ITEMID: 001-57964
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 1995
DOCNAME: CASE OF RIBITSCH v. AUSTRIA
IMPORTANCE: 2
CONCLUSION: Violation of Art. 3;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
JUDGES: John Freeland
TEXT: 6. Mr Ronald Ribitsch, an Austrian national born in 1958, lives with his wife in Vienna.
7. At the material time the Security Branch of the Vienna Federal Police Authority (Sicherheitsbüro der Bundespolizeidirektion) included three units assigned to investigating drug offences. One of these, led by Chief Inspector Pöttinger, had particular responsibility for cases involving fatalities.
8. On 21 May 1988, following the deaths of two people from heroin overdoses, the girlfriend of one of the deceased went to the headquarters of Mr Pöttinger’s unit and made a statement alleging that her boyfriend had told her that he intended to obtain drugs from the applicant.
Acting on this information several of the unit’s officers questioned the applicant on the same day and searched his home, although they had no warrant. The search revealed nothing and the applicant and his wife were authorised to leave for Turkey on holiday that very day.
9. On 22 May 1988 one of the deceased was recognised as a rock singer who was very well known in Austria. This led to pressure from the media to find the dealer who had sold the heroin that had caused the deaths. Mr Pöttinger’s unit conducted numerous inquiries between 22 and 31 May 1988.
10. On the latter date another Security Branch unit, led by Chief Inspector Gross, and including at the material time Police Officers Markl, Trnka and Fröhlich, received an anonymous telephone call accusing Mr Ribitsch of selling heroin to one of the deceased.
At about 12.30 p.m. a number of officers belonging to this unit arrested the applicant and his wife for drug trafficking and searched their home, although they had neither a search warrant nor an arrest warrant. The search revealed 0.5 g of hashish.
11. Mr Ribitsch and his wife were held in police custody at the headquarters of the Security Branch of the Vienna Federal Police Authority from about 12.30 p.m. on 31 May 1988 to about 9.30 a.m. on 2 June 1988.
12. There are two conflicting versions of what occurred during the period of police custody.
According to the applicant, the officers questioning him grossly insulted him and then assaulted him repeatedly in order to wring a confession from him. He received punches to the head (Kopfnuß), kidneys and right arm and kicks to the upper leg and kidneys. He was pulled to the ground by the hair and his head was banged against the floor. Ninety per cent of his injuries were inflicted by blows from Police Officer Markl. When released he had bruises on his right arm and one thigh and was suffering from a cervical syndrome, vomiting, diarrhoea and a violent headache.
A different version was given by Mr Markl in a report that was dated 1 June 1988 but purported to give an account of events which, according to the report itself, had occurred on 1 June from about 3.20 p.m. onwards, on 2 June at about 8 a.m. and on 2 June at about 9.30 a.m. The report stated that in the afternoon of 1 June the applicant was taken from police headquarters to an acoustic research institute so that his voice could be compared with that of a person who had made an anonymous phone call to the Vienna emergency services. As he was getting out of the police car, and while he had handcuffs on his wrists, Mr Ribitsch had slipped and his right arm had banged into the rear door. Mr Markl, who had opened the door for him, managed to grab hold of his left arm, but was not able to prevent him from falling. However, his fall had largely been broken and he had landed "gently" on his behind. It was only the next morning, when being questioned, that the applicant informed the police of his injury, although he refused medical attention.
13. On being released from police custody the applicant informed several members of his family, a psychologist and a journalist of the ill-treatment he had allegedly suffered. On the latter’s advice he went to Meidling Hospital in the afternoon of 2 June, where he was examined from 5.35 p.m. onwards, and to his general practitioner the following day. The hospital report recorded bruises measuring 2 to 3 cm in the middle of the outside of the right arm, and an appended neurological report recorded bruises on the outside and inside of the right arm. No other injury to his limbs was found. An X-ray showed no broken bones. The doctor’s report stated that the applicant had several bruises on his right arm and symptoms characteristic of a cervical syndrome, that he was suffering from vomiting and a violent headache and that he had a temperature of 37.5 oC. A photographer took a photograph of Mr Ribitsch’s injuries.
14. On 7 June 1988, following a programme on Austrian radio about the methods allegedly used by the police when they questioned Mr and Mrs Ribitsch, the Vienna Federal Police Authority began an inquiry into the officers concerned and sent the results to the public prosecutor’s department on 25 October 1988.
On 22 November the applicant lodged a civil party claim for damages under Article 47 of the Code of Criminal Procedure (Strafprozeßordnung).
15. On 26 June 1989 the judge of the Vienna District Criminal Court (Strafbezirksgericht) conducted the preliminary inquiries (Vorermittlungen) and heard Mr and Mrs Ribitsch as witnesses and Police Officers Trnka, Gross, Fröhlich and Markl as accused (Beschuldigte).
In its report the Commission gave the following account of the statements they made:
"23. The applicant stated that on 31 May 1988 he had been arrested by four police officers, inter alia Markl and Trnka. Following the taking of photographs and fingerprints, the questioning had started in the afternoon and evening. At the first questioning five police officers had been present, who had interrogated him in turns. The applicant also indicated that the police officers, with the exception of Police Officer Fröhlich, were drinking wine. In the course of the questioning, their superior Mr Gross had started to pull his handle-bar moustache and to go around the room with him, and then also slapped him in the face. As he still had not confessed, Police Officer Markl had begun to hit him. He knew about this officer’s identity as he had seen him signing the record. Police Officer Fröhlich had been sitting at the typewriter. He had been the only officer behaving correctly. Police Officer Markl had continued to hit him in the course of the ensuing interrogations. Markl had been the one hitting him most of the time, though, while he had been lying on the floor, others had also kicked him. On the second day, even a legally qualified person had been present for a short time and had seen that he had been beaten. Police Officer Markl further had attempted to provoke him to hit back. 90% of his injuries had been caused by Markl. The haematoma on his right upper arm had been caused by Markl’s punches. Markl had further kicked him and caused a haematoma on his right or left lower leg; the print of the shoe had later been seen on his trousers. Police Officer Markl had also grasped his hair and had thrown him to the floor. Upon questioning, the applicant stated that there had been no accident when he was taken by car to have his voice compared.
24. Police Officer Trnka stated that he had been working with, inter alia, the Police Officers Markl and Fröhlich. He could not remember whether he had been present upon the applicant’s arrest. He had conducted the questioning of the applicant’s wife. The applicant had been questioned in another room, he had sometimes been there to put questions to the applicant. He had learnt about the injuries sustained by the applicant in the media. He himself had not beaten or kicked the applicant, nor seen that his colleagues had done so. The police officers had not drunk alcohol in the course of the interrogations. Moreover, though working hard, they had always taken a break at least between midnight and 7 a.m.
25. Police Officer Gross explained that he had been leading the particular work unit since 1983, Police Officer Markl had been in this unit for two years, Police Officer Fröhlich for one year and Police Officer Trnka for five years. He had been present at times at the interrogations of both the applicant and his wife. He had not touched the applicant or pulled his moustache, though he remembered that the applicant had a peculiar moustache. At the relevant time, they had worked overtime, but there had not been any particular pressure upon them. He had been informed at that time that the applicant had stumbled in the course of getting out of a police car, Police Officer Markl or Fröhlich had informed him of this. He had not known about any injuries. He had instructed his colleagues to draft a report on the incident. There had been no alcohol in the room where the interrogations had taken place.
26. According to Police Officer Fröhlich, who had joined the work unit in April 1988, Police Officer Markl had conducted the questioning of the applicant in the presence of always two or three colleagues. Upon questioning, he confirmed that a legally qualified person, namely a superior, had been present for a short time at one of the interrogations. No alcohol had been drunk in the course of the questioning. They had worked overtime, but there had been no particular pressure. Fröhlich, stating that he had been present at most of the questioning, denied that the applicant had been bodily assaulted. Fröhlich continued that on 1 June 1988 he had, together with Police Officer Markl, taken the applicant to have his voice compared. Fröhlich had driven and Markl had been at the rear with the applicant who had been handcuffed with his hands in front of his body. The applicant had probably stepped out of the rear left door. Fröhlich indicated that he had not seen the applicant stumble, but heard something like it. When he had turned around, he had seen Markl already holding the applicant. The applicant had said that he was not hurt. The next day the applicant had mentioned the bruise on his upper arm. One of them had informed Police Officer Gross about the bruise, and Gross had advised them to draft a report on the incident.
27 Police Officer Markl stated that he had joined the work unit of Police Officer Gross in May 1988. He had at the time interrogated the applicant, but he had certainly not been alone: in order to avoid unfounded allegations, other colleagues had been present for at least part of the time. Markl denied having used violence against the applicant, and supposed that the applicant and his wife, for unknown reasons, wanted to take revenge on them. As to the course of the interrogations, Markl specified that at the beginning the applicant had denied any involvement in the offences at issue; only in the further course of questioning had he given the decisive hint as to the identity of the actual culprit. As regards the injuries sustained by the applicant, Markl confirmed his statements in his report of 1 June 1988. During the drive, he had been sitting next to the applicant, who had been handcuffed with his hands in front of his body, in the rear of the police car. Markl continued that he had opened the door on the applicant’s side from the outside. The applicant had stumbled while getting out and fallen, knocking his right arm against the doorframe. Markl had only been able to stop him falling. The applicant had said that he was all right. Only the next day had he mentioned a bruise on his right upper arm. Markl could not remember any other injuries or a footprint on the applicant’s trousers. Markl clarified that he had written the report concerning the accident on 2 June, but had put the date of the incident. Markl further confirmed that a superior, possibly presented as a legally qualified person, had shortly been present at one of the interrogations. Markl also indicated that he worked normally 60 to 70 hours overtime per month; at the relevant time he had possibly done 80 to 90 hours overtime. Moreover, they had not consumed any kind of alcohol during their work."
16. On 13 October 1989 the trial of Police Officers Trnka, Gross and Markl on charges of assault occasioning bodily harm opened in the Vienna District Criminal Court, composed of a single judge. During the trial the judge examined the accused and several witnesses, namely Mr and Mrs Ribitsch, Police Officer Fröhlich, Mr Pretzner, the head of the three units of the Security Branch of the Vienna Federal Police Authority, and all those who had seen the applicant’s injuries or been informed by him of the ill-treatment he had undergone. These included Dr Scheidlbauer, the general practitioner, Dr Tripp, the psychologist, Mr Buchacher, the journalist, and Mr Lehner, the photographer.
In its report the Commission gave the following account of their statements:
"30. Police Officer Markl referred to his earlier statements. Upon questioning, he explained that due to information given to him, the investigations concerning the case in question had been transferred from another work unit at the Vienna Federal Police Authority. Following their arrest, the applicant and his wife had been brought to the Police Authority. Questioned about the further development of matters regarding the applicant, Police Officer Markl stated that the applicant’s identity had been established and he had been questioned about the offences concerned. Markl confirmed that Police Officer Fröhlich had been present in the course of the interrogation. However, he could not remember whether Police Officers Gross and Trnka had been also there. The applicant had claimed to be innocent, and even claimed that he had nothing to do with drugs and in particular opium. He had complained that the police was again creating difficulties. Moreover, the applicant had repeatedly indicated that he would cause troubles and ridicule them. Police Officer Markl then described the events when the applicant had been taken out of the building of the Police Authority: The applicant had been handcuffed with his hands in front of his body, he had been sitting in the rear of the police car. Upon arrival, Markl had opened the door where the child lock had been in position as a precautionary measure. When getting out of the car, the applicant had lost his balance, had fallen and hit his right arm against the door frame. He had shown his injury, a round bruise, but had not wanted to see a doctor. Upon further questioning by the public prosecutor, Markl stated that, upon the arrest, a piece of hashish had been found upon the applicant, nothing upon his wife. However, police informers had told them that the applicant had been dealing with heroin and had been selling washing powder to drug addicts. This information had not been recorded as the informers were not prepared to make a statement for the record. Upon further questioning, Markl indicated that, having first denied any relationship to one of the victims, the applicant and his wife had later admitted a close relationship.
31. Police Officer Trnka first made some more general remarks about the organisation and distribution of work between the three units dealing with drug offences. He remembered that he had been present at the arrest of the applicant and his wife and that he had interrogated the applicant’s wife. Though he had not assisted in the questioning of the applicant in the adjoining office, he had occasionally come to put questions to the applicant. They had mainly inquired about discrepancies in the spouses’ statements about their alibi. He had learnt about the injury sustained by the applicant only after his release.
32. Police Officer Gross, the head of the work unit concerned, also explained that following information obtained by Police Officer Markl on the particular case, it had been transferred from another work unit which had initially conducted the investigations. He had seen the applicant for the first time during the interrogation in the afternoon. Together with Police Officer Trnka he had questioned the applicant’s wife, but also the applicant in order to verify their alibi, as there had been discrepancies in their statements. As regards the applicant’s injury, he remembered that either Police Officer Markl or Police Officer Fröhlich had informed him about the incident in the course of the escorted visit. He had instructed them to draft a report. Being asked in detail about the applicant’s allegations of ill-treatment, Gross stated that it appeared practically impossible to pull the applicant around by his moustache without leaving injuries to his face.
33. The applicant, heard as a witness, stated that, following his arrest in the late morning, he had first been questioned in the late afternoon by Police Officers Markl and Fröhlich, in particular about his alibi. Violence had been used, Gross had pulled him around the room by his moustache, and he had been slightly hit on his head. In the afternoon of the second day, he had again been interrogated, and because he had refused to admit that he had given drugs to the two persons who had subsequently died, he had been beaten every half-hour. He had also been kicked while lying on the floor, and had therefore not seen the persons who had kicked him. Police Officer Markl had hit him on the upper arm and kicked him. On one occasion, a legally qualified person had been present who had not stopped the beatings. Police officers from another group had also been present; there had been continual changes. In between, he had been escorted to have his voice compared. Questioned about the escorted visit, the applicant denied that he had stumbled while getting out of the car. He also confirmed that Police Officer Fröhlich had not hurt him.
34. The applicant continued that he had been released on 2 June 1988 at the same time as his wife; they had gone home where he had met his brother and a psychologist, Dr Tripp, with whom he was acquainted. He had only later noticed that a footprint on his trousers was consistent with an injury to his leg. After having taken a shower and changed clothes, he had met the journalist Buchacher. Subsequently he had gone to the hospital. Two fingers of his right hand had been numb. On the next day he had got a stiff neck, he had vomited. The applicant stated that he had not eaten for two days and that he had a nervous stomach. He further stated that he had health problems due to the fact that Markl had pulled him by the hair off a chair and on to the floor.
35. The applicant’s wife stated that she had been questioned by Police Officer Trnka, subsequently cross-examined by four persons and later by Police Officers Markl and Fröhlich. She had been released at the same time as her husband who had told her immediately that he had been hit and beaten and pulled by his moustache and hair. She had seen the bruises mentioned by him, and also the shoe-print on his trousers. Her husband had said that Police Officer Markl had caused the injuries. Her husband had complained about pain in the neck, headache, and later a feeling of numbness in his right hand.
36. Police Officer Fröhlich was next heard as a witness. He stated that following a tip-off about who had given the deceased the drugs the case had been transferred to their work unit. Because of the rivalry existing between the units, information of such kind would not be passed on. Upon his arrest, the applicant had said that he would cause difficulties. However, during his interrogation, the applicant had been quite calm. Fröhlich denied having seen that the applicant had been hit. As regards the escorted drive, Fröhlich indicated that he had parked the police car rather close to another car. Police Officer Markl had opened the door for the applicant. According to Fröhlich, there had been a noise and, turning around, he had seen that Markl was holding the applicant. Fröhlich confirmed that Police Officer Gross had advised them to draft a report on the incident.
37. The applicant’s doctor, Dr Scheidlbauer, confirmed that he had examined the applicant who had been undressed. The applicant had several haematomas, the largest on his right upper arm. Scheidlbauer had the impression that the applicant had either bumped against something or had been hit. Scheidlbauer excluded that a fall against a doorframe could have caused these haematomas. The applicant had not indicated that he had been hit by the police. Scheidlbauer had not ascertained injuries to the legs, but there were other bruises and the applicant had complained about vomiting and headache. The applicant had not had a concussion but, as a consequence of a cervical syndrome, had been unable to turn his head. Upon questioning, Scheidlbauer stated that such a cervical syndrome could have several causes, inter alia, a cold or the fact that somebody had been several times pulled by his hair. However, the cause could not be objectively established.
38. The psychologist Tripp, who had seen the applicant after his release, confirmed that the applicant had told him about his arrest and detention and about having been hit and maltreated by the police, in particular one police officer. Tripp further said that he had not looked for any injuries. He also stated that he had not for a moment had the impression that the applicant had made up his story.
39. The court next heard Mr Pretzner, the head of the section - with three work units - at the Vienna Federal Police Authority which had been responsible for the investigations in the opium poisoning cases. Pretzner first explained the organisation and distribution of work between the units and, in this context, excluded rivalry between the units. Moreover, Pretzner stated that he had been present at the questioning of the applicant by Police Officers Markl and Fröhlich for about ten minutes. Pretzner remembered that he had advised the applicant that a confession could result in the court passing a more lenient sentence. Being confronted with the applicant’s allegations, Pretzner denied that the applicant had been tortured or beaten; rather, the atmosphere had been friendly.
40. The applicant’s sister-in-law, Mrs Hoke, described the state of the applicant and his wife following the release from detention. Mrs Hoke confirmed in particular that she had seen the bruise on his right upper arm and that the applicant had told her that he had been pulled around by his hair, thrown to the floor, punched and that two or three police officers had been present most of the time, the most brutal one having been the Police Officer Markl. She could not remember having seen a shoe-print on the applicant’s trousers.
41. [The applicant’s brother] I. Ribitsch stated that when they had met at the applicant’s apartment the applicant had told him that he had been subjected to physical violence while in detention, namely that he had been beaten, kicked and pulled by the hair to the ground. I. Ribitsch had seen several bruises on the applicant’s body, and a shoe-print on the applicant’s trousers. The applicant had also told him that he had problems with his stomach and had vomited.
42. The applicant’s sister-in-law, Mrs Hoke, and his brother I. Ribitsch were subsequently questioned about whether the applicant had mentioned an accident in the course of an escorted visit. Mrs Hoke stated that the applicant had mentioned that one of the police officers had told him that this was the cause of his injuries. I. Ribitsch had not heard about this.
43. The reporter Buchacher had been informed by the applicant’s sister-in-law, Mrs Hoke, about the applicant’s allegations of ill-treatment in the course of his police detention. Buchacher had thereupon arranged by phone a meeting with the applicant. Buchacher had been shown several injuries, haematomas on the applicant’s right arm, the largest on the outside, one or two smaller on the inside. Buchacher had photographed them the next day for the purposes of a story in a magazine. Upon questioning, Buchacher indicated that the applicant had told him that his voice had been compared, but not that he had fallen out of the police car.
44. Buchacher then turned to read from the notes which he had made in the course of the conversation with the applicant at the time according to which the applicant had given the following account: the head of the group had pulled him by the beard and hit him on the head with the flat of his hand; during the first interrogations he had been insulted, but not yet been hit. Following the escorted visit to the Acoustics Research Institute, the police officers had shaken him by the feet and hands and beaten him for about twenty minutes. There had been bottles of wine in the office and the police officers had been smelling of alcohol. Police Officer Fröhlich had behaved correctly and not hit him, Police Officer Markl had hit him the most. They had also threatened to place his children at a children’s home. Only at the last interrogation in the morning before his release, all police officers, including Markl, had been friendly and polite.
45. Buchacher also indicated that he had seen a footprint on the applicant’s trousers which appeared to have been dragged over the floor. Buchacher continued that he had verified that the shoe-print coincided with a haematoma on the applicant’s leg below his knee. Upon questioning, Buchacher stated that he did not have the impression that the applicant had been acting.
46. The photographer Lehner, a colleague of the journalist Buchacher, confirmed that he had photographed the injuries suffered by the applicant, namely a severe bruising on his right upper arm. He also remembered injuries to the applicant’s legs. He had not taken photographs of the smaller injuries as they would not have been visible."
17. At the end of the trial the District Criminal Court found Police Officer Markl guilty of assault occasioning bodily harm, within the meaning of Article 83 para. 1 of the Criminal Code (Strafgesetzbuch), and sentenced him to two months’ imprisonment, suspended, and three years’ probation. It also ordered him to pay Mr Ribitsch the sum of 1,000 Austrian schillings (ATS). The other two police officers, Mr Trnka and Mr Gross, were acquitted.
In its judgment of 13 October 1989 the court gave a brief account of the criminal investigation, referring to the pressure the officers in Mr Gross’s unit had been under to find the guilty person and the many hours of overtime they had put in on that account. It then described the ill-treatment suffered by the applicant while in police custody and excluded the possibility that his injuries could have been caused accidentally. The court based its judgment on the evidence given by Mr Ribitsch, who had made an excellent impression in the witness box, and by the witnesses, particularly the journalist who had seen the applicant on the day when he was released from police custody and had taken notes. It went on to say:
"In summary, the court therefore notes that the injuries sustained by Ronald Ribitsch were seen by several people who were not in any way involved in the events giving rise to the case. These injuries consisted of several bruises - not a slight abrasion or a small bruise - on the upper right arm. The claim that a cervical syndrome was sustained is credible, given the description of how it occurred, namely by the head being pulled violently backwards by the hair. It is a fact recognised by the courts (gerichtsbekannt) that it is impossible to prove the existence of a cervical syndrome by objective means, even using X-rays. To have consulted a medical expert for this purpose would therefore merely have led to a delay in the proceedings. A haematoma about as big as an egg, many other bruises and a cervical syndrome constitute bodily harm. This is not a question for an expert; it is a matter for the court, which it has duly determined in accordance with the consistent case-law.
It is not only the testimony that has so far been heard which is persuasive of Ronald Ribitsch’s credibility but also his excellent memory of the persons concerned. In this connection, the court would refer to the identity parade on 26 June 1989, that is more than one year after the offence (file, item 10). At this identity parade, consisting of a total of nine persons, Ronald Ribitsch did not hesitate for one moment in recognising those involved in the police interviews, and in particular the accused Markl.
Ranged against this evidence is the line of defence established by the accused, which can only be described as disquieting. Both he and his defence lawyer, as well as his superior officer, Mr Pretzner, attempted at the trial (file, page 114 in item 25) to make Ronald Ribitsch out to be a despicable, work-shy individual. Apart from the fact that an officer of the Security Branch does not have the right to beat someone up in order to induce him to make a confession, simply because he is unemployed, what is noteworthy here is the obviously misguided attitude of the accused to his legal obligations. In his efforts to portray the witness Ribitsch as a depraved individual, he suddenly claimed at the trial that the two anonymous callers had been Wilhelm Puschl and Ursula Hennemann. He had, he stated, in the meantime learned from them that ‘Ribitsch [was] a despicable creature (eine miese Kröte) because he [sold] washing powder to the poorest of the poor, the drug addicts’ (file, page 128 in item 25). When the court asked him whether he had reported this, he was forced to reply that he had not. He subsequently went on to entangle himself in more and more contradictions concerning the statements made by these two witnesses (file, page 129 in item 25). If the accused’s claim were really true this would mean that an officer of the Security Branch, who had good reason to suspect someone of, at the very least, deliberately inflicting grievous bodily harm by selling washing powder he passed off as heroin, did not consider it necessary in any way at all to perform his duty under Article 84 of the Code of Criminal Procedure. The conclusion must be drawn that the accused Markl would prefer to allow criminal acts to be committed with potentially fatal consequences than to run the risk of having people say that he now wants to pin something on Ribitsch - which he is obviously afraid of (see page 129).
With regard to the application for a forensic doctor to be appointed with a view to showing that the injuries and the haematoma could also have been caused by a fall against the edge of the car door and that the other bruises on the inside of the upper right arm were caused when the former suspect’s arm was grabbed, the court notes as follows: The accused Markl himself states in his (wrongly dated) report (file, page 419) that when Ronald Ribitsch was taken away for the voice comparison to be made he evidently missed his footing getting out of the car, which caused him to lose his balance and his right arm to bang into the edge of the car door, which had remained open. He, Markl, who had been standing right next to him, had managed to grab his upper left arm but had not been able to prevent him from falling. However, due to his intervention the fall had been rendered much less serious, and Ribitsch had only fallen gently on to his behind. Markl therefore himself states that he grabbed Ribitsch by the left arm, so that he cannot have inflicted a bruise on the inside of the right arm by catching him in this way. However, this version of events in the report is also contradicted by the witness Fröhlich (file, page 103 in item 25). This witness stated that there had been a big problem finding a place to park. He had had to park very close to another vehicle, so that he had had a great deal of trouble getting out of his own. It is `very strange’ (lebensfremd) that, although the driver of the vehicle had great difficulty getting out of it on his side, and although, because of the tight squeeze, the suspect at the time (Mr Ribitsch) must obviously also have had trouble getting out - Markl stated that Ronald Ribitsch sat directly behind the driver - there was yet sufficient room for Ribitsch to fall against the edge of the door and then on to his bottom. If one considers Ronald Ribitsch’s size, that is impossible. Furthermore, the witness Scheidlbauer, who is a general practitioner, made a statement as an expert witness that was both credible and `easy to understand’ (nachvollziehbar), namely that whilst the largest bruise had been on the upper right arm it had not been the only one there. He continued by drawing attention to a phenomenon that the courts have recognised in many previous cases, namely that a person who falls against a hard edge normally has a graze or a skin wound, whereas when a person falls against or is struck by something without sharp edges, whether it is something with a large surface area or a fist, it is not the surface that is affected but the soft tissues underneath the skin (file, page 107). Similarly, a cervical syndrome could be the result of Ribitsch’s head being violently shaken.
In law, both the objective and the subjective elements of the offence have been made out and Josef Markl is therefore guilty of the offence of assault occasioning bodily harm as defined in Article 83 para. 1 of the Criminal Code. The conditions laid down in Article 42 of the Criminal Code are not satisfied since this kind of behaviour cannot be classified as a trivial offence. Moreover, the specific, and above all general, requirements of deterrence militate against the application of this rule. Josef Markl was unable to prevent himself from committing the acts in issue in the instant case, even though he must have known that similar proceedings (where the facts were more serious) had already been brought against one of his superior officers, Mr Gross.
In sentencing the accused, the court considers the fact that the accused has no previous convictions to be a mitigating circumstance. On the other hand, his particularly brutal conduct constitutes an aggravating circumstance. Given a possible maximum sentence of nine months, the sentence imposed of two months is reasonable in view of the offender’s personality and the degree of culpability. For general reasons of deterrence - more and more accusations directed against the brutal policemen (prügelnde Polizisten) of the Security Branch have been made in recent years - a fine would not have been sufficient.
In view of the length of prison sentence imposed, it must, however, be assumed that the threat of its execution will be sufficient to deter Josef Markl and others from committing criminal acts. For this reason, the court has been able to impose a suspended sentence."
18. Mr Markl appealed against the judgment to the Vienna Regional Criminal Court (Landesgericht für Strafsachen).
19. By an interlocutory decision of 2 March 1990 the court ordered an expert opinion to be produced by the University of Vienna Institute of Forensic Medicine concerning the probability of there being a causal connection between Mr Ribitsch’s injuries and the accident which had allegedly occurred when he was taken out under police escort, and the credibility from the medical point of view of the applicant’s statements regarding the ill-treatment he had undergone.
20. After interviewing both Mr Ribitsch and Mr Markl and organising a reconstruction of the applicant’s alleged fall against the rear door of the police car, the expert from the Institute of Forensic Medicine summarised his findings as follows:
"Therefore, judging by Meidling Accident Hospital’s medical records, Ronald Ribitsch had a group of bruises on the outside of his upper right arm covering an area of 2 by 3 cm. Moreover, the findings of the neurological examination also contain a description of bruising to the inside of the right arm. Thus, the only injuries established by doctors were the bruises on the outside and inside of the upper right arm described above. These bruises must be regarded as minor and are to be interpreted as the result of dull blows to these parts of the body (lokale stumpfe Gewalteinwirkung). They are not likely to result in more than 24 days’ sickness or unfitness for work.
Whether there was further bruising in the area of one armpit and below the right knee must be left to the judge’s assessment of the evidence, as no medical findings were available to form the basis for an opinion on this question. The decisive factor is the credibility of the witness evidence. Even if one assumes that these haematomas existed it would make no difference to the assessment of the consequences of the injuries described above.
The general practitioner Dr Fritz Scheidlbauer diagnosed a cervical syndrome and pointed to vomiting, headaches and a raised body temperature. However, the neurological examination conducted at Meidling Hospital did not reveal any evidence of a head injury or a displaced cervical vertebra. These symptoms can be interpreted in this case as non-specific complaints, resulting, for example, from a general infection (Allgemeininfekt) (Ronald Ribitsch stated that he was suffering from diarrhoea). On the other hand, from the point of view of forensic medicine, no connection can be proved with any trauma that may have been suffered.
The results of the test carried out with the car - no big differences are to be expected with a VW Golf - showed that the bruising to the outside of the upper right arm was roughly consistent as far as its position was concerned with the bruise on the outside of the upper arm described in the outpatient records and visible in the photograph. From the medical point of view these injuries must be described as non-specific injuries, and they only support the conclusion that this area of the body was violently struck by a blunt ‘instrument’, without it being possible to conclude from the nature of the damage what kind of instrument it was. The possibility cannot therefore be excluded that the injury was caused by a bump against the car door.
Even if one proceeds upon the assumption that the injuries described by the witnesses existed, the general diagnosis must, on the whole, be described as non-specific, so that no certain conclusion can be drawn from the medical point of view as to whether there was maltreatment, although blows to the upper arm and, perhaps, a kick in the knee area cannot be excluded. However, serious ill-treatment lasting several hours cannot in any case be deduced from the overall pattern of the injuries.
However, the version submitted by Josef Markl, namely that Ronald Ribitsch fell against the car door can explain only one of several injuries that may have been sustained."
21. At the hearing on 14 September 1990 the expert’s report and a statement by the "police detention centre" to the effect that the prison doctor had seen Mr Ribitsch at 8 a.m. on 1 June 1988 and had declared him fit for detention were read out. The court then heard Police Officer Markl, Mr Ribitsch and the expert from the Institute of Forensic Medicine.
In its report, the Commission gave the following account of Mr Markl’s and the applicant’s declarations:
"60. Police Officer Markl was again questioned on the accusations against him, brought both by the applicant and his wife. Markl expressed the view that the applicant’s wife had suffered from the fact of her detention as such and had, together with her husband, concentrated upon Markl against whom to bring their accusations. Markl remembered that upon his arrest the applicant had threatened to cause difficulties. At a later stage, when his superior Pretzner had been present, there had, as usual, been a rather calm atmosphere. At the questioning on 2 June 1988, the applicant had shown him the bruising on his right upper arm, but had not wanted to see a physician. Markl also repeated his version of the incident upon the applicant’s escorted visit.
61. The applicant was questioned about his professional training and his past occupations, his financial situation, furthermore about his contacts with drugs. Questioned about the alleged escalation of the interrogation, the applicant stated that the police officers had wished to find a culprit by any means. As regards the first questioning on 31 May 1988, he stated that Police Officer Gross had disliked one of his answers and, therefore, pulled him by his moustache out of the chair and later put him down again. As he had not resisted, his moustache had not been torn off. Police Officer Markl had already hit him at that stage, however not in the face; throughout the beating Markl had attempted to avoid marks as far as possible. The applicant further stated that he had not suffered any accidental incident upon his escorted visit, and he insisted that at the time he had been driven in a two-door car, whereas the reconstruction had been done with a four-door car. The applicant was subsequently questioned in detail about the course of the maltreatment to which he had allegedly been subjected. He repeated his earlier statements that Markl had mainly beaten and kicked him and pulled him by the hair, though, when lying on the floor, he had the impression of being kicked by more than one person. Questioned about the varying statements in the course of the proceedings as to the shoe-print, the applicant insisted that the haematoma had been on his lower leg underneath his knee, as had the shoe-print on his trousers. He could not say with certainty that Markl had kicked him, causing this particular haematoma. The applicant also said that he had chosen counsel to represent him in this matter only after having gathered information. The reporter of the public broadcast had coincidentally been present in a pub where he had told friends about the incidents."
22. At the end of the trial the Regional Criminal Court quashed the District Court’s judgment of 13 October 1989 and acquitted Mr Markl. Pursuant to Article 366 para. 1 of the Code of Criminal Procedure, it referred the applicant to the civil courts in respect of his claim for damages.
In its judgment of 14 September 1990 the court set out its reasons as follows:
"However, the defence lawyer’s written appeal against conviction and his oral pleadings at the hearing on 2 March 1990 cause attention to be focused on the question whether on its own, and in context, the evidence incriminating the accused provides a sufficient degree of reliability to support a verdict of guilty, since it must be borne in mind that the civil party Ronald Ribitsch has been involved, from time to time at any rate, in the drug scene.
The position confronting the appeal court as regards evidence (Beweislage) is as follows: while it is true that the statements made by all the witnesses informed by the civil party Ronald Ribitsch tallied perfectly with his own version of events, which always remained the same, the objective accuracy of this version stands or falls solely on the reliability of the evidence given by Ronald Ribitsch. Moreover, like the court of first instance, the appeal court has no doubt as to the subjective accuracy of the statements made by the witnesses Dr Scheidlbauer, Dr Tripp, Elisabeth Hoke, Robert Buchacher and Peter Lehner, and can therefore base its decision on the record of their testimony, in accordance with Article 473 para. 2 of the Code of Criminal Procedure. Nevertheless, it considers it necessary to inquire into Ronald Ribitsch’s credibility, to weigh up his story against that of the accused and to supplement the evidence adduced in the proceedings at first instance by consulting an expert from the Institute of Forensic Medicine."
With regard to the applicant’s credibility, the Regional Court pointed out that on 6 October 1988 the District Criminal Court had found him guilty of drug offences and ordered him to pay a fine. Moreover, he had been unemployed for several years and lived off his wife’s income and social security benefits. These resources were not, however, sufficient to cover his expenses as a drug user who was the father of two minor children at the material time, or his other personal expenses. The court then summarised the versions given by Mr Ribitsch on the one hand and Mr Markl on the other of the events which had occurred while the applicant was in police custody, and went on to say:
"Neither Ronald Ribitsch’s account nor the testimony of his wife Anita in the file have been able to satisfy the appeal court conclusively that there was a situation which could logically explain why the police interviews degenerated into criminal behaviour. Moreover, seeing that only four police officers were present and asked questions during the interviews, and were busy for part of the time interviewing Anita Ribitsch, that Police Officers Gerhard Trnka and Helmut Gross, who were subsequently acquitted, were cleared of blame by Ronald Ribitsch himself (vol. II, pages 95 and 96) and that neither Ronald Ribitsch nor his wife Anita accused Police Officer Mario Fröhlich, who treated them correctly, of any offence (Ronald Ribitsch to Buchacher, vol II, pages 122 and 123; Anita Ribitsch, vol. I, page 47), the appeal court considers that it remains a completely open question which other Security Branch officers might have been Josef Markl’s accomplices (Mit- oder Nebentäter). The view of the evidence taken by the court of first instance, to the effect that public pressure to solve the crime, which was reflected in the numerous hours of overtime (confirmed by the Chief of Police, Dr Bögl, in vol. I, pages 37 and 43), constituted sufficient motivation, does not appear to the appeal court to be capable of bearing scrutiny (tragfähig), since one cannot simply assume that a police officer, and one moreover who had good reason to be aware of the heightened vigilance of the media, would let himself be drawn into criminal acts in a way that defies all logic.
Ronald Ribitsch’s version of events, according to which, `between 3 p.m. and 10.45 p.m. on 1 June 1988 he was questioned for periods of about three-quarters of an hour, each time by three police officers, after which two more officers banged his head against the floor and kicked him for a quarter of an hour’ (vol. I, page 27) leads one to expect a large number of injuries, especially to prominent parts of the face. Similarly, Ribitsch’s claim (loc. cit.) that he was hit on the body in such a way ‘that this did not leave many marks but was nevertheless very painful’ would suggest that the officers had gone about their task in a methodical way, but this cannot be reconciled with Ronald Ribitsch’s account, according to which the officers, in their efforts to force him to confess, had lost all control over their actions. This version of events does not tally with Mr Ribitsch’s assertion that it was possible for him to distinguish between the officers questioning him and those who were maltreating him, given that, according to other statements made by Ribitsch, Josef Markl participated both in the interrogation and in the ill-treatment."
The court then turned to the question of the injuries noted on the applicant’s person.
(i) It referred to Mr Markl’s statements to the effect that Mr Ribitsch had lost his balance when he bumped into the car’s rear door and had slid to the ground before he, Markl, could grab hold of his left arm and break his fall. According to the forensic medical report, it was not impossible for the bruises on the outside of the applicant’s right arm to have been caused by this fall, even though the general practitioner questioned by the court of first instance on this subject had stated that this was rather unlikely. Lastly, the expert from the Institute of Forensic Medicine, who had organised the reconstruction of the events, had stated that the more violent Mr Ribitsch’s collision (Anprall) with the car door had been, the more likely it was to have caused the injuries, but that the more it resembled a mere slip to the ground (Abgleiten), the more improbable was the version of the events given by the accused.
(ii) The court added that only one of the witnesses, namely the journalist, had noted the existence of a bruise on the inside of the right arm, which in any case was not by itself proof of ill-treatment. Moreover, Mr Markl had stated in that connection that he could not be sure he had not also grabbed Mr Ribitsch’s right arm to stop him falling.
(iii) As for the applicant’s other symptoms, namely the cervical syndrome, stiffness of the fingers and diarrhoea, the court pointed out that, according to the report from the Institute of Forensic Medicine, these might also have been signs of a general infection.
The court refused the applicant’s lawyer’s request that further evidence be taken, such as re-examination of the witnesses, production of the recording made by Austrian radio, reconstruction of the events with a two-door VW Golf and a psycho-neurological report; it also refused the prosecution’s request for production of the Security Branch log-books so that it could be checked whether a two-door or four-door car had been used. It concluded in these terms:
"Finally, if one considers the fact that the civil party Ronald Ribitsch did not see fit to report the offence, that he has been unable in the course of these proceedings to state why he did not do so, that, for incomprehensible reasons, he chose the course of making a public accusation on Austrian radio and that during the proceedings he became entangled in contradictions concerning the alibi to be proven by the witness Stranner, then there are considerable doubts as to the reliability (verläßliche Tragfähigkeit) of his evidence.
The appeal court is therefore unable to reach a conclusive decision either to reject the accused’s evidence or to accept even in part the evidence adduced by the civil party Ronald Ribitsch with the certainty which alone may be made the basis of a verdict of guilty in criminal proceedings.
..."
23. Mr Ribitsch then applied to the Constitutional Court, which gave judgment on 26 November 1990. It held that the applicant’s arrest, his detention in police custody and the searches carried out at his home had been unlawful and had infringed his right to liberty of person and respect for his home. The police had not been in possession of either an arrest warrant or a search warrant and had not been able to establish the risk of collusion or immediate danger. It ruled that it had no jurisdiction to rule on the question of the insults allegedly uttered by the police to the applicant. As for the ill-treatment he had allegedly undergone, it noted that the three defendants had been acquitted by the lower courts and concluded:
"In the light of this outcome of the criminal proceedings (during which a large body of evidence was presented), the Constitutional Court considers that it is not in a position (außer Stande) to uphold the applicant’s allegations and to consider the claims of ill-treatment made in the application to this court to have been proved beyond doubt. In summary, in the proceedings before the Constitutional Court it was no longer possible, in the circumstances, to clarify the relevant facts any further, nor, consequently, to furnish proof of the alleged human rights violation.
On this point also, therefore - in the absence of a valid object - the application must be declared inadmissible (unzulässig)."
VIOLATED_ARTICLES: 3


ITEMID: 001-71856
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: COGHLAN v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Josep Casadevall;Nicolas Bratza
TEXT: 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.
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 ---
A: Right.
Q: If that’s what you’re gonna do, please stop because I’m not entitled to know.
A: Okay.
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.
Q: Yes.
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?
A: Yes.
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.”
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 ...”.
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.”
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.
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-
anyone who is guilty of the offence;
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.”
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 ...”