PROCEDURE

The case originated in an application (no. 35718/97) against the United Kingdom of Great Britain and Northern Ireland lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Irish citizen, Mr William Condron, and a British citizen, Mrs Karen Condron (“the applicants”), on 13 November 1996.

The applicants were represented by Mr J. Wadham, a lawyer practising in London. The Government of the United Kingdom (“the Government”) were represented by their Agent, Mr C. Whomersley, of the Foreign and Commonwealth Office, London.

The applicants alleged that they were denied a fair hearing on account of the fact that the trial judge left the jury with the option of drawing an adverse inference from their silence during police interview.

The application was transmitted to the Court on 1 November 1998, when Protocol No. 11 to the Convention came into force (Article 5 § 2 of Protocol No. 11).

The application was allocated to the Third Section of the Court (Rule 52 § 1 of the Rules of Court).

By a decision of 7 September 1999 the Chamber declared the application admissible.

The applicants and the Government each filed observations on the merits (Rule 59 § 1).

A hearing took place in public in the Human Rights Building, Strasbourg, on 25 January 2000 (Rule 59 § 2). There appeared before the Court: (a) for the Government Mr C. Whomersley, Foreign and Commonwealth Office, Agent, Mr D. Pannick QC, Mr M. Shaw, Counsel, Ms S. Chakrabati, Home Office, Mr I. Chisholm, Home Office, Advisers; (b) for the applicants Mr B. Emmerson, Mr A. Jennings, Ms P. Kaufman, Counsel, Ms M. Cunneen, Solicitor. The Court heard addresses by Mr Emmerson and Mr Pannick.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

A. The prosecution case against the applicants

Both applicants are admitted heroin addicts. Prior to their being convicted and sentenced for drug offences they lived at 51 Cubitt House, a large block of council flats in South London. Adjacent to their flat, at 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 sixteen 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.

B. The police interview

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 applicant 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 and 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: “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. They 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”.

C. The defence case for the applicants

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.

D. The trial judge's direction to the jury

In his summing-up the judge made reference to the jury's ability to draw inferences from the applicants' silence: “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.”

E. The applicants' conviction and appeal

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 on 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 (submissions on a point of law in the absence of the jury), 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 had 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 in so far as he omitted to remind the jury that “they could only draw an adverse inference if, in spite of any evidence relied upon to explain the failure to mention the relevant matters (or indeed in the absence of such evidence) they conclude[d] that such failure [could] only sensibly be attributed to the fact that the appellants must have fabricated the evidence subsequently”. The Court of Appeal, with reference to the dicta of Lord Taylor CJ in R. v. Cowan ([1996] Queen's Bench Reports 373) (see paragraph 33 below) considered that it would have been desirable if the trial judge had directed the jury along the following lines: “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.