Judge "drew inference" from man's silence

WHEN Mr Sandy Lynch took his blindfold off, he later testified, he saw Mr John "Anto" Murray pulling tape from a cassette. He could hear the RUC banging on the door of the suburban Belfast house. It was January 7th, 1990. Mr Murray, he would tell the court, instructed him to go downstairs and pretend to be watching television.

Before his rescue by the police, Mr Lynch says, he was being interrogated against his will about alleged informing activities. The RUC would testify that fragments of the tape which were recovered in the bathroom consisted of a confession from Mr Lynch that he had agreed to work for the police and had been paid to do so.

Mr Murray, from west Belfast, and six others, including the then spokesman for Sinn Fein, Mr Danny Morrison, were tried and convicted following the incident.

Mr Murray, from start to finish, refused to answer police questions about his presence in the house, and for the first 48 hours of his custody he was denied access to a solicitor in accordance with the Emergency Provisions (NI) Act of 1987.

In court, the judge informed him that he intended to "draw very strong inferences" as to his guilt from his refusal to answer police questions or give evidence.

The Northern Ireland Appeal Court upheld the conviction, noting that the evidence against Mr Murray was "formidable" and that it was "inevitable" that the judge would draw "very strong inferences against him".

Mr Murray appealed to the European Court of Human Rights in August, 1991. He complained that he was being deprived of rights under Articles 2 and 6 of the European Convention on Human Rights - specifically, the right to silence in criminal proceedings against himself, and the right to access to a solicitor.

He also sought a ruling on the right of solicitors to be present during all interrogations and complained that the fact that the law operated differently in different parts of the UK represented discrimination and violation of Article 14 of the European Convention.

The Commission of Human Rights found his application admissible and recommended in his favour on the issue of access to a solicitor, but against him on the "adverse inference" issue. It found that it was not necessary to examine the Article 14 issue.

Those findings were yesterday confirmed by the full court.

The court made clear that it did not want to give a broad "abstract" ruling, but one confined to the particular circumstances of the case.

While it was not acceptable to base a conviction solely or mainly on the accused man's silence, the court "deems it equally obvious that these immunities 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".

The court argued that the issue was then one of where to draw the line and that the right to silence was not absolute. The determination of when adverse inferences from silence could be drawn then depended on the circumstance of each case.

In this case, the court argued, account had to be taken also of the fact that the trial was taking place in front of an experienced judge and not a jury.

The court accepted that the evidence against Mr Murray was "formidable" and that, in the circumstances, the drawing of adverse inferences was a matter of common sense "and cannot be regarded as unfair or unreasonable".

On the issue of access to a lawyer, the court accepted that Article 6 implied a right of access to a lawyer from an initial stage in police interrogation. But it also accepted that such rights could be restricted "for good cause". The court argued that in the particular circumstances of Mr Murray - the existence of a legal right for the court to take an adverse inference from his silence from the start of his questioning - there was a particular need to ensure that the accused person had access to a lawyer.

"As matters stand, the applicant was undoubtedly directly affected by the denial of access and the ensuing interference with the rights of the defence."

The court ruled that Mr Murray was not entitled to compensation, arguing that the "finding of a violation is, in itself, sufficient just satisfaction".

Costs of £15,000 were awarded to Mr Murray.

The ruling, which was read out by the court's president, Mr Justice Rolf Ryssdal, was taken by the court sitting as a grand chamber of 19 judges.

The decision that the right to draw an adverse implication was not a violation of the convention was taken by 14 votes to five, with Ireland's Mr Justice Brian Walsh among the dissenting.