Murray v United Kingdom, Application No. 18731/91 (Grand Chamber) [1996]

1st January 1996

• European Court of Human Rights,UK House of Lords
• Finalised
• Article 6
• Intervenor

The facts of the case

The Applicant was arrested in January 1990andcautioned by police undertheCriminal Evidence (Northern Ireland) Order 1988.Hisrequestfor a solicitorwas denied, with a Detective Superintendent authorising a delay of access to a solicitor for a period of 48 hours. This delay was permitted underthe Northern Ireland (Emergency Provisions) Act 1987.

At his trial, under the Diplock System whereby a single judge acts as the jury, the Applicant did notproduce 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 hima custodial sentence of 8 years. The Applicantsappealto the Crown Court of Irelandwas dismissedin 1992.

After lodging an application with the European Commission on Human Rights in 1991, the Applicants 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 theright to a fair trial of the European Convention on Human Rights,and the denial of access toa lawyer for the first 48 hours violated the right to freedom from discrimination.

Leave was granted to Amnesty International and JUSTICEto submit written comments on the case and to RSI (then BritishIrish Rights Watch), Liberty,and the Committee on the Administration of Justice(CAJ)to file a joint written submission.

RSIs intervention in the case

RSIs intervention concentrated on threeissues; 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.

RSIsubmitted that if the right of silence is eroded, the burden of proof is irreversibly shifted until the balance lies against the accused. Then the accusedcan no longer rely on the presumption ofinnocence, andis forced to answer questions and/or to testify.RSIargued that the Criminal Evidence (Northern Ireland) Order 1988createdunfairness in two crucial respects; firstly in that itputsuspects under pressure to incriminate themselves in conditions of unfairness, and secondly, thatiterodedthe principle of the presumption of innocence and effectively reversesthe burden of proof.

RSI submissions gavedetails of the statutoryand 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 includedthe 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 couldbe drawn because a suspect exercisedtheir 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 arrestviolated 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 fromthe 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. TheChamber 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 Murrays silence did not violate Article 6.

What does this mean for ourwork?

This case exemplifies RSIs longstanding commitment to upholding the human rights principles enshrined in the Convention.Ever drawing from the foremost and cutting edge legal scholarship, RSIs submissions in this case contained and were based on a paper by Professor John Jackson of, at the time, Queens University Belfast, which examined the jurisprudence of the Northern Ireland courts in cases involving the drawing of adverse inferences from a persons silence.