ITEMID: 001-23139
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2003
DOCNAME: WARDLE v. THE UNITED KINGDOM
IMPORTANCE: 2
CONCLUSION: Inadmissible
JUDGES: Georg Ress;Mark Villiger;Nicolas Bratza
TEXT: The applicant, Mr Michael John Wardle, is a national of the United Kingdom, who was born in 1975. He is currently in prison in HMP, Wormwood Scrubs. He is represented before the Court by Ms Anne Glen, a solicitor practising in Leeds, and by Messrs Alistar McDonald Q.C. and Nicholas Johnson B.L., both barristers practising in Leeds.
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 20 July 1998 an elderly man collapsed and died during a violent burglary in his home. On 17 August 1998 the applicant was arrested on suspicion of murder. He was questioned 11 times over 5 days and 11 video recordings were made of those interviews. The applicant was then released. Some time later the police conducted extensive covert surveillance operations during the course of which the applicant was heard to make incriminating remarks.
The pathologist’s report of 27 October 1998 recorded that the victim had been suffering from a long term hypertensive heart disease and that a combination of his minor injuries and the fear engendered by the burglary caused his death.
On 5 January 1999 the applicant was re-arrested and on 7 January 1999 he was charged with murder. He was interviewed 11 times over three days (along with a co-accused) during which videos from the covert surveillance were shown to him (image only). The applicant’s legal representative indicated during those interviews that the images on the videos were poor. Videos were also taken of those interviews.
The applicant appeared before the Magistrates’ Court on 8 January 1999 for the first time when he was remanded in custody on the murder charge, the statutory custody time-limit of 70 days to expire on 19 March 1999 according to section 22(1)(b)(I) of the Prosecution of Offences Act 1985 (“the 1985 Act”) and Regulation 4(4)(b) of the Prosecution of Offences (Custody Time Limits) Regulations 1987 (“the 1987 Regulations”). The 19 March 1999 was, subject to an extension of that time-limit or the granting of a new time-limit, therefore the date foreseen for the applicant’s committal on a charge of murder. As later established before the Crown Court, on 8 January 1999, 78 of the witness statements had already been prepared by the police (out of the total 120 statements eventually obtained).
By letter dated 14 January 1999 the applicant’s representatives requested the prosecution to make full disclosure. The response, dated 26 January 1999, indicated that the police had been asked to supply the relevant extracts from the video surveillance, which constituted “key” prosecution evidence in the case against the applicant. On 24 February 1999 the defence again requested the prosecution’s disclosure.
On 26 February 1999 the police submitted its file of the evidence to the prosecution. On 1 March 1999 the prosecution requested further statements to be taken by the police.
In the meantime, the pathologist had been asked to comment specifically on the association between the burglary incident and the victim’s death. On 4 March 1999 the pathologist produced a report leading to the same conclusions as the report of October 1998, albeit expressed more succinctly. On 5 March 1999 the prosecution also received the requested statements from the police.
Between 9 and 11 March 1999 the prosecution served its full file on the defence which included three four-hour videos of the covert surveillance, 22 interview tapes (together with transcripts of those videos) and 66 witness statements and 1600 pages of documents including police interviews. The prosecution confirmed that they were ready for committal of the applicant on a charge of manslaughter, although it reserved its position on the initial charge of murder pending perusal of any evidence received post-committal. The prosecution indicated what parts of the videos and material were relevant for its case.
The applicant’s representative immediately reserved the first date available in the video room in the applicant’s prison (18 March 1999) to view the videos with him. On viewing the videos on that date his representative noted that further copies of the videos would have to be obtained as the images were unclear and the audio was substandard. On 18 March 1999 the defence indicated that it was not ready for a committal hearing as it had insufficient time to fully consider the evidence served.
On 19 March 1999 the applicant appeared before the Magistrates’ Court. The prosecution offered no evidence on the murder charge and formally preferred a new manslaughter charge indicating that it was ready to commit the applicant for trial on the latter charge. The Magistrates’ Court extended the original custody time-limit (finding that the prosecution had acted with due expedition), accorded a further custody time-limit in light of the new charge and adjourned committal proceedings on the manslaughter charge for three weeks to allow the defence to consider the prosecution evidence.
On 22 March 1999 the Crown Court considered and decided the applicant’s appeal from the Magistrates’ Court. In the first place, the County Court found that the preferring of the new charge did indeed give rise to a new custody time-limit:
“... the question is whether any new or amended charge is in substance a different offence, and there is no doubt that manslaughter is a different offence . . . carrying a different mens rea, and . . . significantly different consequences might flow in terms of length of sentence . . . it must follow that the time limit runs de novo from the preferment of the new offence of manslaughter.”
The Crown Court also rejected the applicant’s submission that the prosecution had demonstrated mala fides, which the applicant considered was demonstrated by the similar conclusions in the pathologist’s reports of October 1998 and March 1999 and by the prosecution’s reservation of the possibility of re-entering the murder charge depending on evidence later emerging. It found that the prosecution had not sought to manipulate the custody time-limit by the addition or substitution of a manslaughter charge.
Secondly, it went on to consider the extension of the original custody time-limit, a relevant matter as any refusal of the extension would allow a bail application to be made. The prosecution argued that, although it had a good number of prosecution statements by 8 January 1999, it had considered it preferable to serve the entire prosecution file in March 1999 rather than do so piecemeal between January and March 1999. It considered the case was of some complexity and that there were ongoing enquiries concerning the nature of the charge (murder or manslaughter) to be retained against the applicant. It was of the view that the defence had sufficient time between 11 March and 19 March 1999 to review the documents to be ready for the committal hearing on 19 March 1999. The defence accepted that it was a complex matter, but submitted that the prosecution should have served the substantial material in their possession much earlier and that it had insufficient time to consider all the material and to take instructions prior to the committal hearing, not to mention the fact that the videos eventually served were of unacceptable quality.
The Crown Court judge found that the original time-limit should not have been extended since he had “no hesitation in finding” that the prosecution had not acted with “due expedition”. He found that the prosecution, having been put on notice in early January 1999 that the videos were of poor quality, took until 9 March 1999 to produce further poor quality videos which could not be viewed by the prisoner until 18 March 1999, the day before the hearing before the Magistrates’ Court. He concluded:
“I could go into more detail than that, but I do not think I need to for this purpose. So I find, as I say, that the Prosecution have not acted with all due expedition, and of course one bears in mind that they had many, many of the witness statements in their possession before 8 January [1999], the date of [the applicant’s] first appearance [before the Magistrates’ Court], and they decided to hold on to them until eight days before the expiry of the time-limit. It just will not do.”
The applicant was therefore entitled to apply for bail on the basis that the finding of insufficient expedition by the prosecution constituted “changed circumstances” within the meaning of the Bail Act 1976 (as amended – “the 1976 Act”). During the bail application, the applicant’s counsel clarified that a bail application had not been previously made on the applicant’s behalf. However, since the applicant had previously committed a number of offences on bail and had failed to surrender to bail on at least two occasions, the Crown Court refused bail on the basis that it was believed the applicant would fail to surrender and would commit an offence on bail.
On 20 April 1999 the applicant applied to the High Court for leave to challenge by judicial review the Crown Court’s ruling that a further custody time-limit had been created by the new manslaughter charge.
On 23 April 1999 the applicant was committed to the Crown Court for trial by the Magistrates’ Court.
On 26 April 1999 the High Court rejected the applicant’s leave application, Mr Justice Mitchell delivering the judgment of the court. He noted that, while the Prosecution had acted with commendable speed having received the papers from the police in February 1999, the period of time that had elapsed since the burglary in question was prima facie evidence that the police had not acted with “all due expedition”. He also noted that the substitution of the charge of manslaughter for murder was unnecessary as the Magistrates’ Court could have been invited to commit the applicant on the manslaughter charge but that its substitution led to a new custody time-limit being created. Noting that there was no submission that the prosecution had acted in bad faith, Mr Justice Mitchell found that the substitution of the manslaughter charge, although unnecessary, was:
“a thoroughly desirable course to take, because accused persons should only be charged, committed and tried for offences which are reflected in the available evidence. That thoroughly desirable course, however, at the same time may provide a passport for avoiding the statutory consequence of thoroughly dilatory preparation.”
Mr Justice Mitchell did add that he considered the law to be somewhat unsatisfactory:
“The purpose of the [1987] Regulations has been stated and emphasised time and again. Once the custody time limit of 70 days has expired, the onus is fairly and squarely on the prosecution to seek and to justify, in accordance with section 22(3)(b) of the 1985 Act the granting of an extension. No question of the prosecution having to make out a case for an extension arises however if another offence is charged. Providing that offence is supported by evidence, the prosecutor’s position, subject to the abuse point (which I will refer to in a moment), appears to be unassailable. If a charge is withdrawn and another one substituted or a further offence is charged (as an alternative) a new custody time limit is still created. This, quite legitimately, can happen more than once. New custody time limits could follow, one after the another, without there having been the slightest variation in size or content of the evidential canvas, but simply as a consequence of the prosecutor’s decision to found a charge or a different charge or an alternative charge on a particular area of the evidential material. However dilatory the preparation, however late in the day the late charge is preferred, the prosecution’s position may thereby be protected.
For the claim “abuse of process” to succeed, bad faith must be established. That is a heavy burden to discharge. It is not altogether clear on the authorities whether the charging of an offence justified on the evidence, but solely for the purpose of creating a new custody time limit, itself amounts without more to bad faith. If it does not, then it is difficult to see how there could be any effective challenge to these practices. This considerable measure of latitude which has been extended to prosecutors seems to me to be wholly inconsistent with the purpose of Regulation 4, because, in effect, it enables the prosecution to bypass the requirement in section 22(3)(b) [of the 1985 Act] that any extension of the time limit has to be justified by showing, under the amendment to section 22(3)(b) introduced by paragraph 43 of the Crime and Disorder Act 1998 (which appears not yet to be in force), not only all due expedition but also due diligence.”
Mr Justice Mitchell certified a point of law of public importance for the House of Lords to consider, namely:
“When in a magistrates’ court does the charging of an offence cause a fresh custody time limit to run.”
On 18 May 1999 the Crown Court considered a new indictment including charges of manslaughter, wounding with intent and aggravated burglary. The applicant pleaded not guilty. However, at his trial on 22 September 1999 he pleaded guilty to manslaughter, the other charges remaining on the file. On 24 September he was sentenced to 10 years’ imprisonment. His pre-trial custody was deducted from his sentence (Section 9(3) of the Crime (Sentences) Act 1997).
On 8 March 2001 the House of Lords rejected the applicant’s submissions as to the meaning and application of the 1987 Regulations.
Lord Slynn of Hadley noted that a mere change of the details of a charge does not mean that the time-limit begins again since the offence remains the same. Equally, where the initial and second offences are plainly distinct (for example, burglary and rape), the second charge attracts its own time-limit. While the present case fell somewhere between those two situations, it was not possible to interpret the legislation so as to exclude a further time-limit where the initial charge “necessarily includes or amounts to, whether expressly or impliedly, the new offence charged” as suggested by the applicant. A further time-limit would only be excluded where the constituent elements of the new offence were “in substance the same as those of the original offence”, which was not the case of the murder and manslaughter charges.
It was accepted that a new time-limit would not, however, begin if the preferring of a further charge amounted to an abuse of process:
“It has been said that where the new charge is brought in bad faith or dishonestly, that would amount to an abuse of process. In my view the ambit of ‘abuse of process’ is not so limited. If a new charge is brought simply to keep the accused in custody for a longer period, that is clearly contrary to the intention of the legislation and constitutes an abuse of process. As Professor Smith said in his commentary to R v. Great Yarmouth Magistrates, Ex p Thomas, Davis and Darlington ([1992] Crim. LR 116, at p. 117):
‘Perhaps the more specific question to be asked is whether the charges of possession with intent were brought solely for the purpose of retaining the applicants in custody.’
Equally if the court is satisfied that the way in which and the time at which the new charge is added or substituted, indicates that it is not done for the genuine purpose of introducing a new charge on a revised assessment of the case, but is done primarily to keep the accused in custody on the initial charge, then this will constitute an abuse of process. Of course on the other hand if the purpose is genuinely to introduce a new charge on such a revised assessment the fact that the accused begins a new custody period does not in itself constitute an abuse of process.
It was not contended [in the High Court] that there was an abuse of process here and on my view of the construction of the section and the Regulation such a matter does not fall for consideration on the present appeal.”
As to the applicant’s complaint that this manner of proceeding was arbitrary and in violation of Article 5 of the Convention:
“In my view, however, it has not been shown that his detention was arbitrary. No complaint can be made for the first 70 day period: the second is justified because a new charge is brought on the basis of a very substantial body of evidence delivered to the defence shortly before the second charge was laid. It was right to change the charge to the lesser offence of manslaughter in the light of the reconsideration of the case. For the serious offences involved here, I do not consider that the periods prescribed in the Regulations can be said to be unreasonable.
Moreover there was an opportunity to challenge the laying of the second charge and the second detention period as an abuse of the process of the court. That was not done, understandably. There existed a procedure by which the decision of the Magistrate could be challenged by way of judicial review. That was done in this case. During the period when the appellant was in the custody of the magistrates’ court, the provision of section 128(6) of the Magistrates’ Court Act 1980 requires that a [Magistrates’] “court may not remand a person for a period exceeding 8 clear days” [subject to certain exceptions].”
Lord Hope of Craighead also found that the ordinary canons of construction implied that each offence laid before the Magistrates’ Court attracted its own custody time-limit. In his reasoning he described the inquiry of the Magistrates’ Court under sections 4 and 6 of the Magistrates’ Courts Act 1980 (“the 1980 Act”) as follows:
“The function of the magistrates’ court, as described in sections 4 to 6 of [the 1980] Act, is to inquire into ‘an offence as examining justices’: see section 5(1) and section 6(1) and (2) [of the 1980 Act]. If a magistrates’ court is satisfied that there is sufficient evidence to put the accused on trial by jury ‘for any indictable offence’, the court must commit him for trial: section 6(1) [of the 1980 Act]. The implication is that it will take that step with regard to ‘the offence under inquiry’: see the concluding words of the subsection. Alternatively the court may commit him for trial ‘for the offence’ if it is satisfied that all the evidence before the court consists of written statements tendered under the 1980 Act without consideration of their contents.
...
Thus the scope of the inquiry is determined by the information which has been laid before the magistrates’ court. The guiding principle is that the offence should be described in the information clearly and definitely, without duplicity or uncertainty ... The court’s function is to inquire into the offence charged in the information as examining justices. I do not think that there is any ambiguity about what is meant in regulation 4(4) [of the 1987 Regulations] by the word ‘offence’ in these circumstances. It means the offence with which the person is charged in the information which has been laid against him in that court.
It is normal and proper practice for the prosecution to review the charge or charges in the information which was initially laid before the court as further inquiries are conducted into the state of the evidence. This may lead to the bringing against the accused of what are undoubtedly fresh charges, with the consequence that these new charges will attract their own custody time limit.”
As to the compatibility of that interpretation of Regulation 4(4) of the 1987 Regulations with Article 5 of the Convention, he noted that the primary means for controlling the detention of a person while in the custody of the Magistrates’ Court are found in the provisions of the 1976 Act. The function of the 1987 Regulations was to set maximum custody time limits. If a custody time limit expired before the completion of the stage of the proceedings in question, “the accused had to be granted bail”. It was also open to the justices to grant bail at any time before the expiry of the time limit, bearing in mind that section 4(1) of the 1976 Act gave a general right to bail except in certain specified circumstances (Schedule 1 to that Act). Furthermore the accused, if remanded in custody, had to be brought again before the Magistrates’ Court to enable his case to be reviewed at regular intervals, as the general rule is that a Magistrates’ Court may not remand a person for a period exceeding 8 clear days (section 128(6) of the Magistrates’ Courts Act 1980). His detention was thus subject to judicial control in the Magistrates’ Court throughout the period while he is in the custody of that court. Decisions of the Magistrates’ Courts were amenable to judicial review and if that court decided to extend a custody time limit the accused could appeal against that decision to the Crown Court (section 22(7) of the 1985 Act). He continued:
“The effect of these provisions can, I think, be summarised in this way. A person can only be detained in the custody of a Magistrates’ Court while awaiting the completion of a preliminary stage of the proceedings under a procedure which has been laid down by statute, and the effect of Regulation 4 of the 1987 Regulations is that any such detention is subject to strictly defined custody time limits. As to the complaint that this procedure is not precise or accessible because of the possibility of the substitution of fresh custody time limits, I would reject it. The provisions of the Bail Act 1976 and of the Magistrates’ Courts Act 1980, as amended, deal with the procedure for remands in custody in considerable detail with a view to ensuring that every situation is provided for. It is a procedure which is prescribed by law. Detention under this procedure is lawful under domestic law, and it complies with the general requirements of the Convention. If a fresh custody time limit is to be substituted, the procedure under which this is to be done is laid down by statute and the regulation defines the length of the substituted time limit.”
However, he found more substantial the applicant’s complaint that the procedure was open to abuse as a result of arbitrary decisions of the prosecution: Regulation 4(4) of the 1987 Regulation was vulnerable to abuse if it was used for improper purposes. But this, Lord Hope of Craighead considered, was a matter which was subject to judicial control by the justices or the stipendiary magistrates who could find that the new charge was simply a reproduction of the old charge with amendments which were minor or unimportant (and, on this ground, refuse to accept that the new charge gave rise to a fresh custody time-limit) or who could refuse to inquire into the information relating to the new charge on the basis that to do so would be an abuse of the process of the court.
As to what constituted an abuse of process in this context he considered that the essence of abuse of process in criminal proceedings was that the prosecution had “sought to take advantage of a procedural rule for a purpose which can be described as improper or as arbitrary”. Difficulty had arisen because of the suggestion in previous case-law that a complaint of abuse of process had to contain an allegation of bad faith. Having reviewed the relevant authorities, he found that:
“I do not think that it can be doubted that, where dishonesty or mala fides can be established, that will be sufficient to show that there has been an abuse of process. But the concept of abuse of process is not to be confined to cases where there is proof of conscious dishonesty or of an improper motive of that kind. To the extent that the authorities to which I have referred may be taken as indicating the contrary, I would be inclined not to follow them. It seems to me that a broader and simpler test is, in this context, more appropriate. That would be more in keeping with the purpose of Article 5(1) of the Convention, which is to protect the individual from arbitrariness when he is deprived of his liberty.
The true question, as Buxton J indicated in R v. Wolverhampton Justices and Stafford Crown Court, Ex p Uppal (1994) 159 JP 86, is whether the new charge has been brought solely for the purpose of avoiding a custody time limit. The issue can best be tested by requiring the prosecutor to demonstrate why, on the facts of the case, the bringing of the new charge is necessary. If the necessity of bringing the new charge can be demonstrated, the substitution of a new custody time limit will follow according to the rules which regulation 4(4) has laid down. But if the prosecutor is unable to satisfy this test, it will be open to the court to infer that there is an abuse of process because the charge has been brought solely for the arbitrary and improper purpose of substituting a new custody time limit.”
Lord Clyde also found that the 1987 Regulations allowed the substitution of a new time-limit and, further, that that was not incompatible with Article 5 of the Convention:
“The regulation is clear, precise and accessible. There are safeguards for the accused in the recognition by both parties that the court can intervene in the event of the prosecution acting in a way which would constitute an abuse of process. The regulation prescribes relatively short periods for the completion of the relevant stage of the proceedings and the court has a discretion whether or not an extension to the period is or is not to be allowed. Moreover the accused has remedies in law, including that of judicial review. Finally the whole scheme of the regulation has to be seen in the context of the Bail Act 1976 which gives, subject to certain exceptions, a general right to bail.”
Lord Nicholls of Birkenhead dissented. He considered that the substitution of a manslaughter charge, already implicit in the murder charge, allowing the extension of the time-limit was an absurd result which could not have been intended by parliament. The power to grant bail did not address this absurdity since the individual had lost the benefit entirely of fixed time-limits extendable in limited circumstances for which parliament had provided by way of the 1985 Act. The Court’s ability to prevent an abuse of process did not provide an answer since the prosecution had nonetheless exercised its powers and discharged its responsibilities “properly and conscientiously”.
Lord Scott of Foscote also dissented finding that, where the new charge was based on the facts on which the original charge was based and was simply a lesser charge than that originally preferred, the proposition that the preferment of the new charge attracts a new custody time-limit defeated legislative intention.
“In the present case the prosecution did not act with all due diligence and expedition. [The Crown Court] so found and refused the application for an extension. It has not been suggested that [it] was in error. And yet, by introducing the manslaughter charge on the day of expiry of the original custody time limit, the prosecution procured a further 70 days during which the appellant could be kept in custody. It is, of course, true that it was open to the appellant on 19 March to make an application for bail, and indeed he did so. But the new custody time limit defeated his absolute right to the grant of bail under section 4(8A) of the Bail Act 1976 and his bail application was, in the event, refused.
If the committal hearing had taken place on 19 March, as it would have done if the prosecution had not failed to act with all due diligence and expedition, the prosecution could at the same time have substituted the manslaughter charge for the murder charge and the appellant would have been committed to the Crown Court for trial on the manslaughter charge. If the proceedings had taken that course, the period during which he would have been in custody before the committal would not have exceeded the original 70 days.
On this appeal, the critical question for your Lordships, in my opinion, is whether there is a permissible application of section 22 and regulation 4 of the 1987 Regulations that would prevent, in a case such as this, the substituted charge from attracting a fresh 70 day custody time limit. There is no doubt, I believe, that if that result can be reached it ought to be reached.”
His conclusion was fortified by the impact of the requirement to interpret the applicable law compatibly with Article 5 of the Convention. A construction and application of section 22(1) of the 1985 Act and Regulation 4(4) of the 1987 Regulations that enabled the prosecution, by preferring a new charge, to withhold from the accused the release from custody to which he would otherwise have been entitled, in a case where there were no new facts and the new charge was and always had been comprehended within the original charge, would subject the accused to arbitrariness:
“In my opinion, it is open to your Lordships to rule that if an accused, having appeared or been brought before a magistrates’ court on an information charging him with an offence, is then charged with a new offence of which he might, if tried on the original offence, have been convicted (see section 6 (2), (3) and (4), Criminal Law Act 1967), a new custody time limit will not be attracted by the new offence and the accused’s ‘first appearance’ in relation to the new offence will be the date on which he first appeared or was brought before the magistrates’ court on the information or charge relating to the original offence.
If the addition, or substitution, of the new offence has the consequence that the prosecution is not ready to proceed with the committal hearing within the original 70 day custody time limit, it is always open to the prosecution to apply for an extension. Whether the prosecution would obtain an extension would depend on their showing they had acted “with all due diligence and expedition”. The end result would thus be in accordance with the legislative intention.”
Having so concluded, Lord Scott of Foscote provided his view on the meaning of “abuse of process”:
“In my opinion, the requirement of dishonesty or mala fides distracts attention from the true requirements if an allegation of abuse of process is to be made out. The concept of abuse of process is no different in criminal cases from the like concept in civil cases. It involves a use of court process for a purpose other than that for which the purpose in question was intended. It is in that sense that one may speak of some procedural step being taken for an improper purpose and, therefore, constituting an abuse of process. The procedural step will often be accompanied by bad faith or dishonesty — in that a legitimate purpose, not being the true purpose, may be put forward as the true purpose. But bad faith or dishonesty are not essential. What is essential is that court process has been used for some ulterior purpose.
There will be difficulty where the purpose is mixed. The present case may well be an example. There was every reason, it being clear that the known facts did not support a murder charge but only manslaughter, for the withdrawal of the former and the substitution of the latter as soon as practicable. But the timing of the substitution suggests very strongly, to my mind, that it was done in order to forestall the automatic release of the appellant from custody. There was no evidence at all from the prosecution as to its reasons for formally substituting manslaughter for murder on 19 March. The prosecution could simply have informed the defence that the murder charge would not be proceeded with and that they would be seeking a committal on manslaughter. In my opinion, however, if a step in litigation is taken for a legitimate reason, whether or not it is also taken for an illegitimate one, the step cannot be categorised as an abuse of process. The legitimate reason must, of course, be more than merely makeweight or trivial. If abuse of process can be shown, the procedural step taken should, strictly, be regarded as a nullity. ... It is, in my respectful opinion, unanswerable and obviously right. If a new charge is preferred, not with any genuine intention that the accused should be tried on that charge, but simply in order to attract a new custody time limit, the preferring of the new charge is an abuse of process and the new charge should be struck out as soon as that has become apparent.
If there is a genuine intention that the new charge should be proceeded with to trial and it is simply the timing of the new charge that appears to be motivated by an intention to avoid the consequences of the expiry of the original custody time limit, the court cannot, in my opinion, strike out the new charge as an abuse of process. But the circumstances in which the substitution of the new charge took place can, and should, in my opinion, be taken into account in considering whether the accused should be released on bail.
...
If I am right in the present case that the substituted charge of manslaughter should not have been treated as giving rise to a fresh custody time limit, the abuse of process point does not arise. If I am wrong, however, and I understand a majority of your Lordships to take a different view on that point, this was not a case in which the manslaughter charge could have been set aside on abuse of process grounds. However, it was a case in which, on the bail application made to [the Crown Court], the circumstances in which the substituted charge was preferred should have been taken into account. The fact that the prosecution had failed to act with all due diligence and expedition was relevant. So was the fact that there was nothing new which explained why the substitution was being made when it was made. The judge should, in my view, have inferred that a substantial reason for the change was that the prosecution wanted to avoid the custody time limit consequences of their own dilatoriness. A decision to award bail in those circumstances would have reflected Parliament’s intention in introducing the custody time limit statutory provisions.”
Section 4 of the 1976 Act as amended provided, in so far as relevant, as follows:
“(1) A person to whom this section applies shall be granted bail except as provided in Schedule 1 to this Act.
...
(8) This section is subject to section 25 of the Criminal Justice and Public Order Act 1994 (exclusion of bail in cases of homicide and rape);
(8A) Where a custody time-limit has expired this section shall have effect as if, in subsection (1), the words “except as provided in Schedule 1 to this Act” were omitted.”
Paragraph 2 of Schedule 1 provided that a defendant need not be granted bail if the court was satisfied that there were substantial grounds for believing that the defendant, if released on bail, would fail to surrender to custody, commit an offence while on bail or interfere with witnesses or otherwise obstruct the course of justice, whether in relation to himself or any other person.
Under paragraph 9 of Schedule 1 to the 1976 Act, in taking the above decision, the court was to have regard to such of the following considerations, as well as to any other considerations, as appeared to that court to be relevant:
– the nature and seriousness of the offence or default (and the probable method of dealing with the defendant for it);
– the character, antecedents, associations and community ties of the defendant;
– the defendant’s record as regards the fulfilment of his obligations under previous grants of bail in criminal proceedings; and
– except in the case of a defendant whose case was adjourned for inquiries or a report, the strength of the evidence of his having committed the offence or having defaulted.
According to paragraph 9A of Schedule 1 to the 1976 Act, if a defendant (who had been charged with murder, manslaughter, rape, attempted murder or attempted rape) was granted bail and representations had been made as regards the matters mentioned in paragraph 2 of Schedule 1, the court had to state its reasons for granting bail and cause those reasons to be included in the record of the proceedings.
The Criminal Justice Act 1988 made certain additions to Schedule 1 to the 1976 Act for the purpose of ensuring that accused persons would have two bail applications as of right, the second application being a de novo consideration of bail. Subsequently, an accused can make a further bail request if there had been a “change in circumstances”.
Section 22 of the 1985 Act gave the Secretary of State power to set time limits with respect to the preliminary stages of proceedings for an offence. Subsection (1) of that section provides:
“The Secretary of State may by regulations make provision, with respect to any specified preliminary stage of proceedings for an offence, as to the maximum period -
(a) to be allowed to the prosecution to complete that stage;
(b) during which the accused may, while awaiting completion of that stage, be -
(i) in the custody of a magistrates’ court; or
(ii) in the custody of the Crown Court.”
Custody time-limits in the Magistrates’ Court are governed by Regulation 4 which, in so far as relevant, provides:
“(1) ...the maximum period during which a person accused of an indictable offence other than treason may be in the custody of a magistrates’ court in relation to that offence while awaiting completion of any preliminary stage of the proceedings specified in the following provisions of this Regulation shall be as stated in those provisions.
(2) Except as provided in paragraph (3) below, in the case of an offence triable either way the maximum period of custody between the accused’s first appearance and the start of summary trial or, as the case may be, the time when the court decides whether or not to commit the accused to the Crown Court for trial shall be 70 days...
(3) In the case of an offence triable either way if, before the expiry of 56 days following the day of the accused’s first appearance, the court decides to proceed to summary trial in pursuance of sections 19 to 24 of the [Magistrates’ Courts Act 1980] the maximum period of custody between the accused’s first appearance and the start of the summary trial shall be 56 days.
(4) In the case of an offence triable on indictment exclusively the maximum period of custody between the accused’s first appearance and the time when the court decides whether or not to commit the accused to the Crown Court for trial, shall be 70 days...
(5) The foregoing provisions of this regulation shall have effect as if any reference therein to the time when the court decides whether or not to commit the accused to the Crown Court for trial were a reference -
(a) where a court proceeds to inquire into an information as examining justices in pursuance of section 6(1) of the 1980 Act, to the time when it begins to hear evidence for the prosecution at the inquiry...”
Custody time-limits in the Crown Court are governed by Regulation 5 which, in so far as relevant, provides:
“(2) Where -
(a) a person accused of an indictable offence other than treason is committed to the Crown Court for trial; or
(b) a bill of indictment is preferred against a person under section 2(2)(b) of the Administration of Justice (Miscellaneous Provisions) Act 1933,
the maximum period during which he may be in the custody of the Crown Court in relation to that offence, or any other offence included in the indictment preferred against him, while awaiting the preliminary stage of the proceedings specified in the following provisions of this Regulation shall be as stated in these provisions.
(3) The maximum period of custody -
(a) between the time when the accused is committed for trial and the start of the trial; or
(b) where a bill of indictment is preferred against him under the said section 2(2)(b), between the preferment of the bill and the start of the trial,
shall, subject to the following provisions of this Regulation, be 112 days.
(4) Where, following a committal for trial, the bill of indictment preferred against the accused (not being a bill preferred under the said section 2(2)(b)) contains a count charging an offence for which he was committed for trial at that committal together with a count charging an offence for which he was committed for trial on a different occasion, paragraph (3) above applies in relation to each offence separately.
...
(6) Where, following a committal for trial, the bill of indictment preferred against the accused (not being a bill preferred under the said section 2(2)(b)) contains a count charging an offence for which he was not committed for trial, the maximum period of custody -
(a) between the preferment of the bill and the start of the trial, or
(b) if the count was added to the bill after its preferment, between that addition and the start of the trial,
shall be 112 days less any period, or the aggregate of any periods, during which he has, since the committal been in the custody of the Crown Court in relation to an offence for which he was committed for trial.”
In the case of R v. Manchester Crown Court, Ex parte McDonald ([1999] 1 W.L.R. 841) Lord Chief Justice Bingham outlined the three objectives of the 1985 Act and the 1987 Regulations: to ensure that the period for which unconvicted defendants are held in custody awaiting trial are as short as reasonably and practically possible; to oblige the prosecution to prepare cases for trial with all due diligence and expedition; and to invest the court with a power and duty to control any extension of the maximum period under the regulations for which any person may be held in custody awaiting trial.


ITEMID: 001-58924
LANGUAGEISOCODE: ENG
RESPONDENT: GRC
BRANCH: CHAMBER
DATE: 2000
DOCNAME: CASE OF ANAGNOSTOPOULOS AND OTHERS v. GREECE
IMPORTANCE: 1
CONCLUSION: Violation of Art. 6-1 as regards the right to a fair hearing;Violation of Art. 6-1 as regard the length of proceedings;Not necessary to examine Art. 13;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
JUDGES: Nicolas Bratza
TEXT: 7. The first applicant is a lawyer and retired major-general of the Greek army. The seventh applicant is a retired major-general of the Greek army. The other applicants are retired officers of the Greek police force.
8. In 1989 the Minister of National Defence and the Minister of Public Finances authorised the granting, from 1 January 1990, of an award for meritorious service (επίδoμα ευδόκιμης παραμovής) to colonels and their superior officers. The award was fixed at 10% of the main salary. That ministerial decision was subsequently confirmed by the Greek parliament (Law no. 1881/1990).
9. The applicants accordingly lodged claims for an increase in their pensions in accordance with the provisions of Law no. 1881/1990. They lodged their applications on 3 October 1991, 22 October 1991, 24 December 1991, 11 September 1991, 19 November 1991, 12 September 1991 and 18 November 1991 respectively.
10. Their claims were rejected by the Forty-fourth Division of the Public Accounting Department (Γεvικό Λoγιστήριo τoυ Κράτoυς) on 16 October 1991, 22 October 1991, 21 January 1992, 25 September 1991, 20 November 1991, 18 September 1991 and 3 December 1991 respectively, on the ground that the applicants had retired before 1 January 1990, the date on which Law no. 1881/1990 came into force.
11. The applicants appealed to the Second Division of the Court of Audit (Ελεγκτικό Συvέδριo), which dismissed their appeals as ill-founded (decisions nos. 1694/1994, 1446/1993, 1260/1995, 306/1994, 616/1994, 477/1994 and 940/1994 respectively). In particular, the Second Division considered that the award in question could not be considered to be part of the main salary. Accordingly, it could not be taken into account for the purpose of calculating the pensions of officers having retired before the entry into force of the statute providing for the award.
12. On 22 August 1995, 10 October 1994, 13 December 1995, 7 February 1995, 17 April 1995, 2 February 1995 and 17 April 1995 respectively, the applicants appealed on points of law to the Court of Audit, sitting as a full court, which was the court having jurisdiction to examine their appeal.
13. On 22 June 1995 the Greek parliament adopted Law no. 2320/1995, which excluded the award in question from the calculation of pensions paid to officers having retired before 1 January 1990, declared any relevant claim statute-barred and any relevant judicial proceedings pending in any court to be null and void. That Law was confirmed by Law no. 2512/1997 of 27 June 1997.
14. On 4 July 1995 the Court of Audit, sitting as a full court, upheld a claim lodged by another police officer who had also retired before 1 January 1990, and ordered that his pension should be increased (judgment no. 1211/1995). That judgment marked a reversal of the case-law of the Court of Audit. It was followed by two other judgments along the same lines.
15. In judgments dated 26 March 1997 (applicants nos. 2, 4 and 6), 9 April 1997 (applicant no. 1), 14 May 1997 (applicant no. 3) and 26 May 1997 (applicants nos. 5 and 7), the Court of Audit, sitting as a full court, dismissed the applicants' appeals on the ground that they were ill-founded. The Court of Audit pointed out in particular that the award in question could not be considered as a general salary increase; accordingly, it could not be granted to officers having retired before the entry into force of Law no. 1881/1990. The Court of Audit noted, subsidiarily, that even supposing that the award in question could be considered as a general salary increase and the proceedings not declared null and void under to Law no. 2320/1995, the applicants' claims were manifestly ill-founded because the provisions of the above-mentioned statute applied retrospectively.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-57501
LANGUAGEISOCODE: ENG
RESPONDENT: BEL
BRANCH: CHAMBER
DATE: 1987
DOCNAME: CASE OF H. v. BELGIUM
IMPORTANCE: 2
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings
JUDGES: C. Russo;J.A. Carrillo Salcedo;N. Valticos
TEXT: 9. The applicant, who is a Belgian citizen born in 1929, has a doctorate in law and lives in Antwerp. He was struck off the Bar roll of that city and has twice applied unsuccessfully to be reinstated.
10. In 1957, after completing the prescribed period as a pupil avocat in Antwerp, H was entered on the roll and took chambers.
11. In May 1963, the Council of the Ordre des avocats of Antwerp commenced disciplinary action against him for having deliberately given false information to clients.
On 10 June 1963, it struck him off the roll, having satisfied itself that he had wrongly persuaded a client that he (the client) risked arrest if he did not immediately pay a sum of 20,000 BF. The Council had previously dismissed the other charges against H.
On appeal by H, the Brussels Court of Appeal, in a judgment on 31 December 1963, affirmed the decision to strike him off; and on 22 June 1964, the Court of Cassation dismissed H’s appeal on points of law.
12. H was subsequently prosecuted for fraud and unlawfully holding himself out as an avocat; he was in custody pending trial from 2 July to 2 August 1965 and many of his files were seized. He was acquitted by the Antwerp Criminal Court on 19 January 1968 and made an unsuccessful claim for compensation.
13. In 1970, the applicant set up as a legal and tax adviser, after having worked for some time as a commercial traveller.
14. On 25 February 1977, when he was about to apply to have his name restored to the roll, the police again seized documents at his office. On 29 November 1978, the chambre du conseil of the Antwerp Court of First Instance committed him for trial in the Criminal Court for forgery and fraudulent conversion, but the prosecution ended in an acquittal on 18 October 1979.
15. H has no criminal convictions.
16. By a letter of 3 December 1979, the applicant requested the Council of the Ordre des avocats of Antwerp to restore his name to the roll. This application was based on Article 471 of the Judicial Code (see paragraph 30 below).
17. On 17 December, at a sitting of the Council, the bâtonnier (leader) of the Antwerp Bar appointed a rapporteur.
After deliberating on 7 and 28 January 1980, the Council decided to hear the applicant and his counsel.
18. The hearing was held on 18 February. According to H’s counsel, the "exceptional circumstances" justifying his restoration to the roll consisted essentially in the great professional and family difficulties his client had experienced over the previous fifteen years, particularly as he had to confine himself to his occupation as a legal and tax adviser; furthermore his disbarment had not been followed up with any criminal proceedings and the later prosecutions had ended in acquittals.
19. The Council of the Ordre dismissed the application on the same day; although more than ten years had elapsed since H had been struck off, the explanations offered orally by H’s counsel did not disclose any exceptional circumstances such as would justify restoring his name to the roll.
20. On 9 February 1981, the applicant renewed his application. He appended a memorandum criticising the 1963 decision and to which was attached an opinion by a retired procureur général (Principal Crown Prosecutor), B. According to B, the Council of the Ordre should, under Article 29 of the Code of Criminal Procedure, have reported to the Antwerp procureur du Roi (Crown Prosecutor) the matters of which the applicant stood accused; that would have entailed suspending the disciplinary proceedings until the final decision in the criminal trial was known.
21. The Council of the Ordre heard H and his counsel on 21 April 1981. Counsel submitted that the decision to disbar H had been based on the uncorroborated evidence of one of H’s clients, and that from 1963 to 1980 H had run his legal and tax consultancy very satisfactorily. He added that in 1963 the Council of the Ordre had not reported the facts to the procureur du Roi, with the result that no prosecution had been brought and H had not had a chance of securing an acquittal. He also emphasised H’s family difficulties. In addition, he filed a memorandum in which the applicant explained why the retired procureur général B was entitled to give an opinion.
22. The Council of the Ordre dismissed the application at the end of its sitting on 11 May 1981, holding that H had not established that there were exceptional circumstances; in particular, the consequences of disbarment did not constitute such circumstances. In response to the memorandum of 9 February 1981 (see paragraph 20 above), it stated that the relevant procureur général was aware of the facts before the decision was given and had ordered a judicial investigation.
The decision was served on the applicant on 16 June 1981.
23. In Belgium the councils of the Ordre des avocats have exclusive jurisdiction to decide on applications for restoration to the roll.
24. For each of the Bars the Council of the Ordre, together with the bâtonnier and the general assembly, is an administrative organ of the profession of avocat.
25. It consists of the bâtonnier and from two to sixteen other members, according to the number of avocats on the Bar roll and the list of pupil avocats; the Antwerp Council has sixteen members in addition to the bâtonnier.
The members are directly elected by the general assembly of the Ordre, to which all avocats on the roll are convened (Article 450 of the Judicial Code); the election is held before the end of each judicial year.
26. The Council exercises numerous functions of an administrative, regulatory, adjudicative, advisory and disciplinary nature. In the instant case it is sufficient to mention the following.
27. Under Article 432 of the 1967 Judicial Code, which enshrines the case-law of the Court of Cassation on the subject (judgment of 15 January 1920, Pasicrisie 1920, I, p. 24), the Council draws up the roll of avocats and the list of pupil avocats, and no appeal lies from its decisions in this matter. The principle of the Council’s having responsibility for its roll is justified by the need to restrict access to the profession to persons of unimpeachable integrity.
28. It is also the Council’s duty to "protect the honour of the Ordre" and to "maintain the principles of dignity, probity and scrupulousness on which the profession is founded" (Article 456).
29. As a disciplinary body, it punishes "offences and misconduct" (ibid.). It will hear such cases "on an application by the bâtonnier, either of his own motion or following a complaint or after receipt of a written accusation from the procureur général" (Article 457).
The avocat concerned is summoned within two weeks by registered letter and, if he so requests, is granted time to prepare his defence (Article 465). Within eight days of the decision’s being given, it is notified by registered post to the procureur général and the avocat concerned (Article 466).
The main penalties which the Council may impose are warning, censure, reprimand, suspension for not more than one year and striking off the roll or the list of pupil avocats (Article 460). The avocat concerned has a right both of objection (opposition) (Article 467) and, like the procureur général, of appeal (appel) (Article 468). At the time the events in this case occurred (see paragraph 11 above), appeal lay to the Court of Appeal (Article 29 of the Imperial Decree of 14 December 1810 regulating the practice of the profession of avocat and the discipline of the Bar). Today, this jurisdiction is exercised by disciplinary appeals boards, consisting of the President of the Court of Appeal, who presides, and four avocats sitting as assessors (Article 473 of the Judicial Code).
Decisions of the courts of appeal in such matters could be appealed against on points of law (section 15(1) of the Judicature Act of 4 August 1832). The same now applies to decisions of the disciplinary appeals boards (Article 614 § 1 of the Judicial Code).
30. Restoration to the roll of an avocat who has been struck off it is governed by Article 471 of the Judicial Code:
"No avocat who has been disbarred may be entered on a roll of the Ordre or on a list of pupil avocats until ten years have elapsed from the date on which the decision to strike off became final and unless exceptional circumstances warrant it.
No such entry shall be permitted without the reasoned consent of the Council of the Ordre to which the avocat belonged or, as the case may be, the leave of the relevant disciplinary appeal authority if the disbarment was ordered by it.
No appeal shall lie against a refusal to restore to the roll."
This text reproduces with minor variations Article 1 of a resolution adopted on 13 February 1962 by the Council of the Brussels Ordre. That resolution went some way towards removing the finality of disbarment and read as follows:
"The Council of the Ordre may ..., on his application, restore to the roll an avocat who has been struck off.
This measure, which is of an exceptional nature and lies wholly within the discretion of the Council of the Ordre, regard being had to the higher interests of the Bar and to whether reformation of the person concerned is clearly established, shall be permissible only after ten years have elapsed from the time when the disbarment penalty became final.
The Council shall take its decision in accordance with the procedure provided for in Rule 32 of the Rules of Procedure, as in the case of the admission of a pupil avocat. ..."
31. Although Article 471 of the Judicial Code is the last provision in Book III ("The Bar"), Section I ("General provisions"), Chapter IV ("Disciplinary matters"), the Council does not use the disciplinary procedure (Article 465-469) when dealing with an application for restoration to the roll; nor is its decision a disciplinary one (Cass. 18 March 1965, Pasicrisie 1965, I, p. 734). The general law does not make any specific provisions; and the Antwerp Bar did not have any internal rules of procedure at the relevant time. The Council normally takes its decision in the same way and following the same procedure as on an application for admission.
32. According to figures provided by the Government (and which were not disputed), 47 avocats have been struck off in Belgium since the Judicial Code came into force on 10 October 1967. Of the five applications for restoration to the roll made by avocats who have been struck off, three have been successful (Oudenaarde, Charleroi and Courtrai Bars). The Antwerp Bar has had to deal only with H’s applications, which were unsuccessful. None of the decisions in question is available to the public.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-127223
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2013
DOCNAME: CASE OF SERGEY SAVENKO v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect)
JUDGES: Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Mark Villiger;Paul Lemmens
TEXT: 5. The applicant was born in 1975. When lodging his application, the applicant was serving a prison sentence in Temnivka no. 100 Prison, in the Kharkiv Region.
6. On 10 July 2008 the applicant was placed in a disciplinary cell as punishment for a disciplinary offence committed in the prison. Another prisoner was also placed in the same cell for a disciplinary offence.
7. According to the applicant, on 11 July 2008 the first deputy governor of the prison took the applicant to a storage room and asked him for certain information about alleged unlawful activities on the part of other prisoners. When the applicant refused to give any information, the deputy governor cuffed the applicant’s hands behind his back, pushed him onto a mattress and put a plastic bag over his head. When the applicant chewed a hole in the bag, the deputy governor threw several mattresses on top of him and, presumably, jumped on them. The applicant lost consciousness. When he regained consciousness, he noticed injuries on his forearms caused by the handcuffs.
8. On 14 July 2008, during a meeting with his lawyer, the applicant wrote a complaint of ill-treatment on 11 July 2008 and described the circumstances as noted above.
9. On 15 July 2008 the applicant’s lawyer submitted the complaint to the Prosecutor of Kharkiv Region. On the same date the applicant was examined by a doctor, who noted that the applicant had suffered injuries on his forearms. The applicant explained to the doctor that the injuries had been caused to him by the handcuffs used on him on 11 July 2008.
10. On 18 July 2008 the applicant was examined by a medical expert, who had about one year of experience. During the medical examination, the applicant explained that he had caused the injuries himself using coarse yarn. The expert reported abrasions to both forearms and opined that the injuries could have been sustained at the time indicated by the applicant, namely on 11 July 2008, and could have been caused by either metal handcuffs or coarse yarn. The expert classified the injuries as light.
11. On 19 July 2008 the applicant wrote a statement that he had inflicted the injuries himself with the use of coarse yarn which he had detached from a floor cloth. His cellmate stated that the applicant had inflicted the injuries himself using a rope he made out of a floor cloth. His cellmate also stated that the applicant had rubbed salt into the skin of his forearms to deepen the injuries. The first deputy governor of the prison asserted that no physical or psychological pressure had been applied to the applicant.
12. On 21 July 2008 the applicant wrote a statement that the events he had described in his complaint of 14 July 2008 were fictitious and that he himself had inflicted the injuries on his forearms with the purpose of framing the prison administration.
13. On 25 July 2008, following pre-investigation enquiries, the prosecutor’s office responsible for supervising the lawfulness of the enforcement of sentences adopted a decision refusing to open an investigation into the applicant’s allegations of ill-treatment, finding that there had been no corpus delicti. The prosecutor noted that the applicant had withdrawn his initial allegations of ill-treatment and had submitted that the injuries had been self-inflicted, and the applicant’s cellmate had confirmed that the applicant had inflicted the injuries himself using yarn detached from a floor cloth; the medical report had suggested that the injuries might have been inflicted by either metal handcuffs or coarse yarn, as was maintained by the applicant. The allegations of ill-treatment were therefore unsubstantiated.
14. On 28 July 2008 the applicant explained in writing to his lawyer that the prison staff had exerted psychological pressure on him, as a result of which he had stated that his injuries had been self-inflicted.
15. The applicant’s lawyer challenged the decision of 25 July 2008 before the Kharkiv Regional Prosecutor’s Office, arguing that the applicant had retracted his compliant involuntarily and that the evidence supporting the decision was unreliable.
16. By letter of 15 January 2009 the Kharkiv Regional Prosecutor’s Office informed the applicant’s lawyer that his complaint against the decision of 25 July 2008 was rejected as unfounded.
17. On 26 January 2009 the applicant’s lawyer challenged the decision of 25 July 2008 before the Kyivskyy District Court of Kharkiv. The lawyer claimed that the prosecutor’s office had failed to examine the reasons for the applicant’s change in his statements and had not scrutinised whether that change had been voluntary. He noted in that regard that the applicant was under the control of the individual against whom he had made his initial complaint. The lawyer stated that following the impugned decision the applicant had confirmed his initial allegation of ill-treatment and referred in this regard to the applicant’s statement of 28 July 2008. Furthermore, the applicant’s cellmate had not been questioned in detail about the incident and the medical examination had not been comprehensive.
18. On 23 March 2009, in response to a request made by the applicant’s lawyer, a medical expert, whose experience exceeded thirty-seven years, examined the medical documentation in respect of the applicant’s injuries. The expert issued a report in which he concluded that the applicant’s injuries could not have been inflicted by yarn or rope; there was no indication that salt had been applied to the affected areas of skin; and the applicant’s initial statements that the injuries had been caused by metal handcuffs corresponded to the objective medical information.
19. On 12 May 2009 the court upheld the decision of 25 July 2008 as lawful and substantiated. It noted that: in the course of pre-investigation enquiries the applicant had denied his initial allegation of ill-treatment; his statement that his injuries had been self-inflicted was consistent with the other evidence in the file which could not be disproved by the medical report of 23 March 2009; and the applicant’s explanation that he had had the aim of framing the prison administration by injuring himself refuted the arguments advanced by the lawyer. The claim that the applicant had been vulnerable during the pre-investigation enquiries was considered groundless, unsubstantiated and farfetched. The applicant’s lawyer appealed.
20. On 4 June 2009 the Kharkiv Regional Court of Appeal rejected the appeal as unfounded. It noted that the allegation of ill-treatment had been subsequently withdrawn by the applicant and had been refuted by the other evidence in the file. It concluded that the prosecutor’s office had correctly refused to open an investigation and the first-instance court had taken a lawful and substantiated decision.
21. On 14 December 2009 the Supreme Court rejected the applicant’s lawyer’s cassation appeal as unfounded.
22. The relevant provisions of the Code of Criminal Procedure of 1960 can be found in the judgment in the case of Davydov and Others v. Ukraine (nos. 17674/02 and 39081/02, § 112, 1 July 2010).
VIOLATED_ARTICLES: 3


ITEMID: 001-60672
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2002
DOCNAME: CASE OF BECKLES v. THE UNITED KINGDOM
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings
JUDGES: Matti Pellonpää;Nicolas Bratza
TEXT: 7. On 3 January 1997 the applicant and a co-defendant, M., were convicted of the robbery, false imprisonment and attempted murder of Mr Mohamed Mohamoud. The applicant was sentenced to fifteen years’ imprisonment. A third co-defendant, W., was convicted of robbery and false imprisonment.
8. According to the prosecution’s case, on 3 January 1996 Mr Mohamoud, who had spent some of the day selling Khat (a stimulant leaf), picked up W., a prostitute, and arranged to go to her home for sex. W. lived in a fourth-floor council flat which was also occupied by M. When they arrived there were three men, a woman and two teenagers in the flat. Mr Mohamoud was held by the applicant and searched at knife-point by M. who took thirty to forty pounds in cash from him and then left to buy drugs. M. later returned with a quantity of crack cocaine which the occupants of the flat, but not Mr Mohamoud, smoked.
9. Mr Mohamoud was then searched a second time by the applicant and W. and a further sum of money was taken from him. He was prevented all this time from leaving the flat by the applicant.
10. At some stage M.’s mood changed under the effects of the drugs and he became angry. M., together with the applicant and an unidentified woman, lifted Mr Mohamoud up and threw him out of the window. He fell four floors. He survived, although he was left paralysed from the waist down. The occupants of the flat made no attempt to call an ambulance. He managed to attract attention by throwing stones at the window of a ground-floor flat. An ambulance eventually arrived to take him to hospital.
11. M. was arrested on 13 January 1996, the applicant on 24 January and W. on 26 January.
12. The applicant was cautioned by the police 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.”
13. The applicant then told the police:
“I’m relieved. I’ve expected this every time I’ve been to the shops.”
14. When being taken to the police station he further stated:
“He wasn’t pushed. He jumped. How is he?” and “I can tell you everything, he jumped.”
15. The applicant was advised to wait until he was interviewed at the police station.
16. At the start of the interview on 24 January 1996 the applicant’s solicitor informed the police that he had had a lengthy private conversation with his client and had advised him not to reply to any questions at the present time. His reasons were based on what he had been told about the allegations and his view that it would not be reasonable for the applicant to answer questions at that stage. He informed the police that the applicant would be willing to take part in an identification procedure.
17. The applicant was reminded by the police that he was under caution and he confirmed that he understood the implications of the caution. Thereafter, the applicant answered “no comment” to each question and in particular did so when asked whether he was present at the flat at the time of the offences, whether he knew Mr Mohamoud, whether the latter was thrown out of the window and whether he would like to offer any account of the events in question. The applicant points out that the police never put to him his remark “He wasn’t pushed-he jumped” (see paragraph 14 above). The applicant submits that this statement was at the core of his defence and should have been referred to during interview.
18. At the end of the interview the applicant was reminded of the terms of the caution.
19. On 31 May 1996 Mr Mohamoud identified the applicant and the other co-accused in a videotape identification procedure conducted at the hospital where he was being treated.
20. On 17 September 1996 the applicant was again interviewed by the police in the presence of his solicitor and under caution. On that occasion he admitted being in the occasional presence of Mr Mohamoud at the flat and being in the flat on the night of 3-4 January 1996. The applicant denied being in the room when Mr Mohamoud fell from the window and repeated that Mr Mohamoud had not been pushed out. He stated that Mr Mohamoud had not been threatened and that “he was sitting there quite happy”. The applicant declared that he had been told by W. that Mr Mohamoud had “gone out the window”. He had not believed this and looked out to check. He saw Mr Mohamoud lying on the ground below. He did not go to help him because he was “scared” and thought he was dead. The applicant admitted that on the day(s) in question he was the only person in the flat who fitted the very distinctive features in the description given by Mr Mohamoud of his attackers.
21. At his trial the applicant testified that he had seen Mr Mohamoud drinking beer in the flat and spoke to him briefly on one occasion. He learnt of the incident from W. who informed him that “he’s gone out of the window”. The applicant thought she was joking. He went into the living room, looked out of the window and saw Mr Mohamoud lying on the ground below. W. then told him that Mr Mohamoud had jumped out of the window. He watched the police and ambulance arrive from a neighbouring flat.
22. When asked during his evidence why he had not answered some or all of the questions put to him during the police interview the applicant replied that he had done so on the advice of his solicitor.
23. During the course of the applicant’s evidence, and without seeking the views of the applicant’s counsel in the absence of the jury, the trial judge asked the applicant if he was prepared to testify as to what he had told his solicitor prior to the first interview during the lengthy consultation. His counsel stated that since the question had been asked in the presence of the jury he would not object to the question being put to the applicant. The applicant then stated that he too had no objection to answering the question. The matter was not thereafter pursued by the prosecution or the trial judge.
24. In his summing up to the jury the trial judge, with reference to section 34 of the Criminal Justice and Public Order Act 1994, directed the jury in the following terms:
“... you may draw such inferences as seem to you to be fair and proper from that failure of [his] to mention [the points identified in his interview relating to his presence in the flat on that evening]. You could, for instance, infer that the [applicant and W.] have fabricated their evidence, made it up, after those first interviews. You could infer that they were indeed biding their time and seeing whether or not they would be identified. That failure to mention the sort of things or give answers to the sort of questions that I have listed, as [the applicant] failed, cannot of itself prove guilt. So, of course, if you were not sure of [Mr Mohamoud’s] identifications of any of these defendants, that would be the end of the case even if you thought they were behaving in the way I have just described over their first interviews. But although they cannot of themselves, those failures, prove guilt, you may hold that failure against them in deciding whether he is guilty. You don’t have to. It is for you to decide.
[The applicant] told you that his reason for not answering some of the questions was that he had received advice from his solicitor that he should make no comment ... Of course, we have – you have – no independent evidence of what was said by the solicitor, but if simply saying ‘Oh my solicitor advised me not to answer questions’ was by itself a good and final answer, any competent solicitor and a defendant would have the power to strangle at birth any interview and that would make, you may think, a mockery of the Act of Parliament which allows a jury, if they think it is right and proper, to make an adverse inference and that could not have been Parliament’s intention. The fact is that it is [the applicant’s] choice ... whether or not to accept [his] solicitor’s advice or not, and any solicitor worthy of his or her name should have included in the advice the various pros and cons of saying no comment and in particular should have included the possibility, even the probability, that his or her defence could be harmed if they failed to mention facts that they could so easily do and that if they did not mention them, why then an adverse inference could be drawn. But as I say, you have no independent evidence as to what the solicitor said or did not say.
But whether or not the solicitors said that, the officers certainly did. They [administered the caution] more than once ... .
So it is for each defendant ... to decide whether to answer or not. You decide what you make of the reasons given for not answering. If you thought that the reason given was a good one, then of course you could not hold it against them. If you thought that they were failing to answer certain awkward questions because, for example, they were keeping their powder dry, as it were, hoping against hope they would not be identified and the other reasons I mentioned a moment ago, or because they had not yet worked out what their defence was going to be, you could draw the inference that I have mentioned and, if you did, that might point towards guilt, but it is you who decide whether it is fair and proper to draw those adverse inferences.”
25. At the request of the applicant’s counsel the trial judge gave the following further direction to the jury:
“When dealing with the [applicant’s] first [interview] when [he] failed to answer questions. I did not specifically remind you, though you have heard it any number of times, that the defendants were cautioned that they do not have to say anything. That is of course the position, they do not have to say anything, but the inferences I suggested that you can draw nevertheless remain if you think they have not mentioned things that they could reasonably have been expected to mention and if you think it is fair to take the inferences of the sort I have mentioned, but there is that right to silence.”
26. On 23 May 1997 the applicant was convicted of robbery, false imprisonment and attempted murder and sentenced to a total of fifteen years’ imprisonment.
27. The applicant and his co-accused appealed against conviction to the Court of Appeal. The applicant relied, inter alia, on the ground that the trial judge misdirected the jury on the proper inferences to be drawn under section 34(2) of the Criminal Justice and Public Order Act 1994 from the exercise of his right of silence at the police interview.
28. On 7 May 1998 the Court of Appeal in a reserved judgment and following a hearing dismissed the appeal. Lord Justice Henry stated in his judgment, with reference to section 34 of the Criminal Justice and Public Order Act 1994, that it could not have been the intention of Parliament to provide that the only adverse inference that could be drawn from failure to disclose facts was recent fabrication. He quoted with approval the judgment of Lord Justice Rose in the case of R. v Roble (judgment of 21 January 1997, unreported).
“The purpose of the statutory provisions is to permit adverse inferences to be drawn where there has been late fabrication, to this extent, to encourage speedy disclosure of a genuine defence. If a defendant disclosed to his solicitor, prior to a police interview, charging or trial, information capable of giving rise to a defence, it will always be open to the defence to lead evidence of this to rebut any inference of subsequent fabrication. But if such evidence was not disclosed or was not disclosed at a late stage in the sequence of interview, charge and trial, adverse inferences can be drawn by the jury.”
29. Lord Justice Henry added:
“Thus the statutory objective designed to discourage surprise and “trial by ambush” is achieved. If the applicant was right in submitting that the only adverse inference that could be drawn was subsequent fabrication, the only purpose of the legislation (to encourage speedy disclosure of genuine defences) would be easily defeated. But in our judgment that is not the case...
The complaint made ... is that under the Act a ‘proper inference’ is one relevant to ‘in determining whether the accused is guilty’, and not simply adverse to a Defendant. We agree with the first proposition contained in that sentence, but not with the second. As section 34(2)(d) [of the 1994 Act] makes clear, the jury may make such inferences as they think proper in their task of considering their verdict. Clearly such inferences must be properly drawn, that is to say drawn from facts relevant to the verdict. The inferences that are complained of are not simply ‘adverse’... When it is proper to take them into account the Judge rightly reminded the jury that they could draw the adverse inference that [the applicant] was biding his time and seeing whether or not he would be identified, and it was for the jury to decide whether or not ‘to hold that failure against [him] in deciding whether [he was] guilty’.”
30. With respect to the applicant’s argument that the trial judge should not have intervened to request the applicant whether he wished to relate what he had said to his solicitor before the first police interview, Lord Justice Henry considered that this intervention was improper and an invitation to the applicant to waive legal professional privilege. However he concluded that, in the circumstances, the applicant had not been prejudiced as a result of the intervention.
31. On 2 June 1998 the Court of Appeal refused to certify that that the case raised a point of public importance and refused leave to appeal to the House of Lords.
32. Section 34 of the Criminal Justice and Public Order Act 1994 provides that:
“1. Where in any proceedings against a person for an offence, evidence is given that the accused –
(a) at any time before he was charged with the offence, on being questioned under caution by a constable trying to discover whether or by whom the offence had been committed, failed to mention any fact relied on in his defence in those proceedings; or
(b) ... being a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when so questioned, charged or informed, as the case may be, subsection (2) below applies.
2. Where this subsection applies ...
(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.”
33. Section 35 (2) and (3) provides:
“(2) Where this subsection applies, the court shall, at the conclusion of the evidence for the prosecution, satisfy itself (in the case of proceedings on indictment, in the presence of the jury) that the accused is aware that the stage has been reached at which evidence can be given for the defence and that he can, if he wishes, give evidence and that, if he chooses not to give evidence, or having been sworn, without good cause refuses to answer any question, it will be permissible for the court or jury to draw such inferences as appear proper from his failure to give evidence or his refusal, without good cause, to answer any question.
(3) Where this subsection applies, the court or jury, in determining whether the accused is guilty of the offence charged, may draw such inferences as appear proper from the failure of the accused to give evidence or his refusal, without good cause, to answer any question.”
34. Section 38 (3) adds that:
“A person shall not ... be convicted of an offence solely on an inference drawn from such a failure or refusal as is mentioned in section 34(2)...”
35. Guidance as to the direction which the judge should give the jury in respect of section 35 of the Criminal Justice and Public Order Act 1994 are provided by the Judicial Studies Board specimen directions and by the dicta of Lord Taylor CJ in R. v. Cowan ([1996] 1 Criminal Appeal Reports 1). The relevance of these dicta to directions under section 34 of the same Act was confirmed by the Court of Appeal in R. v. Condron ([1997] 1 Criminal Appeal Reports 185).
36. The Judicial Studies Board guideline direction at the time of the Court of Appeal’s consideration of the applicant’s appeal provided that:
“If he failed to mention [a fact] ... when he was questioned, decide whether in the circumstances which existed at the time, it was a fact which he could reasonably have been expected then to mention.
The law is that you may draw such inferences as appear proper from his failure to mention it at that time. You do not have to hold it against him. It is for you to decide whether it is proper to do so. Failure to mention such a fact at that time cannot, on its own, prove guilt, but depending on the circumstances, you may hold that failure against him when deciding whether he is guilty, that is, take into account as some additional support for the prosecution’s case. It is for you to decide whether it is fair to do so.”
37. The dicta of Lord Taylor CJ are as follows:
“We consider that the specimen direction is in general terms a sound guide. It may be necessary to adapt it to the particular circumstances of an individual case. But there are certain essentials that we would highlight:
1. The judge will have told the jury that the burden of proof remains upon the prosecution throughout and what the standard required is.
2. It is necessary for the judge to make clear to the jury that the defendant is entitled to remain silent. That is his right and his choice.
3. An inference from failure to give evidence cannot on its own prove guilt. That is expressly stated in section 38(3) of the Act.
4. Therefore, the jury must be satisfied that the prosecution have established a case to answer before drawing any inferences from silence. Of course, the judge must have thought so or the question whether the defendant was to give evidence would not have arisen. But the jury may not believe the witnesses whose evidence the judge considered sufficient to raise a prima facie case. It must therefore be made clear to them that they must find there to be a case to answer on the prosecution evidence before drawing an adverse inference from the defendant’s silence.
5. If despite any evidence relied upon to explain his silence or in the absence of any such evidence, the jury conclude the silence can only sensibly be attributed to the defendant’s having no answer or none that would stand up to cross-examination, they may draw an adverse inference.”
38. The specimen direction for section 34, up-dated in May 1999 in the light of the judgments of the Court of Appeal in cases such as R. v. Argent ([1997] Criminal Appeal Reports 27), provided:
“[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 when deciding 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.]”
39. The most recent version of the specimen direction was published by the Judicial Studies Board in July 2001 and takes account of case-law developments in the interpretation of section 34. The new direction provides:
“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 (...)”.
40. In R. v. Argent the Court of Appeal confirmed that legal advice is one circumstance to be taken into account by the jury. The Court of Appeal explained six conditions that had to be met before section 34 of the 1994 could allow inferences to be drawn. As regards the sixth condition, Lord Bingham CJ stated:
“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.”
41. In R. v. Roble ([1997] Criminal Law Reports 449) the Court of Appeal stressed the defendant’s right to reveal to the jury not only the fact that he remained silent on legal advice but also his right to adduce evidence before the jury (by way of oral evidence from the defendant himself and / or the solicitor who gave the advice) about the contents of the advice, that is the reasons why he was so advised.
42. The approach in R. v. Roble was confirmed in the later cases of R. v. Daniel ([1998] 2 Criminal Appeal Reports 373), R. v. Bowden ([1999] 1 Weekly Law Reports 823), and R. v. Fitzgerald (judgment of 6 March 1998, unreported).
43. In R. v. McGarry ([1999] 1 Criminal Appeal Report 377) the Court of Appeal held that where a trial judge decides, as a matter of law, that no jury could properly conclude that the requirements of section 34 of the 1994 have been satisfied and, therefore, it is not open to the jury to draw an adverse inference under section 34(2), he must specifically direct the jury not to draw any inference. In R. v. Doldur ([2000 Crim L. R. 178]) the Court of Appeal (per Lord Justice Auld) stated:
“Acceptance of the truth and accuracy of all or part of the prosecution evidence may or may not amount to sureness of guilt. Something more may be required, which may be provided by an adverse inference from silence if they think it proper to draw one. 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 section 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.”
44. In the Government’s submission in the case of Condron v. the United Kingdom (judgment of 2 May 2000, no. 35718/97, § 38, ECHR 2000-V), the case of R. v. Doldur is authority for the proposition that the jury must be satisfied that the prosecution have established a prima facie case of guilt before inferences may be drawn under section 34 of the 1994 Act.
45. In R. v. Birchall ([1999] Criminal Law Reports) Lord Bingham CJ stated, with reference to section 35 of the 1994 Act:
“Inescapable logic demands that a jury should not start to consider whether they should draw inferences from a defendant’s failure to give oral evidence at his trial until they have concluded that the Crown’s case against him is sufficiently compelling to call for an answer by him. ... There is a clear risk of injustice if the requirements of logic and fairness are not observed (...)”
46. In R. v. Bowden ([1999] 2 Criminal Appeal Reports 176) the Court of Appeal confirmed that if a defendant seeks to rely on reasons given in the course of an interview by a solicitor for advising his client to remain silent this would constitute a waiver of privilege even if the solicitor was not called to give evidence at the trial.
47. In R. v. Betts and Hall ([2001] 2 Criminal Appeal Reports 257)], the Court of Appeal stated that the effect of the above-mentioned Condron v. the United Kingdom judgment was that it was not the quality of the decision to remain silent that matters but the genuineness of the decision. For the Court of Appeal, this was not a shield for a guilty person to hide behind. The adequacy of the explanation advanced may well be relevant as to whether or not the advice was the true reason for not mentioning the facts.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1