AS TO THE ADMISSIBILITY OF
Application no. 8535/02
by David Jason COGHLAN
against the United Kingdom
The European Court of Human Rights (Fourth Section), sitting on 29 November 2005 as a Chamber composed of:
Mr J. Casadevall, President,
Sir Nicolas Bratza,
Mr M. Pellonpää,
Mr R. Maruste,
Mr K. Traja,
Ms L. Mijović,
Mr J. Šikuta, judges,
and Mr M. O’Boyle, Section Registrar,
Having regard to the above application lodged on 28 March 2001,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
The applicant, Mr David Jason Coghlan, is a United Kingdom national, who was born in 1970 and is currently detained in HMP Full Sutton, Yorkshire. He was represented before the Court by Mr J. Welch, Legal Director of Liberty, a non-governmental civil liberties organisation based in London.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
On 6 April 1999 a post office was held up by an armed robber. Later that evening, a man, DA, approached the police claiming that he had been forced at gunpoint by two men to drive his car away from the area that day. However, the police suspected that DA had been a voluntary ‘get away’ driver for the robbery, searched his house and found letters from the applicant addressed to DA. They suspected that the applicant was the armed robber and arrested him on 14 April 1999.
On 15 April 1999 the applicant was interviewed by the police. At the start of the interview the police explained the applicant’s legal rights and gave him a caution in the following terms:
“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 transcript of the interview then has the following note:
“[The applicant] states that after consulting his solicitor he has elected to make no comment to any questions.”
The police officer leading the interview explained the caution and then commenced the interview. The applicant was questioned about the robbery and he made no comment. He was released without charge and agreed to attend an identification parade.
On 29 April 1999, at the identification parade, one of five witnesses picked out the applicant as the assailant. The other witnesses picked out volunteers or could not pick out anyone. The applicant was interviewed for a second time after the identification parade and again refused to comment. He was then charged with robbery and remanded in custody.
On 4 May 1999 the applicant escaped from a remand hearing before the Magistrates’ Court. As he was being taken to the cells, the applicant threw away his crutches (he had alleged that he had sustained a leg injury in prison), vaulted over the dock and ran out through the Magistrates’ retiring room. He got away by smashing open a fire escape. He was re-arrested on 20 May 1999 and held thereafter in Category A security conditions.
The trial of the applicant and DA was held in the Crown Court from 7 to 14 February 2000. The prosecution case was that the applicant was the armed robber and DA was the ‘get away’ driver.
Given the applicant’s Category A security status, he was handcuffed for transfer to and on arrival in the Crown Court. The trial judge rejected a prosecution application that he remain handcuffed during his trial.
The trial judge granted the prosecution application for a number of other security measures despite the applicant’s objections. Two police officers sat in court in front of the dock in standard street uniform (including a belt equipped with a baton, mace spray and handcuffs). Three prison officers were immediately behind the applicant in the dock and one prison officer sat beside him. DA had one security officer sitting next to him. Another security officer sat next to the door to the cells. The trial judge rejected the applicant’s suggestion that the police officers could sit in the public gallery near to the door of the courtroom with their equipment not visible to the jury. He noted that the police officers were required to have those items on them and that it was a matter of “health and safety” for the officers concerned. He considered that jurors were used to seeing police officers dressed that way in public. The trial judge also rejected the defence submission that the security arrangements were out of proportion to the risk involved and created a grave prejudice for the applicant given the difference in security applicable to each of the co-accused.
The applicant then applied for the exclusion of the evidence from the police interviews. Evidence concerning the second police interview (after the identification parade) was excluded as the police had already decided to charge the applicant and therefore had no grounds to interview him (Code of Practice C of the Police and Criminal Evidence Act 1984). However, the application to exclude evidence from the first police interview was refused.
At the end of the prosecution case, the applicant submitted that there was no case to answer on the grounds that the only evidence against him was identification evidence of poor quality. This was rejected by the trial judge in a ruling of 10 February 2000, finding that the identification evidence could not be characterised as of poor quality and that there was significant other evidence against the applicant, including the fact that the applicant was a friend of DA, whom the prosecution had reason to believe was the ‘get away’ driver. The trial therefore continued.
The applicant gave evidence in his defence and offered an alibi for the day of the robbery. He stated that he had been working at the time of the robbery in a kitchen company in a different town and therefore could not have committed the robbery. When questioned by prosecution counsel (Mr O’B) on why he had not revealed his alibi to the police when interviewed, the applicant initially submitted that he had not mentioned it because he was not declaring his earnings for tax purposes. However, when the prosecution persisted with this line of questioning, the applicant began to explain that he had been advised by his solicitor not to answer questions during the police interview. Prosecution counsel interrupted the applicant and told him that he was not entitled to know what the applicant’s solicitor had said to him:
“Q: Are you saying to the jury that because you were embarrassed for a relatively small amount of tax not paid you deliberately decided not to tell the police where, in fact, you’d been that day?
A: Not at all. What I’m telling you is that it was a factor but the main factor is when a solicitor who’s experienced in these matters came to see me ---.
Q: I don’t want you to tell me ---.
A: --- police ---.
Q: --- because I’m not entitled to know what your solicitor said to you so just ... I ---
Q: If that’s what you’re gonna do, please stop because I’m not entitled to know.
Q: All right Mr Coghlan but if you’re going to say something else, don’t let me stop you.
A: No I was gonna explain to you what you told me to ...”
At this point, the judge intervened and requested defence counsel and the applicant to attend a voire dire in the absence of the jury in order to agree the position on whether privilege between the applicant and his solicitor would be waived if the applicant disclosed to the court the advice which his solicitor had given him. The transcript of the voire dire is reproduced below (Mr H was defence counsel):
JUDGE O: ... In a sense, of course, Mr. O’B is perfectly correct from stopping the defendant from saying what passed between his solicitor and him particularly since you were scrupulously careful not to canvass precisely the same ground.
MR H: And, indeed, forgive me for interrupting, your honour will recall my friend Mr. Carey who was then acting for him was called. He was only asked matters which in no way would breach privilege.
JUDGE O: Correct but, of course, the defendant is perfectly entitled to tell us what passed between him and his solicitor if he wants to.
MR H: Yes your honour.
JUDGE O: And in that sense Mr O’B can’t stop him if he wants to.
MR H: Indeed.
JUDGE O: But I just want the defendant to understand that if he does want to tell us, of course, he does waive the privilege and he can then be asked further questions. I’m sure he understands that perfectly well.
MR H: Not only that but it is conceivable that my learned friend might be entitled to ask for the recall of the solicitor.
JUDGE O: Yes.
MR H: And he will be cross-examined about a much wider range of matters. I’m sorry I’m interrupting your honour.
JUDGE O: No, no I just want to be completely clear that you have explained this position to Mr Coghlan and he understands the position.
MR H: Your honour I have certainly explained it. I hope he understands it. The extent to which the solicitor can be asked questions assuming privilege is waived is, I would submit, something of a grey area but perhaps we don’t need to go that far at this stage.
JUDGE O: No that’s quite correct, thank you.
MR H: But I have explained the consequences to Mr Coghlan.
JUDGE O: Right.
MR H: ---should he choose to discuss what passed between him and the solicitor.
JUDGE O: Right. Right. Thank you. You understand the position Mr Coghlan do you? That ... just stand up a moment. That Mr O’B cannot ask you what passed between you and your solicitor.
THE DEFENDANT COGHLAN: Right sir.
JUDGE O: But you are ... if you want to tell him what passed between you and the solicitor, you are quite entitled to do so but if you start the ball rolling in that way, you can be asked questions, do you follow me? That is why your own counsel did not ask those questions.
THE DEFENDANT COGHLAN: Right. Am I ---
JUDGE O: So the choice is entirely yours but if you start to tell us what passed between you and your solicitor and the other way round, then you remove the privilege that otherwise would attach and you can be asked further questions. Am I making myself clear?
THE DEFENDANT COGHLAN: Right.
MR H: Your honour I think now that that’s been made clear to Mr. Coghlan, we’re in a position to continue.
JUDGE O: Yes.
MR H: Would your honour think it appropriate just to say something however brief to the jury to explain why we’ve had this short interruption in his evidence?
JUDGE O: (After a brief pause) If ... I’m quite prepared to do that but is that a good idea?
MR H: Your honour on reflection probably not.
JUDGE O: No, that’s my assessment.
MR H: Grateful.
JUDGE O: Thank you.”
Following the voire dire, the cross-examination of the applicant by prosecution counsel resumed in open court and the applicant did not state in evidence that he had remained silent in the police interview on the advice of his solicitor. The following exchange took place as regards the reason the applicant had not mentioned his alibi during that interview:
“MR O’B: ...Now, Mr. Coghlan, I was simply asking you this, you may remember just to bring us back to where we were before, that the amount of money involved so far as non payment was not great, the police were, as you would have it, falsely accusing you of being involved in an armed robbery and the question I was going to ask you is this: the fact you didn’t pay tax pales into insignificance doesn’t it in relation to the serious allegation being made against you?
A: Yes sir.
A: With 20/20 hindsight as I’ve said, if I’d have know I’d be land ... I’d eventually land here today running for me life I wouldn’t obviously never have gone down the road I did.
Q: But you made a conscious decision didn’t you? You decided not to for whatever reason, you decided not to?
Q: Even though you recognised the serious position potentially you were in then? I’m looking back to 15th April.
A: Not gonna concede that I really did recognise the potentially serious position I was in then, sir, no. As far as I was concerned there was no chance in the world that I could be picked out by somebody for being somewhere I wasn’t which is why I agreed to help the police with their enquiries to be eliminated by going on the identification parade which is what I did.
Q: And is that the truth you decided not to tell about the money and the job?
A: Yes, sir.”
At the end of the trial, the judge directed the jury on the question of drawing adverse inferences from the applicant’s failure to mention his alibi during the police interview. Not mentioning that the applicant had remained silent on the advice of his solicitor, the trial judge directed as follows:
“The [applicant] as part of his defence has relied upon this alibi. He admits that he didn’t mention it when first ... well didn’t mention it, in fact, at all when questioned by the police. The prosecution case is that in the circumstances and having regard to the warning which had been given, if this alibi had been true, he could reasonably have been expected to mention it at the stage that he was interviewed. As he did not do so, you may, therefore, conclude, say the prosecution, that it has since been invented.
It is for you to decide whether in the circumstances the mentioning of the alibi was something which could reasonably have been expected of him at that time. If it was, the law is that you may draw such inferences as appear proper from his failure to do so.
I’ve made clear to you, members of the jury, failure to mention an alibi at the time cannot, of course, on its own prove guilt but if you’re sure that quite regardless of this failure, that there is a case for him to meet, it is something which you are entitled to take into account when deciding whether his evidence about this matter is true. That is to say you may 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.
The [applicant] has given an explanation for not giving this alibi at the time. He said that at first he couldn’t remember and didn’t know where he had been and then later when he realised that he had been working for [Mr. G], he said that naively and stupidly he didn’t want to declare the fact that he’d been paid cash in hand, something that would put him and [Mr. G] in trouble with the tax authorities.
That is the [applicant’s] explanation for not mentioning the alibi at this time. If you think that this amounts to a reason why you should not hold the [applicant’s] failure to mention it against him, then of course, you must not do so. If, on the other hand, it does not in your judgement provide an adequate explanation, if you are sure that the real reason for his failure was that he had no innocent explanation to offer in relation to this aspect of the case, well then you may hold it against him.”
The trial judge also noted the security arrangements in his directions to the jury, providing as follows:
“You must consider and evaluate [the applicant’s] evidence in precisely the same way as every other witness. It carries no less weight because he comes from the dock or because he is afforded the degree of security appropriate to the seriousness of this case.”.
On 14 February 2000 the applicant was convicted of robbery and was sentenced to 12 years’ imprisonment.
The applicant applied for leave to appeal against conviction and an extension of time for this purpose. He appealed on the grounds, inter alia, that the security arrangements during the trial caused unnecessary prejudice to him, that the trial judge was wrong to reject the submission that there was no case to answer and that the trial judge wrongly directed the jury that they could draw adverse inferences from the applicant’s failure to answer questions at the police interview.
On 6 July 2000 a single judge of the Court of Appeal refused the application for leave to appeal. He ruled that the jury would not be familiar with the degree of security commonly employed in the Crown Court and that the trial judge had “gone out of his way to say that” the security arrangements “were appropriate to the charge”. The single judge decided that the trial judge had not erred in rejecting the submission that there was no case to answer and that “it was plainly a matter for the jury whether the silence was adequately explained”.
On 23 March 2001 the full Court of Appeal refused the renewed application for leave to appeal. The applicant had briefed another barrister for his appeal.
As to the security arrangements at trial, the Court of Appeal noted the applicant’s prior escape from the Magistrates’ Court and consequent Category A status. It found that the trial judge had properly exercised his discretion as regards the security measures. In particular, the court did not accept the applicant’s suggestion that the police officers could have been placed away from the applicant but near the courtroom doors: it could not have been foreseen from where an accused would try to make his escape. The policemen wore the same uniform and equipment as a juror would see everyday on the street and policemen commonly gave evidence in court so-dressed. The number of prison officers in the dock with the applicant did not detract from the court’s conclusion that the trial judge properly exercised his discretion. The court was “wholly unpersuaded” that the trial judge was wrong in any way with respect to the security measures.
The Court of Appeal went on to find that there was a case for the applicant to answer at the end of the trial on the basis that there was “significant evidence which supported the identification by Mrs Edwards”.
The Court of Appeal then dealt with the question of adverse inferences from the applicant’s failure to mention his alibi during the police interview. The transcripts of the cross-examination of the applicant and of the voire dire were not before the court. The applicant submitted that the court asked his counsel to outline the basis for the submission that he had remained silent on the advice of his solicitor and that his counsel stated that he had been so instructed and that this was corroborated by the transcript of the police interview. The applicant was not present at court and could not therefore give evidence on this point. An application that the applicant be brought before the court to give evidence was refused. An application to adjourn to allow further evidence to be obtained was also refused. The applicant submitted that the Court of Appeal did not accept that the voire dire had actually taken place. The Court of Appeal considered that if the reason for his silence had been legal advice, it was “incredible” that he did not mention this at trial:
“In relation to the adverse inference point taken, the judge was fully entitled to say that the jury could draw an adverse inference from the refusal by [the applicant] to give evidence as to alibi. Merely to say at page 98 of the transcript [of the police interview] ... that he is going to make no comment on the advice of his solicitor, wholly fails to explain the point which [the applicant’s counsel] is making this morning which he says was not one that was taken until very recently. He takes it solely on the instructions of his client and he submits that if we think there is anything in it, we should adjourn the hearing of this application. Nothing which was said at the trial of [the applicant] weakens this question at all. If [the applicant] had given evidence about it and the judge had failed to remind the jury of it, we are confident that experienced trial counsel at the end of the summing-up would have corrected the judge. Indeed, [the applicant’s counsel] more or less conceded that in his submissions before us today. It is far too late, in our view, for [the applicant’s counsel] to come to court today, long after the event, and say that he is instructed that that advice was given. If it was given (about which we have considerable doubts), it is far too late to go into that matter now. There is nothing further in that point. What matters is the evidence at trial. There was no evidence at trial or by [the applicant] that the reasons for his silence was on the advice of his solicitor. If that had been the explanation in the light of what he was saying to the jury, it is incredible that he did not give that explanation. It reinforces us in the conclusion that there is nothing is this point.”
B. Relevant domestic law and practice
1. Adverse inferences from silence during police interviews
Section 34 of the Criminal Justice and Public Order Act 1994 (“the 1994 Act”) 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) 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, subsection (2) below applies.
(2) Where this subsection applies–
(c) the court, in determining whether there is a case to answer; and
(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) of the 1994 Act adds that:
“(3) 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) ...”
In R. v. Cowan ((1996) 1 Cr.App.R. 1), Lord Taylor CJ highlighted several “essentials” relating to the application of section 34 of the 1994 Act including the following:
“... 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.”
This interpretation of section 34 was confirmed by the Court of Appeal in R. v. Gill (Times Law Reports, 17 August 2000) and R. v. Betts and Hall ((2001 2 Cr.App.R. 257). In R. v. Roble ((1997) Crim.L.Rep. 449) the Court of Appeal elaborated on the factors relevant to whether an accused could reasonably have been expected to mention a fact later relied on at trial during his police interview:
“... this depend[s] on all the circumstances relevant in relation to [the accused person] at the time he was questioned, that is taking into account, among other things, his age, personality, experience, knowledge of the law, previous experience of police stations, the legal advice he was given and the reasons for that advice ...”.
2. The relevance of legal advice to remain silent
(a) Evidence at trial and waiver of privilege
In R. v. Roble (cited above) the Court of Appeal stressed that the defendant has the right not only to reveal to the jury the fact that he remained silent on legal advice, but also to adduce evidence before the jury (by way of oral evidence from the defendant himself and/or from the solicitor who gave the advice) about the contents of the advice, namely, the reason why the defendant had been so advised. This approach was confirmed in the later cases of R. v. Daniel ((1998) 2 Cr.App.Rep. 373), R. v. Bowden ((1999) 1 WLR 823), and R. v. Fitzgerald (judgment of 6 March 1998, unreported).
The general position in English law is that legal professional privilege attaches to confidential communications between a lawyer and his client in connection with the giving of legal advice to the client and in connection with legal proceedings. If communications are privileged, the defendant in a criminal trial and his lawyer may refuse to produce documentary evidence or give oral testimony on the ground that the information sought is privileged. This privilege can be expressly or impliedly waived by the defendant. Where a defendant ventures into an area of privilege, the trial judge frequently informs the defendant of his rights.
In R. v. Condron and Condron ((1997) 1 Cr.App.R. 185), the Court of Appeal decided that a defendant’s bare assertion that he remained silent during a police interview because he was following his solicitor’s advice did not amount to a waiver of privilege. However, if a defendant were to state the basis or reason for that advice, privilege may be waived. This approach was confirmed in R. v. Bowden ((1999) 2 Cr.App.R. 176). The Court of Appeal considered that if a suspect stated during the police interview that he refused to answer questions due to legal advice, evidence of that factual statement could be given at trial without waiving privilege. However, privilege is waived if the defendant, at trial, seeks to rely upon the reasons given in interview by his solicitor for his advice to remain silent.
In R. v. Bui ((2001) EWCA Crim.1), the Court of Appeal applied the foregoing case-law to the facts of the case before them and considered that:
“...It is plain from (Bowden) and earlier authority that the defendant’s evidence merely that he had been advised to say ‘no comment’ will not waive his privilege in the substance of communications between himself and his solicitor. Moreover it seems to be established (Condron) that a defendant may seek to rebut an allegation of recent invention by calling his solicitor to testify that his account at trial had been earlier given without losing the veil of privilege.
On a proper consideration of Bowden and the other authorities there considered it seems to us that the trial judge in this case was wrong to rule that the appellant had waived his privilege. In substance the appellant had said no more than that his solicitor had advised him to make no comment. Asked by the judge whether he wanted to say what passed between him and his solicitor, he answered affirmatively – as if there were more to come; but all he had to say about it was to repeat, ‘she advised me to say no comment’. This was no waiver of privilege.”
(b) Legal advice to remain silent and adverse inferences
In R. v. Argent ((1997) Cr.App.R. 27) the Court of Appeal confirmed that legal advice was one of the circumstances to be taken into account by the jury in assessing whether to draw adverse inferences from an accused’s silence. Six conditions had to be met before section 34 could allow such inferences to be drawn. Lord Bingham explained the sixth condition as follows:
“The sixth condition is that the appellant failed to mention a fact which in the circumstances existing at the time the accused could be reasonably have been expected to mention when questioned. The time referred to is the time of questioning, and account must be taken of all the relevant circumstances existing at the time. The courts should not construe the expression ‘in the circumstances’ restrictively: matters such as the time of day, the defendant’s age, experience, mental capacity, state of health, sobriety, tiredness, knowledge, personality and legal advice are all part of the relevant circumstances; and those are only examples of things which may be relevant ...
Like so many other questions in criminal trials this is a question to be resolved by the jury in the exercise of their collective common-sense, experience and understanding of human nature. Sometimes they may conclude that it was reasonable for the defendant to have held his peace for a host of reasons, such as he was ... worried at committing himself without legal advice, acting on legal advice, or some other reason accepted by the jury.”
In R. v. Condron and Condron (cited above) the Court of Appeal considered that the mere statement that an accused had remained silent due to legal advice would not be sufficient to prevent adverse inferences from being drawn:
“But ... the bare assertion is unlikely by itself to be regarded as a sufficient reason for not mentioning matters relevant to the defence. So it will be necessary, if the accused wishes to invite the court not to draw an adverse inference, to go further and state the basis or reason for the advice ...”
However, in R. v. Betts and Hall (cited above) the Court of Appeal stated that if it was plausible that the reason for an accused’s silence was that he/she acted on legal advice, no adverse inference could be drawn under section 34 of the 1994 Act. According to Lord Justice Kay:
“In the passage that we quoted ... the judge made repeated references to valid reasons and adequate explanations [for the accused’s silence]. These and the whole of this passage would seem to be inviting consideration by the jury of the quality of the decision not to answer questions made by each appellant. In the light of the judgment in Condron v. United Kingdom, it is not the quality of the decision but the genuineness of the decision that matters. If it is a plausible explanation that the reason for not mentioning facts is that the particular appellant acted on the advice of his solicitor and not because he had no or no satisfactory answer to give then no inference can be drawn.
That conclusion does not give licence to a guilty person to shield behind the advice of his solicitor. The adequacy of the explanation advanced may well be relevant as to whether or not the advice was truly the reason for not mentioning the facts. A person, who is anxious not to answer questions because he has no or no adequate explanation to offer, gains no protection from his lawyer’s advice because that advice is no more than a convenient way of disguising his true motivation for not mentioning facts.
In the instant case, we were of the view that the jury may have failed to appreciate on the directions given that they could only draw inferences against the appellants if they were sure that their failure to mention facts was not merely as a result of the advice, however adequate or inadequate that explanation might be, and could only do so if they were sure that the particular applicant had not at that stage any explanation to offer or none that he believed would stand up to questioning or investigation.”
The Judicial Studies Board specimen direction was duly amended to reflect the judgment of the Court of Appeal in Betts and Hall (see paragraph 5 of the July 2001 specimen direction reproduced below).
The Court of Appeal recently returned to this issue in Howell v. the Queen ((2003) EWCA Crim. 1):
“ ... the public interest that inheres in reasonable disclosure by a suspected person of what he has to say when faced with a set of facts which accuse him, is thwarted if currency is given to the belief that if a suspect remains silent on legal advice he may systematically avoid adverse comment at his trial. And it may encourage solicitors to advise silence for other than good objective reasons. We do not consider, pace the reasoning in Betts & Hall, that once it is shown that the advice (of whatever quality) has genuinely been relied on as the reason for the suspect’s remaining silent, adverse comment is thereby disallowed. The premise of such a position is that in such circumstances it is in principle not reasonable to expect the suspect to mention the facts in question. We do not believe that is so. What is reasonable depends on all the circumstances ... The kind of circumstance which may most likely justify silence will be such matters as the suspect’s condition (ill-health, in particular mental disability; confusion; intoxication; shock, and so forth ... ) or his inability, genuinely to recollect events without reference to documents which are not to hand, or communication with other persons who may be able to assist his recollection. There must always be soundly based objective reasons for silence, sufficiently cogent and telling to weigh in the balance against the clear public interest in an account being given by the suspect to the police. Solicitors bearing the important responsibility of giving advice to suspects at police stations must always have that in mind.
We should say that we consider this approach to be perfectly consistent with Condron on a proper reading of the Strasbourg judgment. The holding in that case referred to the applicants remaining silent for good reason on the advice of their solicitor ...”
The different approaches in the cases of Betts and Hall and Howell have both been followed in subsequent cases by the Court of Appeal, producing two lines of case-law on the matter.
3. Requirement of a “case to answer”
The Police and Criminal Evidence Act sets down the requirements which must be met in order for an individual to be arrested and questioned in connection with a criminal offence. Section 24(5) provides as follows:
“Where an arrestable offence has been committed, any person may arrest without a warrant-
a) anyone who is guilty of the offence;
b) anyone whom he has reasonable grounds for suspecting to be guilty of it.”
With respect to reliance on identification evidence at trial (not confined to cases where adverse inferences may be drawn), the case of R. v. Turnbull ((1977) Q.B. 224) provided, as relevant, that:
“When, in the judgment of the trial judge, the quality of the identifying evidence is poor as, for example, when it depends solely on a fleeting glance or on a longer observation made in difficult conditions ... the judge should then withdraw the case from the jury and direct an acquittal unless there is other evidence which goes to support the correctness of the identification ...”.
In R. v. Cowan (cited above), Lord Taylor CJ highlighted the fact that there must be a case for the defendant to answer before any adverse inferences can be drawn under section 34 of the 1994 Act:
“... 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 before drawing an adverse inference from the defendant’s silence.”
The specimen direction at the time of the applicant’s trial reflected this by providing that there must be a case for the defendant to meet (see paragraph 5 reproduced below).
In R. v. Doldur ((2000) Crim.L.R. 178), the Court of Appeal (per Lord Justice Auld) interpreted the requirement established by Cowan in the following terms:
“... What is plain is that it is not for the jury to repeat the threshold test of the judge in ruling whether there is a case to answer on the prosecution evidence if accepted by them. The direction approved in Cowan has a different object. It is to remind the jury that they cannot convict on adverse inferences alone. It is to remind them that they must have evidence, which, in the sense of s.34 inferences, may include defence evidence where called and which, when considered together with any such adverse inference as they think proper to draw, enables them to be sure both of the truth and accuracy of that evidence and, in consequence, guilt.”
4. Judicial Studies Board Specimen Directions
Specimen directions of the Judicial Studies Board offer guidance as to the directions which the trial judge should give a jury about the drawing of adverse inferences from a defendant’s silence. The specimen directions are revised from time to time in accordance with developments in the case-law.
At the time of the applicant’s trial, the relevant specimen direction, formulated in light of the judgments of the Court of Appeal in R. v. Cowan, R. v. Argent, and R. v. Condron and Condron (cited above), read as follows:
“[When arrested, and at the beginning of each interview] this defendant was cautioned, he was told that he need not say anything, but that it may harm his defence if he did not mention something when questioned which he later relied on in court. Anything he did say may be given in evidence.
The defendant as part of his defence has relied upon ... (here specify precisely the fact(s) to which this direction applies). But [the prosecution case is] [he admits] that he did not mention this [when he was questioned before being charged with the offence] [when he was charged with the offence] [when he was officially informed that he might be prosecuted for the offence].
The prosecution case is that in the circumstances, and having regard to the warning which he has been given, if this fact had been true, he could reasonably have been expected to mention it at that stage, and as he did not do so you may therefore conclude that [it has since been invented/tailored to fit the prosecution case/he believed that it would not then stand up to scrutiny].
If you are sure that he did fail to mention ... when he was [charged] [questioned] [informed], it is for you decide whether in the circumstances it was something which he could reasonably have been expected to mention at that time. If it was, the law is that you may draw such inferences as appear proper from his failure to do so.
Failure to mention ... cannot, on its own, prove guilt. But, if you are sure that quite regardless of this failure, there is a case for him to meet, it is something which you are entitled to take into account whether his evidence about this matter is true, i.e. you may 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 fact when he had the opportunity to do so. That evidence is ... If you think 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, and you are sure that the real reason for his failure to mention this fact was that he then had no innocent explanation to offer in relation to this aspect of the case, you may hold it against him.]”
The specimen direction was revised in July 2001 as a result of further developments in the case-law including the case of R. v. Betts and Hall (cited above) in which the Court of Appeal confirmed that a jury could only draw an adverse inference from a suspect’s silence if satisfied that the defendant had no answer or none that would stand up to questioning or investigation. The revised specimen direction read as follows:
“1. Before his interview(s) the defendant was cautioned .... He was first told that he need not say anything. It was therefore his right to remain silent. However, he was also told that it might harm his defence if he did not mention when questioned something which he later relied on in court; and that anything he did say might be given in evidence.
2. As part of his defence, the defendant has relied upon (here specify the facts to which this direction applies – ... But [the prosecution say/he admits that he failed to mention these facts when he was interviewed about the offence(s). [If you are sure that is so, this/This] failure may count against him. This is because you may draw the conclusion ... from his failure that he [had no answer then/had no answer that he then believed would stand up to scrutiny/has since invented his account/has since tailored his account to fit the prosecution’s case/(here refer to any other reasonable inferences contended for – ...]. If you do draw that conclusion, you must not convict him wholly or mainly on the strength of it ...; but you may take it into account as some additional support for the prosecution’s case ... and when deciding whether his [evidence/case] about these facts is true.
3. You may draw such a conclusion against him only if you think it is a fair and proper conclusion, and you are satisfied about three things: first, that when he was interviewed he could reasonably have been expected to mention the facts on which he now relies; second, that the only sensible explanation for his failure to do so is that he had no answer at the time or none that would stand up to scrutiny ...; third, that apart from his failure to mention those facts, the prosecution’s case against him is so strong that it clearly calls for an answer by him ...
4. (Add, if appropriate:) The defence invite you not to draw any conclusion from the defendant’s silence, on the basis of the following evidence (here set out the evidence – ...). If you [accept this evidence and] think this amounts to a reason why you should not draw any conclusion from his silence, do not do so. Otherwise, subject to what I have said, you may do so.
5. (Where legal advice to remain silent is relied upon, add the following instead of paragraph 4:) The defendant has given evidence that he did not answer questions on the advice of his solicitor/legal representative. If you accept the evidence that he was so advised, this is obviously an important consideration: but it does not automatically prevent you from drawing any conclusion from his silence. Bear in mind that a person given legal advice has the choice whether to accept or reject it; and that the defendant was warned that any failure to mention facts which he relied on at his trial might harm his defence. Take into account also (here set out the circumstances relevant to the particular case, which may include the age of the defendant, the nature of and/or reasons for the advice given, and the complexity or otherwise of the facts on which he relied at the trial). Having done so, decide whether the defendant could reasonably have been expected to mention the facts on which he now relies. If, for example, you considered that he had or may have had an answer to give, but reasonably relied on the legal advice to remain silent, you should not draw any conclusion against him. But if, for example, you were sure that the defendant had no answer, and merely latched onto the legal advice as a convenient shield behind which to hide, you would be entitled to draw a conclusion against him, subject to the direction I have given you ...”
The applicant complained under Article 6 of the Convention that he did not receive a fair trial.
A. He complained that he was wrongly prevented from explaining in evidence that he remained silent on the basis of legal advice.
B. He also argued that the trial judge’s adverse inference direction to the jury was deficient. In the first place, the trial judge did not place sufficient weight on the fact that the applicant had refused to answer questions during his interview because of legal advice. Secondly the trial judge should have directed the jury that they could only draw an adverse inference if the applicant had a case to answer at the time of the interview.
C. Finally, he submitted that the security arrangements were prejudicial.
The applicant invoked Article 6 of the Convention which provides, in so far as relevant:
“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing ...”
A. The prevention of evidence about legal advice
1. The parties’ submissions
The applicant claimed that he was wrongly prevented by the trial judge from putting the reasons for his refusal to answer questions in interview before the jury. He argued that the trial judge erred in stating that if he ‘started’ to tell the jury what had happened between him and the solicitor he would lose his privilege and could be asked further questions. He maintained that the judge failed to distinguish between an assertion that questions in interview were not answered in reliance on legal advice (which does not waive privilege) and disclosure of the reasons for advice (which does).
The Government pointed out that defence counsel assured the trial judge at the voire dire that the legal position with respect to adverse inferences and the waiver of legal privilege had been fully explained to the applicant. As a result, the applicant knew that he was free to mention at trial what passed between him and his solicitors. They concluded that a tactical decision had been made by the defence team to rely on the concern about the tax authorities rather than legal advice as the reason for the applicant’s silence during the police interviews. The applicant evidently did not want the content of his discussions with his solicitor to be subject to cross-examination.
The Government further submitted that the trial judge’s statements during the voire dire were neither incorrect nor misleading: when the trial judge reminded the applicant that legal privilege would be waived if he started to tell the court what had passed between him and his solicitor, he was clearly referring to the content rather than the mere fact of the advice. The trial judge reasonably assumed that the applicant’s representatives had explained the position as to legal advice and privilege and his principle concern was to reiterate the consequences of the applicant revealing the content of the legal advice. He did not purport to explore exhaustively the various tactical options or the legal consequences of those options.
The Government submitted that, in any case, if he had stated that he acted on the advice of his solicitor without explaining the reasons for that advice, this would not have been sufficient to prevent an adverse inference from being drawn (for example, R v. Howell, cited above). As a result, even if he did misunderstand the position as to waiver of privilege, this misunderstanding did not make any difference.
In response the applicant disputed that it was clear that the trial judge was referring to the content of the advice, rather than the mere fact of it. He claimed that he was ‘inadvertently misled’ into believing that the mere mention of the fact of legal advice to remain silent would waive privilege.
2. The Court’s assessment
The Court recalls the relevant principles, as set out in Pesti & Frodl v. Austria (dec.), no. 27618/95;27619/95, ECHR 2000-I), in relation to the control of evidence by a trial judge:
“[A]s a general rule, it is for the national courts to assess the evidence before them, as well as the relevance of the evidence which the defendant seeks to adduce. More specifically, Article 6 § 3 (d) leaves it to them, in principle, to assess whether it is appropriate to call witnesses, in the “autonomous” sense given to that word in the Convention system. It does not require the attendance and examination of every witness on the accused’s behalf (see the Bricmont v. Belgium judgment of 7 July 1989, Series A no. 158, p. 31, § 89, and the Vidal v. Belgium judgment of 22 April 1992, Series A no. 235-B, pp. 32-33, § 33). In respect of witnesses on behalf of the accused, only exceptional circumstances could lead the Court to conclude that a refusal to hear such witnesses violated Article 6 of the Convention (Bricmont v. Belgium judgment, loc.cit). However, the complete silence in a judgment as to why the court refused to hear a witness for the defence is not consistent with the concept of a fair trial envisaged by Article 6 of the Convention (see the Vidal v. Belgium judgment, loc. cit).”
In the present case, the Court observes that the applicant was not, in fact, prevented from producing evidence, either as to the fact of his legal advice or as to the content of that legal advice. He had every opportunity to bring out such evidence in examination in chief. His counsel had only to ask him. However, as the trial judge pointed out, his counsel was scrupulously careful not to canvass that ground. Furthermore, even in the voire dire the trial judge made it clear that the applicant was at liberty to give evidence as to his legal advice.
In substance, the applicant’s complaint is not that he was prevented from giving evidence as to legal advice but rather that he was poorly advised by the trial judge as to the consequences of mentioning his legal advice. He claimed that he was misled into thinking that the mere mention of the fact of legal advice (as opposed to the content) would be enough to waive his privilege.
The Court considers it clear that the trial judge was attempting to inform the applicant of the consequences of mentioning the content (as opposed to the mere fact) of his legal advice. However, the Court accepts that it is possible that a lay person, without independent legal advice, might have misunderstood. In particular, the judge’s warning to the applicant, that if he ‘started’ to tell the jury what passed between him and his solicitor he would remove the privilege, could be construed as meaning that mere mention of the fact of legal advice would be enough to remove the privilege.
However, the Court notes that the applicant was represented by counsel, who explicitly informed the judge that he had explained the legal position in relation to privilege to the applicant. The applicant made no complaint about his counsel or the explanation that he had provided. In the circumstances, if the applicant misunderstood the trial judge’s words, it was not attributable to the State.
Moreover, the applicant had every opportunity to persuade the Court of Appeal, through his counsel, of the unfairness resulting from the trial judge’s advice in the voire dire. However, he did not put forward any evidence to the Court of Appeal in relation to the voire dire. This must cast doubt on whether the applicant actually considered himself to have been misled by the trial judge’s advice.
In all the circumstances, this complaint does not give rise to any appearance of a violation of Article 6 and must be rejected as being manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.
B. The adverse inference direction
1. The parties’ submissions
The applicant submitted that the adverse inference direction was deficient in two respects. In the first place, the fact of having received legal advice was not given sufficient weight. Secondly, the jury were not directed clearly that they could only draw an adverse inference if the applicant had a case to answer at the time of the interview.
In response, the Government argued that there was no ‘failure’ on the part of the trial judge to mention legal advice as a reason for the applicant’s silence since the applicant had not given any such evidence. They pointed out that his counsel could have elicited this evidence very easily in examination in chief but had chosen not to do so. Even if it was considered that the applicant had given such evidence, it was open to the applicant’s counsel to remind the trial judge of this after his summing up but he chose not to do so. Finally, they argued that even if the trial judge did err in not mentioning legal advice as a reason for the applicant’s silence, no violation of Article 6 would have occurred. If the trial judge had mentioned in the summing up the bare assertion of reliance on legal advice, he would have had also to draw attention to the defence’s decision not to open up the reasons for that advice. If anything, this would have harmed the applicant’s case.
In his reply, the applicant asserted that he had, in fact, given evidence that his reason for not mentioning his alibi in interview was the legal advice of his solicitor: he asserted that, on a fair reading, the interrupted exchange between himself and Mr O’B was evidence to that effect. In any case, he pointed out that it was plain from the opening of the police interview that the applicant had provided a ‘no comment’ interview on the basis of legal advice. Finally, he submitted that the Government’s argument, that any error in the summing up was immaterial, was based on a view of the law that was inconsistent with Condron and Beckles and was hypothetical and speculative.
2. The Court’s assessment
The Court considers that this complaint relates principally to the applicant’s right to silence. It recalls the relevant principles, as set out in Beckles v. the United Kingdom, no. 44652/98, §§ 57-59, 8 October 2002:
“The Court recalls that in [Condron v. the United Kingdom, no. 35718/97, (§§ 56-57, ECHR 2000-V] it confirmed in line with its earlier John Murray v. the United Kingdom judgment (Reports of Judgments and Decisions 1996-I) that the right to silence is not an absolute right. Accordingly, the fact that a trial judge leaves a jury with the option of drawing an adverse inference from an accused’s silence either, as in the instant case, during police interview or during his trial cannot of itself be considered incompatible with the requirements of a fair trial.
The Court further stressed in its Condron judgment that since the right to silence, like the privilege against self-incrimination, lay at the heart of the notion of a fair procedure under Article 6, particular caution was required before a domestic court could invoke an accused’s silence against him. Thus it would be incompatible with the right to silence to base a conviction solely or mainly on the accused’s silence or on a refusal to answer questions or to give evidence himself. Nevertheless, it is obvious that the right 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 (ibid.).
For the Court, whether the drawing of adverse inferences from an accused’s silence infringes Article 6 is a matter to be determined in the light of all the circumstances of the case, having 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 (ibid.). Of particular relevance are the terms of the trial judge’s direction to the jury on the issue of adverse inferences.”
The Court observes that the applicant was informed at the beginning of the first police interview that it was his right not to reply to the questions put to him by the police as well as of the possible consequences attaching to the exercise of that right. The applicant has not disputed the clarity of the caution administered to him. Moreover, the applicant’s solicitor was present during the interview to advise him on what served his interests best at that stage of the investigation, namely silence or co-operation. The applicant chose to remain silent, allegedly on the advice of his solicitor. At his trial, the applicant relied on an alibi that he had not put forward at the interview. Furthermore, he did not disclose the contents of the advice from his solicitor.
The Court must have close regard to the manner in which the trial judge directed the jury on the issue of the applicant’s silence, and in particular to the safeguards contained in his direction in order to ensure that it struck the appropriate balance between the exercise by the applicant of his right to silence and the circumstances in which an adverse inference may legitimately be drawn from silence.
It notes in the first place that under section 34 of the Criminal Justice and Public Order Act 1994 (“the 1994 Act”) the trial judge was not obliged to leave this issue with the jury. He exercised his discretion to do so. The applicant did not challenge, and the Court sees no reason to question, the judge’s decision from the standpoint of Article 6.
Secondly, the trial judge warned the jury that the applicant’s failure to mention his alibi at the time of his interview could not “of its own prove guilt.” The trial judge further explained to the jury that it had to be satisfied that the prosecution had established a “case to meet” before drawing any inferences from the said failure. The Court would further add that, even if satisfied that there was a case to answer, the jury was not obliged to draw any inferences.
Thirdly, the trial judge carefully worded his direction so as to make clear to the jury that it had to be satisfied that the applicant’s silence was consistent with guilt. The trial judge stated in this connection: “if you are sure that the real reason for [the applicant’s] failure [to mention his alibi at the time] was that he had no innocent explanation to offer in relation to this aspect of the case, well then you may hold it against him.” In the Court’s opinion, this part of the direction as worded confined any use which the jury might make of the applicant’s silence within limits which were consistent with the notion of fairness.
Fourthly, the trial judge reminded the jury of the explanation that the applicant had put forward at trial for his failure to alibi: he did not want to get himself and Mr G. in trouble with the tax authorities. The applicant complained that the trial judge did not “remind” that the applicant had received legal advice to remain silent during the interview. However, the Court notes that no such evidence had been put before the jury. The applicant himself had not given such evidence. Indeed, this was the basis of his first complaint: that he had not given such evidence because he had been poorly advised by the trial judge. Furthermore, the transcript of the police interview, on which the applicant relied, merely recorded the following: “after consulting his solicitor [the applicant] has elected to make no comment to any questions”. It did not state that the applicant had received legal advice to remain silent. In short, the trial judge cannot be criticised for failing to “remind” the jury of a fact that had not been put in evidence.
The applicant also complained that the trial judge should have directed the jury not to draw adverse inferences unless they considered that there was a case to answer at the time of the interview. However, the Court does not consider that the trial judge was under any such obligation. The applicant had been arrested, cautioned and given the benefit of legal assistance prior to his interview. Therefore, he was fully aware of the risk of adverse inferences being drawn from silence in interview. The Court considers that, in these circumstances, the drawing of such inferences could be legitimate, even if there was no “case to answer” at interview.
In conclusion, the Court considers that the trial judge’s direction cannot be impugned from the standpoint of fairness, bearing in mind the above-cited warning given by the trial judge to the jury on the circumstances which might justify the drawing of an adverse inference.
There is accordingly no appearance of a breach of the fairness guarantees of Article 6 § 1 of the Convention and this part of the application must be dismissed as being manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.
C. Complaint about security arrangements at trial
1. The parties’ submissions
The applicant submitted that the high security arrangements were unnecessary and portrayed him to the jury as a dangerous man. He considered that the jury would have been aware of normal security arrangements at trial and that here, the degree of security was higher than usual. He pointed out that the co-accused, DA, was not subjected to the same heavy security. The applicant considered that it would have been possible for arrangements to be made which satisfied security needs and did not lead to the risk that the jury would form a prejudiced view of him, such as police or dock officers sitting outside the court exits or transferring the case to a court-room with a secure dock.
2. The Court’s assessment
The Court recalls that the implementation of necessary security arrangements at a trial cannot in itself be regarded as rendering the proceedings unfair and that, although security measures may lead a jury to infer that the accused was considered by the police and the judge to be dangerous, it does not follow that his right to be presumed innocent is thereby violated (Welch v. the United Kingdom, no. 17440/90, Commission decision of 12 February 1993, unreported). The Court would note that it has previously found that very heavy security arrangements, including the use of a police surveillance helicopter and the surrounding of the courtroom with armed police officers, did not violate the requirements of Article 6, in circumstances where the applicant was being tried for serious offences, there was evidence that an escape attempt had been planned and there were allegations of the attempted bribery of jurors (ibid.). The Court further recalls that, although the handcuffing of prisoners in public is an undesirable practice, it has found in a number of cases that the handcuffing of prisoners throughout their trial was compatible with Article 6 of the Convention (Campbell v. the United Kingdom, Commission decision of 13 July 1988, DR 57, p. 148 and Welch v. the United Kingdom, cited above).
Turning to the facts of the present case, the Court initially highlights the fact that the heavy security arrangements resulted from the applicant’s escape from custody during a previous court hearing. The trial judge carefully considered the prosecution’s request for the security measures and the applicant’s submissions on this matter. The Court notes, as did the Court of Appeal, that the police were in regular street uniform and that the jurors would have been used to seeing police dressed in this way. Further, as the single judge of the Court of Appeal pointed out, the jury would not be familiar with the degree of security commonly employed at trial. In this regard, the Court observes that the trial judge explicitly stated to the jury in his summing-up that the degree of security surrounding the applicant was appropriate to the seriousness of the case. With respect to the handcuffing of the applicant, the Court notes that, contrary to the request of the prosecution, the trial judge ordered that the applicant’s handcuffs should be removed while he was in court and that, therefore, he was only handcuffed while entering and leaving the court.
In conclusion, the Court sees no reason to differ from the careful assessment of the domestic courts with respect to the necessity and appropriateness of the security arrangements. It is true that the security measures employed for the applicant were more strict than those applied to DA and that that could have led the jury to presume that the applicant was considered more dangerous than his co-accused. However, the Court considers that the assessment of the dangerous character of a person in such circumstances does not in itself violate the presumption of innocence and notes that the difference in the treatment of the applicant and DA was explained by the applicant’s prior escape attempt (Welch v. the United Kingdom, cited above). The Court therefore finds that the security arrangements at trial did not deprive the applicant of a fair trial, within the meaning of Article 6 of the Convention.
Given its findings above, the Court concludes that this part of the application is also manifestly ill-founded and should be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court by a majority
Declares the application inadmissible.
Michael O’BOYLE Josep CASADEVALL
COGHLAN v. THE UNITED KINGDOM DECISION
COGHLAN v. THE UNITED KINGDOM DECISION