THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 35718/97

by William and Karen CONDRON

against the United Kingdom

The European Court of Human Rights (Third Section) sitting on 7 September 1999 as a Chamber composed of

Mr J-P. Costa, President,

Sir Nicolas Bratza,

Mr L. Loucaides,

Mr P. Kūris,

Mr W. Fuhrmann,

Mrs H.S. Greve,

Mr K. Traja, Judges,

with Mrs S. Dollé, Section Registrar;

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 13 November 1996 by William and Karen Condron against the United Kingdom and registered on 23 April 1997 under file no. 35718/97;

Having regard to the reports provided for in Rule 49 of the Rules of Court;

Having regard to the observations submitted by the respondent Government on 27 March 1998 and the observations in reply submitted by the applicants on 31 July 1998;

Having deliberated;

Decides as follows:

 

THE FACTS

The first applicant, William Condron, is an Irish citizen, born in 1965. He is married to the second applicant, Karen Condron, a British citizen, born in 1963.

They are represented before the Court by Mr John Wadham, a solicitor at Liberty, a non-governmental human rights organisation based in London.

A. Particular circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

Both applicants are admitted heroin addicts. Prior to their being charged and sentenced for drugs offences they lived at 51 Cubitt House, a large block of council flats in South London. Adjacent to their flat, at flat no. 50, lived a Mr James Curtis. Mr Curtis was also charged with the same offences as the applicants, namely being concerned with the supply of heroin and possession of heroin with intent to supply, but was acquitted.

The prosecution case was that the applicants would prepare wraps (individual sachets) of heroin for sale and pass them to Mr Curtis when he knocked on the back window of their flat whenever he had a purchaser. The prosecution alleged that wraps would be handed from the balcony at flat 51 to someone leaning out of the back window of flat 50. Mr Curtis would then sell the wraps to visitors to his flat.

The applicants and Mr Curtis were observed from 24 to 28 April 1995 by police and recorded on video from 25 April 1995 onwards. The applicants were seen to pass various items to Mr Curtis including a plastic bottle for smoking crack cocaine and silver foil for smoking heroin. The prosecution stated that on 26 April 1995 a man was seen at the back window of flat 50 handing an object which looked like a cigarette packet to the second applicant who was on her balcony. She went into her flat, then re-emerged and returned the packet to the man.

The applicants were arrested at 12.45 p.m. on 28 April 1995. In the flat were found 16 wraps of heroin weighing between 0.07 and 0.09 g and a further quantity of heroin weighing 1.19 g. The prosecution also alleged that a polythene sheet in the flat had been used to make wraps.

At 10.40 a.m. on 29 April 1995 the applicants’ solicitor, Mr Delbourgo, noted that the first applicant, who seemed to be in the early stages of withdrawal, was unfit to be interviewed. However, after a 10 to 15-minute examination the Force Medical Examiner, Dr Youlten, stated that the subject was fit for interview. The doctor’s report notes that the first applicant was an opiates addict with symptoms and signs of withdrawal but that he was “thinking clearly, able to answer questions”. The second applicant was also seen to have withdrawal symptoms but again was stated by the Force Medical Examiner to be “thinking clearly” and “able to answer questions”.

The transcript of the interviews with the first applicant reveals that Mr Delbourgo was concerned that his clients were unfit to be interviewed and in some distress. In particular, he had found it difficult to get the second applicant to concentrate on what he was saying to her.

The applicants were interviewed separately in the presence of their solicitor. Both applicants were told by the police that:

“You do not have to say anything but it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you say may be given in evidence.”

The applicants stated that they understood the warning. The applicants were advised by the police that if during the interview they felt unwell they should say so and the interview would be stopped. At no stage during interview did either of the applicants request this, even though at one point the first applicant’s solicitor specifically suggested that this might happen. However, the first applicant expressly stated that he did not want the interview to stop.

The applicants were asked to explain their actions in apparently passing to, and being passed items from, flat 50. Both simply responded to these questions with the words “no comment”.

From 16 October to 2 November 1995 the applicants were tried before a jury at Kingston Crown Court. Both applicants were legally aided and represented by counsel. In a pre-trial hearing counsel for the applicants argued that the interviews should not be put before the jury as they had been carried out whilst the applicants were suffering from drug withdrawal symptoms. Their solicitor, Mr Delbourgo, testified that he had been of the firm view that neither should embark upon what might prove to be a very lengthy interview given their condition. However, the judge noted that the doctor had considered them fit to be interviewed, “that they were thinking clearly and able to answer questions” and that both applicants had stated in response to direct questions that they understood the charges against them and the possible repercussions of failing to answer questions. He therefore considered that Mr Delbourgo had been wrong in his analysis that the applicants had been unfit to be questioned and allowed their interviews to stand as evidence. The judge further observed that the interviews had been short and were not conducted in an oppressive manner. He noted that in any event the application to exclude the evidence was premature since the defendants had not given evidence so that it was not clear what facts were going to be relied on in their defence which might reasonably have been expected to have been mentioned. Moreover, it was a matter for the jury, properly directed, to determine the issues.

Both applicants gave evidence at the trial and said that the heroin found in the flat had been for their own personal use and had been purchased in bulk by the first applicant the evening before their arrest. They stated that the polythene sheet had been planted there by the police after they had been brought to the police station. When asked about the incident recorded on 26 April 1995 in which the second applicant was seen receiving and then returning a packet to the occupant of flat 50, the applicants gave explanations which they had not mentioned to the police in their interviews. The first applicant stated that no drugs had ever passed between the flats and that the packet contained either cigarettes or money whilst the second applicant stated that it was simply an exchange of a packet of cigarettes. Other items had been passed this way since it was easier than having to go along the walkway of the front of each flat.

The applicants’ co-accused, Mr Curtis, testified at the trial that the applicants had never given him heroin. He confirmed the applicants’ account of their friendship with him and his frequent borrowing, with communication being by the balcony. When he was arrested he was told that he would not get bail which made him angry and “bloody minded” so he decided not to help the police by answering their questions.

When asked why they had made no comment to police questions during interview, both applicants stated that their solicitor’s advice that they were not in a condition to do so given their withdrawal from heroin had been conclusive.

In his summing up the judge made reference to the jury’s ability to draw inferences from the silence of the defendants:

“I turn to a new topic in our law ... It is the law that these defendants did not mention certain facts when questioned about them in interview by the police. In the past that would not have been evidence that could in any way be held against them but now it is possible that it can be though it is for you to judge whether in fact you do hold it against them.

[The first applicant] has relied in evidence on an explanation as to the passing of that cigarette packet, which is the subject of count 1. ... Firstly, it could have been cigarettes or it could have been money. He also said in evidence to you, ‘There were no drugs ever passed through our hands to Curtis’. He admits that he did not mention that when questioned under caution before being charged...

I turn now to [the second applicant] because she has relied in her own evidence on the fact that she had asked for cigarettes and was passed a packet, took a couple, and handed the packet back. She admits that she did not mention that when she was questioned under caution before being charged. ... Also in [the second applicant’s] interview she was asked about another matter, and I deal with this because in her evidence she relied on the fact that on 26 April at 11.30 a.m., a little before the incident with the cigarette packet, she handed Curtis some ‘sticky chewing gum’ ... so the chewing gum is again not mentioned. ... She also in the course of her evidence relies on her telling you that there were only innocent, neighbourly exchanges of commonplace items from her balcony and she admits that she never mentioned those matters to the police...

The prosecution case, members of the jury, is that (and it is for you to judge whether this assists you in your judgment to reach a verdict) in the circumstances when each of these defendants were questioned on these topics, he or she could reasonably be expected to have mentioned what they said in court. The defendants explained that their ‘no comment’ answers, speaking generally because of course they put it in more detail, the [applicants] said they were suffering from withdrawal symptoms and relied on Mr Delbourgo, their solicitor’s advice that he could see they were suffering from withdrawal symptoms and should not answer questions because in his judgment of their appearance they were unfit for interview despite the known and expressed view of the FME, which means Force Medical Examiner and is in fact a doctor, who comes along to police stations to deal with problems of this sort...

The law is ... that you may draw such inferences as appear proper from a defendant’s failure to mention the points I have referred to in their respective interviews. In each case it is relevant only to the case against the defendant concerned. You do not have to hold it against him or her. It is for you to decide whether it is proper to do so. Failure to mention the points in interview cannot on its own prove guilt but depending on the circumstances you may hold it against him or her when deciding whether he or she is guilty. You should decide whether in the circumstances which existed at the time of the interview the matters were ones which the defendant concerned could reasonably be expected then to mention. Members of the jury that is all I have to say at this stage about the law.”

The applicants were each convicted by a majority of nine to one of being concerned in supplying heroin and possessing heroin with intent to supply. The first applicant was sentenced to a total of four years’ imprisonment. The second applicant was sentenced to a total of three years’ imprisonment. James Curtis, the co-accused, was acquitted of both charges.

The applicants appealed to the Court of Appeal on two primary grounds: the inclusion of the police interviews and the contents of the judge’s direction.

The applicants’ counsel contended before the Court of Appeal that the trial judge should have excluded the “no comment” interviews as they were a direct result of following their solicitor’s honest advice. The Court of Appeal pointed to problems with that argument in situations where solicitors advised their clients tactically or dishonestly to refuse to answer questions; the key question was the subjective reason why the applicants had not answered the questions. The Court of Appeal went on to find that the judge, as the fact-finding tribunal in the voir dire, had been correct in his decision to include the notes of interviews in evidence.

The Court of Appeal rejected the submission that the trial judge has been wrong to allow the jury to draw adverse inferences from the applicants’ failure to answer questions at the interview. Lord Justice Stuart-Smith stated on this point:

“... both [applicants] knew that the Force Medical Examiner certified that they were fit to be interviewed and therefore that medical opinion differed from that of their solicitor. Both were clearly advised by their solicitor that if they failed to mention material facts at the proposed interview, they could be criticised if the matter came to trial. That advice was understood; he also made it plain that this was entirely their choice. At the beginning of the interview both were given the caution in its current form. ... Both indicated that they understood that caution. Both were told that if they felt unwell during the interview, they could let the interviewer know and it could be stopped. In these circumstances the fact-finding tribunal might well consider that if the [applicants] had an innocent explanation of the incriminating evidence about which they were specifically questioned, they would have mentioned it.”

The Court of Appeal then considered the applicants’ criticism of the trial judge’s summing up as to the relevance of their failure to refer to matters at the interview. The Court of Appeal considered that the summing up was deficient in that the jury should have been told that the proper direction was:

“If despite any evidence relied upon to explain his silence or in the absence of any such evidence, the jury conclude the silence can only sensibly be attributed to the defendant’s having no answer or none that would stand up to cross-examination, they may draw an adverse inference.”

However, the Court of Appeal did not find that this lacuna in the summing-up meant that the convictions were unsafe, having regard to the weight of the other evidence. Lord Justice Stuart-Smith explained in this connection:

“We have already referred to the substantial, almost overwhelming evidence of drug supply from what was found in the [applicants’] house. Although there were no scales, all of the other paraphernalia of supply was present. All but one of the jury must have rejected the [applicants’] explanation of the police observations, much of which was recorded on video, the presence of the matching wraps in Curtis’ flat and the elaborate security arrangements at the applicants’ own flat. The acquittal of Curtis shows that the jury regarded the evidence of the interviews as insignificant. Curtis also failed to answer questions in interview.”

The Court of Appeal dismissed the applicants’ appeal in its judgment delivered on 17 October 1996.

B. Relevant domestic law

Section 34 of the Criminal Justice and Public Order Act 1994 provides that:

“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 under caution 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)  ...

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, subsection (2) below applies.

2.  Where this subsection applies ...

(d)  the court or jury, in determining whether the accused is guilty of the offence charged,

may draw such inferences from the failure as appear proper.

 

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.”

Section 38 (3) adds that:

“A person shall not ... be convicted of an offence solely on an inference drawn from such a failure or refusal as is mentioned in section 34(2)...”

Guidance as to the direction which the judge should give the jury in respect of section 34 of the Criminal Justice and Public Order Act 1994 are provided by the Judicial Studies Board specimen directions and by the dicta of Lord Taylor CJ in R v. Cowan [1996] 1 Criminal Appeal Reports 1, which was specifically approved by the Court of Appeal in the instant case.

The Judicial Studies Board guideline direction at the time of the Court of Appeal’s consideration of the applicant’s appeal provided that:

“If he failed to mention ... when he was questioned, decide whether in the circumstances which existed at the time, it was a fact which he could reasonably have been expected then to mention.

The law is that you may draw such inferences as appear proper from his failure to mention it at that time. You do not have to hold it against him. It is for you to decide whether it is proper to do so. Failure to mention such a fact at that time cannot, on its own, prove guilt, but depending on the circumstances, you may hold that failure against him when deciding whether he is guilty, that is, take into account as some additional support for the prosecution’s case. It is for you to decide whether it is fair to do so.”

The dicta of Lord Taylor CJ are as follows:

“We consider that the specimen direction is in general terms a sound guide. It may be necessary to adapt it to the particular circumstances of an individual case. But there are certain essentials which we would highlight:

1.  The judge will have told the jury that the burden of proof remains upon the prosecution throughout and what the standard required is.

2.  It is necessary for the judge to make clear to the jury that the defendant is entitled to remain silent. That is his right and his choice.

3.  An inference from failure to give evidence cannot on its own prove guilt. That is expressly stated in section 38(3) of the Act.

 

4.  Therefore, the jury must be satisfied that the prosecution have established a case to answer before drawing any inferences from silence. Of course, the judge must have thought so or the question whether the defendant was to give evidence would not have arisen. But the jury may not believe the witnesses whose evidence the judge considered sufficient to raise a prima facie case. It must therefore be made clear to them that they must find there to be a case to answer on the prosecution evidence before drawing an adverse inference from the defendant’s silence.

5.  If despite any evidence relied upon to explain his silence or in the absence of any such evidence, the jury conclude the silence can only sensibly be attributed to the defendant’s having no answer or none that would stand up to cross-examination, they may draw an adverse inference.”

The current specimen direction for section 34, up-dated in the light of the judgments of the Court of Appeal in R v. Cowan and in the instant case, provides:

“If you are sure that he did fail to mention [specific matters] when he was questioned, decide whether in the circumstances it was a fact which he could reasonably have been expected then to mention. If it was, the law is that you may draw such inferences as appear proper from his failure to mention this matter at the time.

Failure to mention such a fact cannot, on its own, prove guilt, but depending on the circumstances, you may hold it against him when deciding whether he is guilty, that is, take it into account as some additional support for the prosecution’s case. You are not bound to do so. It is for you to decide whether it is fair to do so.

There is evidence before you on the basis of which the defendant’s advocate invites you not to hold it against him that he failed to mention this. That evidence is... If you think that this amounts to a reason why you should not hold the defendant’s failure against him, do not do so. On the other hand, if it does not in your judgment provide an adequate explanation, or if you are sure that the real reason for his failure to mention this fact was that he then had no innocent explanation to offer, you may hold it against him.”

COMPLAINTS

The applicants invoke Article 6 §§ 1, 2 and 3 (b) and (c) of the Convention. In particular, the applicants claim that they have been denied their right to a fair trial as vital procedural safeguards were missing: first, the jury rather than the judge drew inferences from their silence and secondly, the jury did not provide a reasoned judgment susceptible to scrutiny on appeal. The applicants also complain that the trial judge gave inadequate directions as to the extent to which the jury could draw inferences in circumstances where the applicants’ solicitor genuinely believed that they were not fit to be interviewed and advised them that they should not answer questions. The applicants contend that the judge failed to direct the jury to consider the applicants’ subjective reasons for refusing to answer police questions in light of their lawyer’s guidance.

 

PROCEDURE

The application was introduced on 13 November 1996 and registered on 23 April 1997.

On 14 January 1998 the European Commission of Human Rights decided to communicate the application to the respondent Government.

The Government’s written observations were submitted on 27 March 1998. The applicants replied on 31 July 1998, after an extension of the time-limit.

On 1 November 1998, by operation of Article 5 § 2 of Protocol No. 11 to the Convention, the case fell to be examined by the Court in accordance with the provisions of that Protocol.

THE LAW

The applicants contend that they were denied a fair trial in breach of Article 6 of the Convention which provides as relevant:

“1.  In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing...

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

1. As to the applicants’ complaint under Article 6 § 1 of the Convention

The applicants maintain that the trial judge left the jury with the option of drawing adverse inferences from their silence during police interviews. However, being an inexpert tribunal which did not give reasons for its decisions, it was impossible to ascertain if the jury drew improper inferences in the circumstances. In any event, the trial judge’s directions on this issue were inadequate since they overlooked the fact that the applicants had held their silence on the strength of their solicitor’s advice. On that understanding their silence could not, as a matter of common sense, be construed as probative of guilt.

The Government, with reference to the principles laid down in the Court’s John Murray v. the United Kingdom judgment (Reports of Judgments and Decisions 1996-I), stress that the applicants in the instant case enjoyed sufficient procedural safeguards under English law against unfairness even though, unlike Mr Murray, a jury rather than a judge drew inferences from their silence and did not provide written reasons for its decision.

The Government emphasise that the police administered a clear statutory warning to the applicants before they were questioned and both applicants acknowledged that they understood its implications and the allegations against them. Their solicitor was present 
 

 

during interview and he too explained to them the nature of the statutory warning. There was no compulsion on the applicants to answer the questions put to them by the police and they were advised that if during the interview they felt unwell they should say so and the interview would be stopped. At no stage did either of the applicants make such a request, even though at one point the first applicant’s solicitor specifically suggested that the interview may have to be stopped. However, the first applicant expressly stated that he did not want the interview stopped.

The Government further maintain that if the applicants’ silence was due, or may have been due, to them not understanding the consequences of silence because of withdrawal symptoms, then an adverse inference would not have been drawn under English law. The Government highlight in this connection that the Court of Appeal specifically rejected the applicants’ argument that they were unable to understand the consequences of remaining silent because of withdrawal symptoms, and upheld the trial judge’s finding that the doctor’s assessment that they were fit to be interviewed was to be preferred to their solicitor’s view of their condition at the time.

The Government also draw attention to the fact that a jury has to be given directions in respect of many aspects of criminal trial, including the relevance and weight to be attached to evidence and the ingredients of the offence with which an accused is charged. The jury does not give reasons for the decisions it reaches on such matters. Thus, there is no reason to doubt that a properly directed jury can be fairly entrusted with the issue of whether it is proper to draw adverse inferences from an accused’s silence during interview. In the instant case the applicants received a fair trial even though the trial judge failed to give the jury a proper direction on the correct approach to the drawing of inferences. They highlight in this respect that the Court of Appeal concluded that the applicants’ conviction was safe despite the lacuna in the trial judge’s direction, having regard to the fact that there was almost overwhelming evidence against the applicants.

The applicants submit that the warning administered to them by the police was vague and unspecific, all the more so since they were withdrawing from heroin at the time. The applicants might well have concluded in their confusion that reliance on their solicitor’s advice to remain silent would not jeopardise their defence. They maintain that, even if the trial judge had properly directed the jury in accordance with standard practice, this would not have cured the deficiencies of the warning given at the time of interview. In their submission the Court of Appeal did not subject to scrutiny and test the adequacy of the vague warning given by the police. Thus, the Court of Appeal did not take into account the fact that the applicants were withdrawing from heroin or that their confusion may have been aggravated by the fact that their solicitor strongly advised them to remain silent immediately after explaining to them the effect of the statutory warning. The applicants aver that the Court of Appeal mistakenly concluded that they understood their solicitor’s advice as regards the drawing of adverse inferences, whereas their solicitor had in fact testified at the trial that he had had doubts as to whether the first applicant understood the implications of their remaining silent. In addition, the Court of Appeal, like the trial judge, erred in directing their attention to the question of whether the applicants were fit to be interviewed by the police. In the applicants’ submission the real issue that had to be addressed was not whether the Force Medical Examiner’s assessment of their condition was to be preferred to that of their solicitor, but the identification of the reason operating on the applicants’ minds for not answering questions, and whether that reason was the advice which their solicitor had given them.

In furtherance of their assertion that the judge’s misdirection was not cured on appeal, the applicants insist that the Government’s reliance on the acquittal of the co-accused, Mr Curtis, does not indicate that the jury attached little weight to their silence in finding them guilty. They claim that there is an apparent inconsistency in that they were convicted of supplying heroin although an essential element in the chain of supply, namely the role of Mr Curtis, was not proven. In their submission an explanation may lie in the part that the drawing of adverse inferences played in the jury’s deliberations. Mr Curtis stated at the trial that he remained silent during interview on account of the fact that the police informed him that he would not be granted bail. The jury may have accepted this reason, in which case no inference would have been drawn. Accordingly, the inferences may well have proved decisive in the conviction of the applicants and the acquittal of Mr Curtis. In these circumstances the Court of Appeal’s review cannot be said to have remedied the defects in the trial itself.

2. As to the applicants’ complaint under Article 6 § 2 of the Convention

The applicants assert, with reference to their submissions under their Article 6 § 1 complaint, that there were in effect compelled to answer questions since the trial judge allowed the jury to draw an adverse inference in circumstances where they remained silent on the basis of their solicitor’s advice. This undermined their right not to incriminate themselves in breach of Article 6 § 2 of the Convention, which guarantees the presumption of innocence.

The Government rely on their submissions under Article 6 § 1 to refute this argument.

3. As to the applicants’ complaint under Article 6 § 3 (b) and (c) of the Convention

The applicants assert that the trial judge’s direction in effect left the jury free to draw adverse inferences even though they concluded that the applicants refused to answer police questions solely in reliance on their solicitor’s advice. They invoke Article 6 § 3 (b) and (c) of the Convention which provide as relevant:

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

(b)  to have adequate time and facilities for the preparation of his defence;

(c)  to defend himself ... through legal assistance of his own choosing...”

The applicants submit that there is an overwhelming need to exercise caution in drawing adverse inferences when the explanation for a defendant’s silence in the face of police questioning is that he was following legal advice. They maintain that inferences are drawn in circumstances where the matters which lead to the drawing of an inference have an evidentially probative value. However, none arises from silence which is the result of reliance on advice given by a lawyer to say nothing in response to police questions. 

 

The Government refer to their submissions in response to the applicants’ complaint under Article 6 § 1 of the Convention. They further submit that Article 6 § 3 (b) and (c) has no bearing on the circumstances of the applicants’ case which involves the distinct question of the relevance in assessing guilt of a refusal to answer questions at interview, even where that is based on legal advice. That issue falls to be examined under Article 6 §§ 1 and 2 of the Convention.

4. The Court’s conclusion

The Court considers, in the light of the parties’ submissions, that the above complaints raise complex issues of law and fact under the Convention, the determination of which should depend on an examination of the merits. The Court concludes, therefore, that the application is not manifestly ill-founded, within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION ADMISSIBLE, without prejudging the merits of the case.

S. Dollé J.-P. Costa

Registrar President

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