and cutting edge legal scholarship, RSI’s submissions in this case contained and were based on a paper by Professor John Jackson of, at the time, Queen’s University Belfast, which examined the jurisprudence of the Northern Ireland courts in cases involving the drawing of adverse inferences from a person’s silence.
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