In the case of John Murray v. the United Kingdom (1),

         The European Court of Human Rights, sitting, pursuant to
Rule 51 of Rules of Court A (2), as a Grand Chamber composed of
the following judges:

         Mr R. Ryssdal, President,
         Mr R. Bernhardt,
         Mr F. Matscher,
         Mr L.-E. Pettiti,
         Mr B. Walsh,
         Mr N. Valticos,
         Mr S.K. Martens,
         Mrs E. Palm,
         Mr I. Foighel,
         Mr R. Pekkanen,
         Mr A.N. Loizou,
         Mr F. Bigi,
         Sir John Freeland,
         Mr M.A. Lopes Rocha,
         Mr L. Wildhaber,
         Mr J. Makarczyk,
         Mr D. Gotchev,
         Mr K. Jungwiert,
         Mr U. Lohmus,

and also of Mr H. Petzold, Registrar,

         Having deliberated in private on 28 September 1995 and
25 January 1996,

         Delivers the following judgment, which was adopted on
the last-mentioned date:
_______________
Notes by the Registrar

1.  The case is numbered 41/1994/488/570.  The first number is
the case's position on the list of cases referred to the Court
in the relevant year (second number).  The last two numbers
indicate the case's position on the list of cases referred to the
Court since its creation and on the list of the corresponding
originating applications to the Commission.

2.  Rules A apply to all cases referred to the Court before the
entry into force of Protocol No. 9 (P9) (1 October 1994) and
thereafter only to cases concerning States not bound by that
Protocol (P9).  They correspond to the Rules that came into force
on 1 January 1983, as amended several times subsequently.
_______________

PROCEDURE

1.       The case was referred to the Court by the European
Commission of Human Rights ("the Commission") on 9 September 1994
and by the Government of the United Kingdom of Great Britain and
Northern Ireland ("the Government") on 11 October 1994, within
the three-month period laid down by Article 32 para. 1 and
Article 47 (art. 32-1, art. 47) of the Convention for the
Protection of Human Rights and Fundamental Freedoms ("the
Convention").  It originated in an application (no. 18731/91)
against the United Kingdom lodged with the Commission under
Article 25 (art. 25) by Mr John Murray, a British citizen, on
16 August 1991.

         The Commission's request referred to Articles 44 and 48
(art. 44, art. 48) and to the declaration whereby the United
Kingdom recognised the compulsory jurisdiction of the Court
(Article 46) (art. 46).  The object of the request and of the
Government's application was to obtain a decision as to whether
the facts of the case disclosed a breach by the respondent State
of its obligations under Article 6 paras. 1 and 2 and Article 14
(art. 6-1, art. 6-2, art. 14) of the Convention.

2.       In response to the enquiry made in accordance with
Rule 33 para. 3 (d) of Rules of Court A, the applicant stated
that he wished to take part in the proceedings and designated the
lawyers who would represent him (Rule 30).

3.       The Chamber to be constituted included ex officio
Sir John Freeland, the elected judge of British nationality
(Article 43 of the Convention) (art. 43), and Mr R. Ryssdal, the
President of the Court (Rule 21 para. 3 (b)).  On
24 September 1994, in the presence of the Registrar, the
President drew by lot the names of the other seven members,
namely Mr L.-E. Pettiti, Mr R. Macdonald, Mr N. Valticos,
Mr S.K. Martens, Mrs E. Palm, Mr M.A. Lopes Rocha and
Mr K. Jungwiert (Article 43 in fine of the Convention and Rule 21
para. 4) (art. 43).  Mr Macdonald, who was unable to take part
in the case, was subsequently replaced by Mr U. Lohmus (Rule 22
para. 1).

4.       As President of the Chamber (Rule 21 para. 5),
Mr Ryssdal, acting through the Registrar, consulted the Agent of
the United Kingdom Government ("the Government"), the applicant's
lawyers and the Delegate of the Commission on the organisation
of the proceedings (Rules 37 para. 1 and 38).  Pursuant to the
order made in consequence on 4 November 1994, the Registrar
received the Government's memorial on 24 February 1995 and the
applicant's memorial on 27 February.  The Secretary to the
Commission subsequently indicated that the Delegate would submit
his observations at the hearing.

5.       On 26 January 1995, the President had granted, under
Rule 37 para. 2, leave to Amnesty International and Justice to
submit written comments in the case.  Leave was also granted, on
the same date, to the Committee on the Administration of Justice,
Liberty and British-Irish Rights Watch to file a joint written
submission and on 28 April to the Northern Ireland Standing
Advisory Commission on Human Rights.  Their respective comments
were received on 1, 3 and 10 April and 11 May.

6.       On 17 May 1995, the Government filed written comments on
the submission of Amnesty International, Justice and Liberty and
Others.

7.       In accordance with the President's decision, the hearing
took place in public in the Human Rights Building, Strasbourg,
on 20 June 1995.  The Court had held a preparatory meeting
beforehand.

         There appeared before the Court:

(a) for the Government

Mr  J.J. Rankin, Legal Counsellor, Foreign and
         Commonwealth Office,                                  Agent,
The Rt Hon. Sir Nicholas Lyell QC, Attorney-General for
         England and Wales and Attorney-General for
         Northern Ireland,
Mr  P. Coghlin QC,
Mr  J. Eadie,                                                Counsel,
Mr  C. Whomersley, Legal Secretariat to the
         Law Officers,
Mr  O. Paulin, Crown Solicitors Office,
Mr  R. Heaton, Home Office,
Mr  A. Whysall, Northern Ireland Office,                    Advisers;

(b) for the Commission

Mr  H. Danelius,                                            Delegate;

(c) for the applicant

Mr  S. Treacy, Barrister-at-Law,                             Counsel,
Mr  K. Winters, of Madden & Finucane,                      Solicitor,
Mr  A. Campbell,                                             Adviser.

         The Court heard addresses by Mr Danelius, Mr Treacy and
Sir Nicholas Lyell.

8.       On 23 June 1995, the Chamber decided, pursuant to
Rule 51, to relinquish jurisdiction forthwith in favour of a
Grand Chamber.  By virtue of Rule 51 para. 2 (a) and (b) the
President and the Vice-President of the Court (Mr Ryssdal and
Mr Bernhardt) as well as the other members of the original
Chamber are members of the Grand Chamber.  On 13 July 1995 the
names of the additional judges were drawn by lot by the President
in the presence of the Registrar, namely Mr F. Matscher,
Mr B. Walsh, Mr I. Foighel, Mr R. Pekkanen, Mr A.N. Loizou,
Mr F. Bigi, Mr L. Wildhaber, Mr J. Makarczyk and Mr D. Gotchev.

9.       With the agreement of the President, the applicant
submitted a detailed bill of costs on 28 June 1995.  The
Government forwarded their comments on this document on
21 July 1995.

10.      A further document entitled "Comments from the [United
Nations] Human Rights Committee" was submitted by Liberty and
Others on 1 August 1995 and by the applicant on 13 August.  This
was communicated to the Government and the Commission for their
information on 9 August and was admitted to the case file by the
Grand Chamber on 28 September 1995.

AS TO THE FACTS

I.       Particular circumstances of the case

A.       The applicant's arrest and detention

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.

B.       The trial proceedings

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
         particular circumstances of the case and, of course, 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.      In concluding that the applicant was guilty of the
offence of aiding and abetting false imprisonment, the trial
judge drew adverse inferences against the applicant under both
Articles 4 and 6 of the Order.  The judge stated that in the
particular circumstances of the case he did not propose to draw
inferences against the applicant under Article 3 of the Order.
He stated furthermore:

         "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'."

C.       The appeal proceedings

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.]."

II.      Relevant domestic law and practice

A.       Criminal Evidence (Northern Ireland) Order 1988

27.      The 1988 Order includes the following provisions:

                         Article 2 (4) and (7)

         "(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."

                               Article 3

         "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.

         ..."

                               Article 4

         "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.

         ..."

                               Article 6

         "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."

B.       Provisions governing access to a solicitor

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's ruling,
finding no unfairness in the circumstances of the case in drawing
an adverse inference in respect of the 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.

PROCEEDINGS BEFORE THE COMMISSION

36.      The applicant lodged his application (no. 18731/91) with
the Commission on 16 August 1991.  He complained, under Article 6
paras. 1 and 2 (art. 6-1, art. 6-2) of the Convention, that he
was deprived of the right to silence in the criminal proceedings
against him.  He further complained, under Article 6 para. 3 (c)
(art. 6-3-c), of his lack of access to a solicitor during his
detention and the fact that the practice concerning access to
solicitors differs between Northern Ireland and England and Wales
in violation of Article 14 (art. 14) of the Convention.

37.      The Commission declared the application admissible on
18 January 1994.  In its report of 27 June 1994 (Article 31)
(art. 31), the Commission expressed the opinion that there had
been no violation of Article 6 paras. 1 and 2 (art. 6-1,
art. 6-2) (fifteen votes to two), that there had been a violation
of Article 6 para. 1 in conjunction with Article 6 para. 3 (c)
(art. 6-1+art. 6-3-c) (thirteen votes to four) and that it was
not necessary to examine whether there had been a violation of
Article 14 in conjunction with Article 6 (art. 14+art.6)
(fourteen votes to three).

         The full text of the Commission's opinion and of the
five separate opinions contained in the report is reproduced as
an annex to this judgment (1).
_______________
Note by the Registrar

1.  For practical reasons this annex will appear only with the
printed version of the judgment (in Reports of Judgments and
Decisions - 1996), but a copy of the Commission's report is
obtainable from the registry.
_______________

FINAL SUBMISSIONS TO THE COURT

38.      The Government invited the Court to find that the
applicant's complaints of a breach of Article 6 paras. 1 and 2
(art. 6-1, art. 6-2) and of Article 6 paras. 1 and 3 (c) read in
conjunction with Article 14 (art. 6-1, art. 6-3-c+art. 14)
disclose no breach of the Convention.

39.      The applicant submitted that the provisions of the
1988 Order which permit inferences to be drawn from the failure
of the accused to answer police questions or to give evidence and
its use in determining the guilt of the applicant, violated
Article 6 paras. 1 and 2 (art. 6-1, art. 6-2) of the Convention.
Secondly, that the drawing of adverse inferences and the
restrictions which the Order imposed on the conduct of the
defence also violated those provisions (art. 6-1, art. 6-2).
Thirdly, he invited the Court to hold that the denial of access
to a solicitor while in police custody amounted to a violation
of Article 6 para. 3 (c) (art. 6-3-c) of the Convention.

AS TO THE LAW

I.       ALLEGED VIOLATION OF ARTICLE 6 (art. 6) OF THE
         CONVENTION

40.      The applicant alleged that there had been a violation of
the right to silence and the right not to incriminate oneself
contrary to Article 6 paras. 1 and 2 (art. 6-1, art. 6-2) of the
Convention.  He further complained that he was denied access to
his solicitor in violation of Article 6 para. 1 in conjunction
with paragraph 3 (c) (art. 6-1+art. 6-3-c) of the Convention.
The relevant provisions (art. 6-1, art. 6-3-c) provide as
follows:

         "1.     In the determination of ... any criminal charge
         against him, everyone is entitled to a fair and public
         hearing within a reasonable time by an independent and
         impartial tribunal established by law ...

         2.  Everyone charged with a criminal offence shall be
         presumed innocent until proved guilty according to law.

         3.  Everyone charged with a criminal offence has the
         following minimum rights:

         ...

         (c)     to defend himself in person or through legal
         assistance of his own choosing or, if he has not
         sufficient means to pay for legal assistance, to be
         given it free when the interests of justice so require;"

         The Court will examine each of these allegations in
turn.

A.       Article 6 paras. 1 and 2 (art. 6-1, art. 6-2): right to
         silence

41.      In the submission of the applicant, the drawing of
incriminating inferences against him under the Criminal Evidence
(Northern Ireland) Order 1988 ("the Order") violated Article 6
paras. 1 and 2 (art. 6-1, art. 6-2) of the Convention.  It
amounted to an infringement of the right to silence, the right
not to incriminate oneself and the principle that the prosecution
bear the burden of proving the case without assistance from the
accused.

         He contended that a first, and most obvious element of
the right to silence is the right to remain silent in the face
of police questioning and not to have to testify against oneself
at trial.  In his submission, these have always been essential
and fundamental elements of the British criminal justice system.
Moreover the Commission in Saunders v. the United Kingdom (report
of the Commission of 10 May 1994, paras. 71-73) and the Court in
Funke v. France (judgment of 25 February 1993, Series A
no. 256-A, p. 22, para. 44) have accepted that they are an
inherent part of the right to a fair hearing under Article 6
(art. 6).  In his view these are absolute rights which an accused
is entitled to enjoy without restriction.

         A second, equally essential element of the right to
silence was that the exercise of the right by an accused would
not be used as evidence against him in his trial.  However, the
trial judge drew very strong inferences, under Articles 4 and 6
of the Order, from his decision to remain silent under police
questioning and during the trial.  Indeed, it was clear from the
trial judge's remarks and from the judgment of the Court of
Appeal in his case that the inferences were an integral part of
his decision to find him guilty.

         Accordingly, he was severely and doubly penalised for
choosing to remain silent: once for his silence under police
interrogation and once for his failure to testify during the
trial.  To use against him silence under police questioning and
his refusal to testify during trial amounted to subverting the
presumption of innocence and the onus of proof resulting from
that presumption: it is for the prosecution to prove the
accused's guilt without any assistance from the latter being
required.

42.      Amnesty International submitted that permitting adverse
inferences to be drawn from the silence of the accused was an
effective means of compulsion which shifted the burden of proof
from the prosecution to the accused and was inconsistent with the
right not to be compelled to testify against oneself or to
confess guilt because the accused is left with no reasonable
choice between silence - which will be taken as testimony against
oneself - and testifying.  It pointed out that Article 14 (3) (g)
of the United Nations International Covenant on Civil and
Political Rights explicitly provides that an accused shall "not
be compelled to testify against himself or to confess guilt".
Reference was also made to Rule 42 (A) of the Rules of Procedure
and Evidence of the International Criminal Tribunal for the
Former Yugoslavia which expressly provides that a suspect has the
right to remain silent and to the Draft Statute for an
International Criminal Court, submitted to the United Nations
General Assembly by the International Law Commission, which in
Draft Article 26 (6) (a) (i) qualifies the right to silence with
the words "without such silence being a consideration in the
determination of guilt or innocence".

         Liberty and Others made similar submissions.  Justice
stressed that such encroachments on the right to silence
increased the risk of miscarriages of justice.

         The Northern Ireland Standing Advisory Commission on
Human Rights, for its part, considered that the right to silence
was not an absolute right, but rather a safeguard which might,
in certain circumstances, be removed provided other appropriate
safeguards for accused persons were introduced to compensate for
the potential risk of unjust convictions.

43.      The Government contended that what is at issue is not
whether the Order as such is compatible with the right to silence
but rather whether, on the facts of the case, the drawing of
inferences under Articles 4 and 6 of the Order rendered the
criminal proceedings against the applicant unfair contrary to
Article 6 (art. 6) of the Convention.

         They maintained, however, that the first question should
be answered in the negative.  They emphasised that the Order did
not detract from the right to remain silent in the face of police
questioning and explicitly confirmed the right not to have to
testify at trial.  They further noted that the Order in no way
changed either the burden or the standard of proof: it remained
for the prosecution to prove an accused's guilt beyond reasonable
doubt.  What the Order did was to confer a discretionary power
to draw inferences from the silence of an accused in carefully
defined circumstances.  They maintained that this did not, of
itself, violate the right to silence.

         In this respect, they emphasised the safeguards
governing the drawing of inferences under the Order which had
been highlighted in national judicial decisions (see
paragraphs 24 and 29 above).  In particular, it had been
consistently stressed by the courts that the Order merely allows
the trier of fact to draw such inferences as common sense
dictates.  The question in each case is whether the evidence
adduced by the prosecution is sufficiently strong to call for an
answer.

         With regard to the international standards to which
reference had been made by Amnesty International, it was
contended that they did not demonstrate any
internationally-accepted prohibition on the drawing of
common-sense inferences from the silence of an accused whether
at trial or pre-trial.  In particular, the Draft Statute for an
International Criminal Court is far from final and cannot be said
to have been adopted by the international community.

         As to the question whether, on the facts of the case,
the drawing of inferences under Articles 4 and 6 of the Order
rendered the criminal proceedings against the applicant unfair,
the Government comprehensively analysed the trial court's
assessment of the evidence against the applicant.  On the basis
of this analysis they submitted that on the evidence adduced
against the applicant by the Crown, the Court of Appeal was right
to conclude that a formidable case had been made out against him
which deeply implicated him in the false imprisonment of Mr L.
and that this case "called for an answer".  The drawing of
inferences therefore had been quite natural and in accordance
with common sense.

44.      The Court must, confining its attention to the facts of
the case, consider whether the drawing of inferences against the
applicant under Articles 4 and 6 of the Order rendered the
criminal proceedings against him - and especially his conviction
- unfair within the meaning of Article 6 (art. 6) of the
Convention.  It is recalled in this context that no inference was
drawn under Article 3 of the Order.  It is not the Court's role
to examine whether, in general, the drawing of inferences under
the scheme contained in the Order is compatible with the notion
of a fair hearing under Article 6 (art. 6) (see, amongst many
examples, the Brogan and Others v. the United Kingdom judgment
of 29 November 1988, Series A no. 145-B, p. 29, para. 53).

45.      Although not specifically mentioned in Article 6
(art. 6) of the Convention, there can be no doubt that the right
to remain silent under police questioning and the privilege
against self-incrimination are generally recognised international
standards which lie at the heart of the notion of a fair
procedure under Article 6 (art. 6) (see the Funke judgment cited
above, loc. cit.).  By providing the accused with protection
against improper compulsion by the authorities these immunities
contribute to avoiding miscarriages of justice and to securing
the aims of Article 6 (art. 6).

46.      The Court does not consider that it is called upon to
give an abstract analysis of the scope of these immunities and,
in particular, of what constitutes in this context "improper
compulsion".  What is at stake in the present case is whether
these immunities are absolute in the sense that the exercise by
an accused of the right to silence cannot under any circumstances
be used against him at trial or, alternatively, whether informing
him in advance that, under certain conditions, his silence may
be so used, is always to be regarded as "improper compulsion".

47.      On the one hand, it is self-evident that it is
incompatible with the immunities under consideration to base a
conviction solely or mainly on the accused's silence or on a
refusal to answer questions or to give evidence himself.  On the
other hand, the Court deems it equally obvious that these
immunities cannot and should not prevent that the accused's
silence, in situations which clearly call for an explanation from
him, be taken into account in assessing the persuasiveness of the
evidence adduced by the prosecution.

         Wherever the line between these two extremes is to be
drawn, it follows from this understanding of "the right to
silence" that the question whether the right is absolute must be
answered in the negative.

         It cannot be said therefore that an accused's decision
to remain silent throughout criminal proceedings should
necessarily have no implications when the trial court seeks to
evaluate the evidence against him.  In particular, as the
Government have pointed out, established international standards
in this area, while providing for the right to silence and the
privilege against self-incrimination, are silent on this point.

         Whether the drawing of adverse inferences from an
accused's silence infringes Article 6 (art. 6) is a matter to be
determined in the light of all the circumstances of the case,
having particular regard to the situations where inferences may
be drawn, the weight attached to them by the national courts in
their assessment of the evidence and the degree of compulsion
inherent in the situation.

48.      As regards the degree of compulsion involved in the
present case, it is recalled that the applicant was in fact able
to remain silent.  Notwithstanding the repeated warnings as to
the possibility that inferences might be drawn from his silence,
he did not make any statements to the police and did not give
evidence during his trial.  Moreover under Article 4 (5) of the
Order he remained a non-compellable witness (see paragraph 27
above).  Thus his insistence in maintaining silence throughout
the proceedings did not amount to a criminal offence or contempt
of court.  Furthermore, as has been stressed in national court
decisions, silence, in itself, cannot be regarded as an
indication of guilt (see paragraphs 24 and 29 above).

49.      The facts of the present case accordingly fall to be
distinguished from those in Funke (see paragraph 41 above) where
criminal proceedings were brought against the applicant by the
customs authorities in an attempt to compel him to provide
evidence of offences he had allegedly committed.  Such a degree
of compulsion in that case was found by the Court to be
incompatible with Article 6 (art. 6) since, in effect, it
destroyed the very essence of the privilege against
self-incrimination.

50.      Admittedly a system which warns the accused - who is
possibly without legal assistance (as in the applicant's case) -
 that adverse inferences may be drawn from a refusal to provide
an explanation to the police for his presence at the scene of a
crime or to testify during his trial, when taken in conjunction
with the weight of the case against him, involves a certain level
of indirect compulsion.  However, since the applicant could not
be compelled to speak or to testify, as indicated above, this
factor on its own cannot be decisive.  The Court must rather
concentrate its attention on the role played by the inferences
in the proceedings against the applicant and especially in his
conviction.

51.      In this context, it is recalled that these were
proceedings without a jury, the trier of fact being an
experienced judge.  Furthermore, the drawing of inferences under
the Order is subject to an important series of safeguards
designed to respect the rights of the defence and to limit the
extent to which reliance can be placed on inferences.

         In the first place, before inferences can be drawn under
Article 4 and 6 of the Order appropriate warnings must have been
given to the accused as to the legal effects of maintaining
silence.  Moreover, as indicated by the judgment of the House of
Lords in R. v. Kevin Sean Murray the prosecutor must first
establish a prima facie case against the accused, 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 (see
paragraph 30 above).

         The question in each particular case is whether the
evidence adduced by the prosecution is sufficiently strong to
require an answer.  The national court cannot conclude that the
accused is guilty merely because he chooses to remain silent.
It is only if the evidence against the accused "calls" for an
explanation which the accused ought to be in a position to give
that 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".  Conversely if the
case presented by the prosecution had so little evidential value
that it called for no answer, a failure to provide one could not
justify an inference of guilt (ibid.).  In sum, it is only
common-sense inferences which the judge considers proper, in the
light of the evidence against the accused, that can be drawn
under the Order.

         In addition, the trial judge has a discretion whether,
on the facts of the particular case, an inference should be
drawn.  As indicated by the Court of Appeal in the present case,
if a judge accepted that an accused did not understand the
warning given or if he had doubts about it, "we are confident
that he would not activate Article 6 against him" (see
paragraph 31 above).  Furthermore in Northern Ireland, where
trial judges sit without a jury, the judge must explain the
reasons for the decision to draw inferences and the weight
attached to them.  The exercise of discretion in this regard is
subject to review by the appellate courts.

52.      In the present case, the evidence presented against the
applicant by the prosecution was considered by the Court of
Appeal to constitute a "formidable" case against him (see
paragraph 26 above).  It is recalled that when the police entered
the house some appreciable time after they knocked on the door,
they found the applicant coming down the flight of stairs in the
house where Mr L. had been held captive by the IRA.  Evidence had
been given by Mr L. - evidence which in the opinion of the trial
judge had been corroborated - that he had been forced to make a
taped confession and that after the arrival of the police at the
house and the removal of his blindfold he saw the applicant at
the top of the stairs.  He had been told by him to go downstairs
and watch television.  The applicant was pulling a tape out of
a cassette.  The tangled tape and cassette recorder were later
found on the premises.  Evidence by the applicant's co-accused
that he had recently arrived at the house was discounted as not
being credible (see paragraphs 25 and 26 above).

53.      The trial judge drew strong inferences against the
applicant under Article 6 of the Order by reason of his failure
to give an account of his presence in the house when arrested and
interrogated by the police.  He also drew strong inferences under
Article 4 of the Order by reason of the applicant's refusal to
give evidence in his own defence when asked by the court to do
so (see paragraph 25 above).

54.      In the Court's view, having regard to the weight of the
evidence against the applicant, as outlined above, the drawing
of inferences from his refusal, at arrest, during police
questioning and at trial, to provide an explanation for his
presence in the house was a matter of common sense and cannot be
regarded as unfair or unreasonable in the circumstances.  As
pointed out by the Delegate of the Commission, the courts in a
considerable number of countries where evidence is freely
assessed may have regard to all relevant circumstances, including
the manner in which the accused has behaved or has conducted his
defence, when evaluating the evidence in the case.  It considers
that, what distinguishes the drawing of inferences under the
Order is that, in addition to the existence of the specific
safeguards mentioned above, it constitutes, as described by the
Commission, "a formalised system which aims at allowing
common-sense implications to play an open role in the assessment
of evidence".

         Nor can it be said, against this background, that the
drawing of reasonable inferences from the applicant's behaviour
had the effect of shifting the burden of proof from the
prosecution to the defence so as to infringe the principle of the
presumption of innocence.

55.      The applicant submitted that it was unfair to draw
inferences under Article 6 of the Order from his silence at a
time when he had not had the benefit of legal advice.  In his
view the question of access to a solicitor was inextricably
entwined with that of the drawing of adverse inferences from
pre-trial silence under police questioning.  In this context he
emphasised that under the Order once an accused has remained
silent a trap is set from which he cannot escape: if an accused
chooses to give evidence or to call witnesses he is, by reason
of his prior silence, exposed to the risk of an Article 3
inference sufficient to bring about a conviction; on the other
hand, if he maintains his silence inferences may be drawn against
him under other provisions of the Order.

56.      The Court recalls that it must confine its attention to
the facts of the present case (see paragraph 44 above).  The
reality of this case is that the applicant maintained silence
right from the first questioning by the police to the end of his
trial.  It is not for the Court therefore to speculate on the
question whether inferences would have been drawn under the Order
had the applicant, at any moment after his first interrogation,
chosen to speak to the police or to give evidence at his trial
or call witnesses.  Nor should it speculate on the question
whether it was the possibility of such inferences being drawn
that explains why the applicant was advised by his solicitor to
remain silent.

         Immediately after arrest the applicant was warned in
accordance with the provisions of the Order but chose to remain
silent.  The Court, like the Commission, observes that there is
no indication that the applicant failed to understand the
significance of the warning given to him by the police prior to
seeing his solicitor.  Under these circumstances the fact that
during the first 48 hours of his detention the applicant had been
refused access to a lawyer does not detract from the above
conclusion that the drawing of inferences was not unfair or
unreasonable (see paragraph 54 above).

         Nevertheless, the issue of denial of access to a
solicitor, has implications for the rights of the defence which
call for a separate examination (see paragraphs 59-69 below).

57.      Against the above background, and taking into account
the role played by inferences under the Order during the trial
and their impact on the rights of the defence, the Court does not
consider that the criminal proceedings were unfair or that there
had been an infringement of the presumption of innocence.

58.      Accordingly, there has been no violation of Article 6
paras. 1 and 2 (art. 6-1, art. 6-2) of the Convention.

B.       Access to lawyer

59.      The applicant submitted that he was denied access to a
lawyer at a critical stage of the criminal proceedings against
him.  He pointed out that in Northern Ireland the initial phase
of detention is of crucial importance in the context of the
criminal proceedings as a whole because of the possibility of
inferences being drawn under Articles 3, 4 and 6 of the Order.

         He was in fact denied access to any legal advice for 48
hours.  During that time Article 3 and Article 6 cautions had
been administered without his having had the benefit of prior
legal advice.  He was interviewed on twelve occasions without a
solicitor being present to represent his interests.  When he was
finally granted access to his solicitor he was advised to remain
silent partly because he had maintained silence already during
the interview and partly because the solicitor would not be
permitted to remain during questioning.  The silence which had
already occurred prior to seeing his solicitor would have
triggered the operation of both Articles 3 and 6 at any
subsequent trial, even had he chosen to give an account to the
police.  Having regard to the very strong inferences which the
trial judge drew under Articles 4 and 6 of the Order, the
decision to deny him access to a solicitor unfairly prejudiced
the rights of the defence and rendered the proceedings against
him unfair contrary to Article 6 paras. 1 and 3 (c) (art. 6-1,
art. 6-3-c) of the Convention.

60.      In the submission of the Government, actual as opposed
to notional or theoretical prejudice must be shown by an
applicant in order to conclude that there had been a breach of
Article 6 para. 1 (art. 6-1).  The following matters were
highlighted in this respect.

         In the first place, the applicant did not seek to
challenge by way of judicial review the exercise of the statutory
power to delay access to a lawyer for up to 48 hours.  The power
is designed, inter alia, to limit the risk of interference with
the vital information-gathering process and the risk that a
person involved in an act of terrorism or still at large may be
alerted.  The denial of access was therefore a bona fide exercise
of necessary and carefully designed statutory powers on
reasonable grounds.

         Secondly, as accepted by the Commission, the inferences
drawn under Articles 4 and 6 of the Order were not the only
evidence against the applicant.  Furthermore the delay of access
to a lawyer was for a limited period of 48 hours.  Thereafter he
had access to lawyers of his own choosing.  He was represented
both at his trial and on appeal by experienced solicitors and
counsel and was in receipt of legal aid.

         The Government did not accept that the applicant was
irretrievably prejudiced in his defence because of the denial of
access.  They submitted that if, having consulted his solicitor,
he had accounted for his presence at the scene of the crime and
put forward an innocent explanation, it would have been extremely
unlikely that Article 3 or Article 6 inferences would have been
drawn.  Moreover there was nothing to suggest, in his attitude
or actions, that he would have acted differently had he seen a
solicitor from the beginning.  He had consistently refused to
answer any questions put to him, both before and after he had
consulted with his solicitor.  In order to make out a case of
actual prejudice it must be alleged by the applicant that if he
had been able to consult his solicitor earlier he would have
acted differently.

         In sum, a limited delay of access to a lawyer did not
cause any actual prejudice to the applicant's defence.

61.      Amnesty International and Liberty and Others stressed
that access to a lawyer when in police custody is an integral
part of well-established international standards concerning
protection against the dangers of incommunicado detention.  It
was also a vital element in enabling access to the procedural
guarantees of the courts in respect of illegal detention.  They
both stressed, inter alia, that in the context of Northern
Ireland where adverse inferences could be drawn from the
applicant's failure to answer questions by the police it was
particularly important to be assisted by a solicitor at an early
stage.

         The Northern Ireland Standing Advisory Commission on
Human Rights considered that it was very much in the public
interest that those detained for questioning should have
immediate access to legal advice.

62.      The Court observes that it has not been disputed by the
Government that Article 6 (art. 6) applies even at the stage of
the preliminary investigation into an offence by the police.  In
this respect it recalls its finding in the Imbrioscia
v. Switzerland judgment of 24 November 1993 that Article 6
(art. 6) - especially paragraph 3 (art. 6-3) - may be relevant
before a case is sent for trial if and so far as the fairness of
the trial is likely to be seriously prejudiced by an initial
failure to comply with its provisions (art. 6-3) (Series A
no. 275, p. 13, para. 36).  As it pointed out in that judgment,
the manner in which Article 6 para. 3 (c) (art. 6-3-c) is to be
applied during the preliminary investigation depends on the
special features of the proceedings involved and on the
circumstances of the case (loc. cit., p. 14, para. 38).

63.      National laws may attach consequences to the attitude of
an accused at the initial stages of police interrogation which
are decisive for the prospects of the defence in any subsequent
criminal proceedings.  In such circumstances Article 6 (art. 6)
will normally require that the accused be allowed to benefit from
the assistance of a lawyer already at the initial stages of
police interrogation.  However, this right, which is not
explicitly set out in the Convention, may be subject to
restrictions for good cause.  The question, in each case, is
whether the restriction, in the light of the entirety of the
proceedings, has deprived the accused of a fair hearing.

64.      In the present case, the applicant's right of access to
a lawyer during the first 48 hours of police detention was
restricted under section 15 of the Northern Ireland (Emergency
Provisions) Act 1987 on the basis that the police 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 such an act.

65.      It is observed that the applicant did not seek to
challenge the exercise of this power by instituting proceedings
for judicial review although, before the Court, he now contests
its lawfulness.  The Court, however, has no reason to doubt that
it amounted to a lawful exercise of the power to restrict access.
Nevertheless, although it is an important element to be taken
into account, even a lawfully exercised power of restriction is
capable of depriving an accused, in certain circumstances, of a
fair procedure.

66.      The Court is of the opinion that the scheme contained in
the Order is such that it is of paramount importance for the
rights of the defence that an accused has access to a lawyer at
the initial stages of police interrogation.  It observes in this
context that, under the Order, at the beginning of police
interrogation, an accused is confronted with a fundamental
dilemma relating to his defence.  If he chooses to remain silent,
adverse inferences may be drawn against him in accordance with
the provisions of the Order.  On the other hand, if the accused
opts to break his silence during the course of interrogation, he
runs the risk of prejudicing his defence without necessarily
removing the possibility of inferences being drawn against him.

         Under such conditions the concept of fairness enshrined
in Article 6 (art. 6) requires that the accused has the benefit
of the assistance of a lawyer already at the initial stages of
police interrogation.  To deny access to a lawyer for the first
48 hours of police questioning, in a situation where the rights
of the defence may well be irretrievably prejudiced, is -
whatever the justification for such denial - incompatible with
the rights of the accused under Article 6 (art. 6).

67.      The Government have argued that in order to complain
under Article 6 (art. 6) of denial of access to a lawyer it must
be clear that, had the applicant been able to consult with his
solicitor earlier, he would have acted differently from the way
he did.  It is contended that the applicant has not shown this
to be the case.

68.      It is true, as pointed out by the Government, that when
the applicant was able to consult with his solicitor he was
advised to continue to remain silent and that during the trial
the applicant chose not to give evidence or call witnesses on his
behalf.  However, it is not for the Court to speculate on what
the applicant's reaction, or his lawyer's advice, would have been
had access not been denied during this initial period.  As
matters stand, the applicant was undoubtedly directly affected
by the denial of access and the ensuing interference with the
rights of the defence.  The Court's conclusion as to the drawing
of inferences does not alter that (see paragraphs 43-57 above).

69.      In his written submissions to the Court, the applicant
appeared to make the further complaint under this head that his
solicitor was unable to be present during police interviews.
However, whether or not this issue formed part of the complaints
admitted by the Commission, in any event its examination of the
case was limited to that of the question of his access to a
lawyer.  Moreover, the case as argued before the Court was, in
the main, confined to this issue.  In these circumstances, and
having regard to the Court's finding that he ought to have had
access to a lawyer, it is not necessary to examine this point.

70.      There has therefore been a breach of Article 6 para. 1
in conjunction with paragraph 3 (c) (art. 6-1+art. 6-3-c) of the
Convention as regards the applicant's denial of access to a
lawyer during the first 48 hours of his police detention.

II.      ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION IN
         CONJUNCTION WITH ARTICLE 6 (art. 14+art.6)

71.      The applicant further complained that the practice in
Northern Ireland regarding access of solicitors to terrorist
suspects was discriminatory, contrary to Article 14 of the
Convention taken in conjunction with Article 6 (art. 14+art.6),
having regard to the fact that solicitors were not permitted to
be present at any stage during the interviewing of suspects by
the police unlike their counterparts in England and Wales.

72.      However, in the light of its conclusion that the denial
of access to a solicitor in the present case gave rise to a
breach of Article 6 para. 1 in conjunction with paragraph 3 (c)
(art. 6-1+art. 6-3-c) of the Convention (see paragraph 70 above),
the Court does not consider that it is necessary to examine this
issue.

III.     APPLICATION OF ARTICLE 50 (art. 50) OF THE CONVENTION

73.      Article 50 (art. 50) of the Convention provides as
follows:

         "If the Court finds that a decision or a measure taken
         by a legal authority or any other authority of a High
         Contracting Party is completely or partially in conflict
         with the obligations arising from the ... Convention,
         and if the internal law of the said Party allows only
         partial reparation to be made for the consequences of
         this decision or measure, the decision of the Court
         shall, if necessary, afford just satisfaction to the
         injured party."

A.       Pecuniary and non-pecuniary damage

74.      The applicant claimed compensation in such amount as the
Court might consider equitable for the damage suffered by him by
reason of his conviction and sentence in violation, inter alia,
of Article 6 (art. 6) of the Convention.

75.      The Government, on the other hand, submitted that even
in the event of a finding of a violation no award should be made
under this head.

76.      The Court agrees.  It recalls that its finding of a
violation of Article 6 (art. 6) is limited to the applicant's
complaint concerning access to a solicitor.  In its opinion, the
finding of a violation is, in itself, sufficient just
satisfaction for the purposes of Article 50 (art. 50) of the
Convention.

B.       Costs and expenses

77.      The applicant claimed £57,263.51 by way of costs and
expenses.

78.      The Government considered that the applicant's bill of
costs was in various respects excessive.  They submitted that,
in the event of the Court finding in favour of the applicant,
only £36,241.09 should be awarded.  However only a proportion of
the costs and expenses should be allowed if the Court were to
find that only part of the applicant's complaints gave rise to
a breach of the Convention.

79.      Bearing in mind that the finding of a violation only
relates to the applicant's complaint concerning access to a
lawyer, the Court awards £15,000 less 37,968.60 French francs
granted by the Council of Europe by way of legal aid.

C.       Default interest

80.      According to the information available to the Court, the
statutory rate of interest applicable in the United Kingdom at
the date of adoption of the present judgment is 8% per annum.

FOR THESE REASONS, THE COURT

1.       Holds by fourteen votes to five that there has been no
         violation of Article 6 paras. 1 and 2 (art. 6-1,
         art. 6-2) of the Convention arising out of the drawing
         of adverse inferences on account of the applicant's
         silence;

2.       Holds by twelve votes to seven that there has been a
         violation of Article 6 para. 1 in conjunction with
         paragraph 3 (c) (art. 6-1+art. 6-3-c) of the Convention
         as regards the applicant's lack of access to a lawyer
         during the first 48 hours of his police detention;

3.       Holds unanimously that it is not necessary to examine
         the applicant's complaint of a violation of Article 14
         in conjunction with Article 6 (art. 14+art. 6);

4.       Holds unanimously that, as regards pecuniary and
         non-pecuniary damage, the finding of a violation of
         Article 6 para. 1 in conjunction with paragraph 3 (c)
         (art. 6-1+art. 6-3-c) constitutes, in itself, sufficient
         just satisfaction for the purposes of Article 50
         (art. 50) of the Convention;

5.       Holds unanimously

         (a)     that the respondent State is to pay, within three
         months, for costs and expenses £15,000 (fifteen
         thousand), less 37,968.60 (thirty-seven thousand nine
         hundred and sixty-eight) French francs and sixty
         centimes to be converted into pounds sterling at the
         rate of exchange applicable on the date of delivery of
         the present judgment;

         (b)     that simple interest at an annual rate of 8%
         shall be payable from the expiry of the above-mentioned
         three months until settlement;

6.       Dismisses unanimously the remainder of the claims for
         just satisfaction.

         Done in English and in French, and delivered at a public
hearing in the Human Rights Building, Strasbourg, on
8 February 1996.

Signed: Rolv Ryssdal
        President

Signed: Herbert Petzold
        Registrar

         In accordance with Article 51 para. 2 (art. 51-2) of the
Convention and Rule 53 para. 2 of Rules of Court A, the following
separate opinions are annexed to this judgment:

         (a)     joint partly dissenting opinion of Mr Ryssdal,
                 Mr Matscher, Mrs Palm, Mr Foighel,
                 Sir John Freeland, Mr Wildhaber and Mr Jungwiert;

         (b)     partly dissenting opinion of Mr Pettiti, joined
                 by Mr Valticos;

         (c)     partly dissenting opinion of Mr Walsh, joined by
                 Mr Makarczyk and Mr Lohmus.

Initialled: R. R.

Initialled: H. P.

     JOINT PARTLY DISSENTING OPINION OF JUDGES RYSSDAL, MATSCHER,
       PALM, FOIGHEL, Sir John FREELAND, WILDHABER AND JUNGWIERT

1.       We are unable to agree with the conclusion of the
majority that there has been a violation of Article 6 para. 1 in
conjunction with paragraph 3 (c) (art. 6-1+art. 6-3-c) of the
Convention as regards the applicant's lack of access to a
solicitor during the first 48 hours of his police detention.

2.       We have no difficulty with paragraphs 41 to 58 of the
judgment, in which the Court, after a careful analysis, rejects
the contention that the criminal proceedings were unfair or that
there had been an infringement of the presumption of innocence
and accordingly concludes that there has been no violation of
Article 6 paras. 1 and 2 (art. 6-1, art. 6-2) of the Convention.
In the course of that analysis the Court points out
(paragraph 44) that it "must, confining its attention to the
facts of the case, consider whether the drawing of inferences
against the applicant ... rendered the criminal proceedings
against him - and especially his conviction - unfair within the
meaning of Article 6 (art. 6)" and goes on to say that "[i]t is
not the Court's role to examine whether,in general, the drawing
of inferences under the scheme contained in the Order is
compatible with the notion of a fair hearing under Article 6
(art. 6) ..." (emphasis added).  In our view this approach,
stressing as it does the actual facts of the case, is entirely
correct.

3.       When, however, the judgment comes to deal with the
question of access to a lawyer, a rather different approach is
adopted.  After some general observations about the application
of Article 6 (art. 6) at the stage of preliminary investigation
by the police, the Court acknowledges that the right of an
accused to benefit from the assistance of a lawyer "already at
the initial stages of police interrogation ..., may be subject
to restrictions for good cause".  It adds that the "question, in
each case, is whether the restriction, in the light of the
entirety of the proceedings, has deprived the accused of a fair
hearing" (paragraph 63).

4.       The Court then, after giving some consideration to the
exercise of the power of restriction under section 15 of the
1987 Act which took place in this case, expresses in paragraph 66
of the judgment the opinion that the scheme contained in the 1988
Order is such that "it is of paramount importance for the rights
of the defence that an accused has access to a lawyer at the
initial stages of police interrogation".  The paragraph concludes
by saying that to "deny access to a lawyer for the first 48 hours
of police questioning, in a situation where the rights of the
defence may well be irretrievably prejudiced, is - whatever the
justification for such denial - incompatible with the rights of
the accused under Article 6 (art. 6)".

5.       We consider the focus here to be misdirected.  It has
not been suggested that in the circumstances existing at the
relevant time in Northern Ireland it was unreasonable that a
power should be available to a senior police officer under
section 15 of the 1987 Act to delay access to a lawyer for a
period not exceeding 48 hours when he had reasonable grounds for
believing that earlier access would lead to interference with the
gathering of information about acts of terrorism or by alerting
any person would make more difficult the prevention of such an
act or the apprehension, prosecution or conviction of any person
in connection therewith.  As regards the exercise of the power,
the Court pointed out in Brannigan and McBride v. the United
Kingdom (judgment of 26 May 1993, Series A no. 258-B, p. 43,
para. 24, and p. 55, para. 64) that within the period of 48 hours
access to a solicitor can only be delayed where there exist
reasonable grounds for doing so.  "It is clear", the Court added,
"from judgments of the High Court in Northern Ireland that the
decision to delay access to a solicitor is susceptible to
judicial review and that in such proceedings the burden of
establishing reasonable grounds for doing so rests on the
authorities.  In these cases judicial review has been shown to
be a speedy and effective manner of ensuring that access to a
solicitor is not arbitrarily withheld ...".

6.       In the present case, as paragraph 65 of the judgment
observes, although the applicant now contests before the Court
the lawfulness of the exercise of the power to delay his access
to a lawyer, he did not seek to challenge such exercise by
instituting proceedings for judicial review.  The Court rightly
concludes that it has itself no reason to doubt that the exercise
of the power was lawful.

7.       In these circumstances, the question to be dealt with by
the Court, consistently with the approach followed in the earlier
part of the judgment, should in our view be whether, on the facts
of the case, the drawing of an inference from conduct on the part
of the applicant prior to his access to a solicitor rendered the
criminal proceedings against him - and especially his conviction
- unfair within the meaning of Article 6 (art. 6) of the
Convention.  As to this, it should be noted that the trial judge
had a discretion as to the drawing of inferences under the
1988 Order and in fact drew no inference against the applicant
under its Article 3.  The refusal of the applicant to give
evidence in his own defence when called upon at the trial to do
so, which formed the basis for the adverse inference drawn by the
trial judge under Article 4 of the 1988 Order, of course took
place at a time when legal advice had become available to him.
The issue therefore resolves itself into whether the drawing of
an inference 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 at 124 Carrigart Avenue when cautioned by
the police on the evening of 7 January 1990 - that is, before he
obtained access to a lawyer - rendered his trial and conviction
unfair.

8.       In this context the following should be recalled.

(a)      The caution given to the applicant on the evening of
7 January 1990 warned him quite clearly of the possibility of an
adverse inference being drawn form a failure or refusal on his
part to account for his presence at 124 Carrigart Avenue.  There
is no ground for believing that he failed to understand the
caution.

(b)      He nevertheless remained silent, both before and after
he obtained access to legal advice.  At no stage has he argued
that he would or could have provided an innocent explanation.

(c)      The applicant's silence in the period before he received
legal advice did not necessarily entail prejudice to his defence.
Articles 3 and 6 of the 1988 Order had become applicable as a
result of that silence, but whether adverse inferences would be
drawn at the trial was a matter for the judge (who, as has been
noted, drew no such inference under Article 3).  If the judge
were to be satisfied - as he might be, if for example the
applicant had offered an innocent explanation as soon as he had
consulted his solicitor - that in any particular set of
circumstances it would not be proper to draw an adverse
inference, he would not do so.  Clearly, in the present case, he
concluded in the exercise of his discretion that an Article 6
(art. 6) inference could properly be drawn.  No cogent reason has
been established for him to have concluded otherwise.

(d)      The adverse inferences drawn against the applicant by
reason of his conduct either before or after obtaining access to
a solicitor were far from being the sole or even main basis for
his conviction.  As paragraph 26 of the judgment recalls, the
Court of Appeal in Northern Ireland considered, for all the
reasons which it gave, that there was "a formidable case" against
him.

9.       Taking account of these factors, we conclude that the
applicant has failed to establish that, in the circumstances of
his case, the drawing of an inference against him by reason of
conduct on his part before he obtained access to legal advice
caused any unfairness in his trial and conviction.  We therefore
do not agree that the delay of access involved a violation of
Article 6 (art. 6).  We consider that the majority of the Court,
in making the linkage at paragraph 66 between "the scheme
contained in the Order" and the right of access to a lawyer,
strays unjustifiably far from the specific circumstances of the
instant case.

10.      To say this is not, of course, to dispute in any way the
desirability in principle of early access by an accused to legal
advice or that Article 6 (art. 6) may, as the Court found in
Imbrioscia v. Switzerland (see paragraph 62 of the judgment), be
relevant before a case is sent for trial so as to safeguard the
right to a fair hearing.

              PARTLY DISSENTING OPINION OF JUDGE PETTITI,
                       JOINED BY JUDGE VALTICOS

                             (Translation)

         I consider that there has been a breach of Article 6
paras. 1 and 2 (art. 6-1, art. 6-2) of the Convention.

         With the majority I voted in favour of holding that
there had been a breach of Article 6 para. 1 taken together with
paragraph 3 (c) (art. 6-1+art. 6-3-c), because the applicant was
denied access to a solicitor and the benefit of the effective
assistance of a lawyer, at least at the end of the period of
police custody.

         Nevertheless, on this point I note, in relation to
paragraph 66 of the judgment, that the British system, instead
of laying down in law the arrangements for access to a solicitor
during police custody, leaves the responsibility to the police
authorities.

         As regards the common-law procedural background, I agree
with the comments of Judge Walsh:

         "In a criminal prosecution the burden of proof of guilt
         beyond reasonable doubt always rests on the prosecution.
         Therefore a prima facie case means one in which the
         evidential material presented by the prosecution, if
         believed and not rebutted, is sufficient in law to
         establish the guilt of the accused.  In adjudicating on
         this point the trial judge need not at that stage
         disclose, or arrive at, his own view as to the truth but
         he must be satisfied that it is, if believed,
         objectively sufficient in law to warrant a verdict of
         guilty if not rebutted.

         ...

         To rely upon it afterwards appears to me to negative the
         whole intent of Article 6 para. 2 (art. 6-2).  To permit
         such a procedure is to permit a penalty to be imposed by
         a criminal court on an accused because he relies upon a
         procedural right guaranteed by the Convention.  I draw
         attention to the decision of the Supreme Court of the
         United States in Griffin v. State of California (1965)
         380 US, 609 ..."

         I refer, like Judge Walsh, to the decision of the
Northern Ireland Court of Appeal and to the Miranda decision
(United States Supreme Court).

         The right to silence is a major principle.

         Any constraint which has the effect of punishing the
exercise of this right, by drawing adverse inferences against the
accused, amounts to an infringement of the principle.

         The reasoning would be similar in the procedure of
continental legal systems.  The fact that the trial or appeal
court can base its judgment on its innermost conviction is no
obstacle to respecting the right to silence, since in its
reasoning the court could not derive, from the fact that the
accused had remained silent, any information amounting to
incriminating evidence.  A person charged is free to incur a risk
of his own choosing, just as he is free to confess or not to
confess, and this is a form of respect for human dignity.

         The principle also corresponds to the doctrine on
unlawfully or unfairly obtained evidence.  Similar findings have
been made in comparative law (see Procédures pénales en Europe,
ed. M. Delmas-Marty, Thémis, PUF).

         The level of certainty to be reached by the judge under
the "innermost conviction" system or the "beyond reasonable
doubt" system, which is essential in order to arrive at a fair
judgment, must not be achieved by a form of coercion to speak
that would lead to a confession.  Only in this way are the
presumption of innocence and the status of the accused fully
respected, both of which are central to the democratic conception
of a criminal trial.

               PARTLY DISSENTING OPINION OF JUDGE WALSH,
                 JOINED BY JUDGES MAKARCZYK AND LOHMUS

1.       In my opinion there have been violations of Article 6
paras. 1 and 2 (art. 6-1, art. 6-2) of the Convention.

         The applicant was by Article 6 para. 2 (art. 6-2)
guaranteed a presumption of innocence in the criminal trial of
which he complains.  Prior to the introduction of the Criminal
Evidence (Northern Ireland) Order 1988 a judge trying a case
without a jury could not lawfully draw an inference of guilt from
the fact that an accused person did not proclaim his innocence.
Equally in a trial with a jury it would have been contrary to law
to instruct the jurymen that they could do so (see the judgment
of the Northern Ireland Court of Appeal in the case of R.
v. Kevin Sean Murray).  In the same judgment the Northern Ireland
Court of Appeal held that the object and effect of the 1988 Order
was to reverse that position.

         In the judgment of the House of Lords in the R. v. Kevin
Sean Murray case which upheld the decision of the Northern
Ireland Court it was pointed out that the time for drawing such
inferences as the Order purported to permit was after the judge
was satisfied that the prosecution had established a prima facie
case of the guilt of the accused and that if it had not, the
accused must be acquitted.

         In a criminal prosecution the burden of proof of guilt
beyond reasonable doubt always rests on the prosecution.
Therefore a prima facie case means one in which the evidential
material presented by the prosecution, if believed and not
rebutted, is sufficient in law to establish the guilt of the
accused.  In adjudicating on this point the trial judge need not
at that stage disclose, or arrive at, his own view as to the
truth but he must be satisfied that it is, if believed,
objectively sufficient in law to warrant a verdict of guilty if
not rebutted.

         The verdict itself cannot be determined until after all
the evidence has been received by the court.

2.       It is obvious from the House of Lords decision in R. v.
Kevin Sean Murray that inferences which are not to be drawn until
a prima facie case has been established cannot form part of the
decision as to whether or not a prima facie case has been
established notwithstanding Article 3 of the Order.  Therefore
where the accused has maintained silence that fact cannot be
relied upon to establish a prima facie case.

3.       To rely upon it afterwards appears to me to negative the
whole intent of Article 6 para. 2 (art. 6-2).  To permit such a
procedure is to permit a penalty to be imposed by a criminal
court on an accused because he relies upon a procedural right
guaranteed by the Convention.  I draw attention to the decision
of the Supreme Court of the United States in Griffin v. State of
California (1965) 380 US, 609, which dealt with a similar point
in relation to the Fifth Amendment of the Constitution by
striking down a Californian law which permitted a court to make
adverse comment on the accused's decision not to testify.

         In Miranda v. Arizona (1966) 384 US, 436, the US Supreme
Court affirmed that the constitutional protection against
self-incrimination contained in the Fifth Amendment guarantees
to the individual the "right to remain silent unless he chooses
to speak in the unfettered exercise of his own free will" whether
during custodial interrogation or in court.

         This Court in its judgment in Funke v. France (Series A
no. 256-A) said that "the special features of customs law ...
cannot justify ... an infringement of the right of anyone
'charged with a criminal offence', within the autonomous meaning
of this expression in Article 6 (art. 6), to remain silent and
not to contribute to incriminating himself" (p. 22, para. 44).

4.       I am in agreement with the majority that the refusal to
permit the applicant to have his lawyer present when he had so
requested was also a breach of Article 6 (art. 6).  To round off
the account of the circumstances of the applicants pre-trial
experiences it is to be noted that the facts of the case reveal
a clear breach of Article 5 para. 3 (art. 5-3) of the Convention.

5.       For the above reasons I have concluded that there has
also been a breach of Article 6 para. 2 (art. 6-2).