AS TO THE ADMISSIBILITY OF
by Paul LOWE
against the United Kingdom
The European Court of Human Rights (Fourth Section), sitting on 8 September 2009 as a Chamber composed of:
Lech Garlicki, President,
David Thór Björgvinsson,
Mihai Poalelungi, judges,
and Lawrence Early, Section Registrar,
Having regard to the above application lodged on 13 March 2007,
Having deliberated, decides as follows:
The applicant, Mr Paul Lowe, is a British national who was born in 1967 and is currently detained in HMP Ranby.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Background facts
a. The events leading to the applicant’s arrest
Between 1998 and 27 February 2000, the major crime unit of the Merseyside Police carried out a surveillance operation (Operation Kingsway) into a suspected conspiracy to supply heroin and ecstasy. The operation involved surveillance from fixed and mobile observation points which were recorded over radio link and logged. Details of telephone calls were also gathered. Some observations were photographed.
The conspiracy involved repeated imports of large quantities of heroin. From July 1999 onwards, the heroin was imported into the United Kingdom via the Channel Tunnel by Mr F. and taken to the house of Mr E., at 107 Upper Parliament Street, Liverpool. The final delivery with an estimated street value of GBP 1.3 million was seized by police at 107 Parliament Street on 27 February 2000.
The prosecution case was that the applicant was a central figure in the conspiracy and acted as the controller and director of operations. The case against the applicant was almost entirely circumstantial and was based on the observations gathered in Operation Kingsway.
b. The police interviews
The applicant was first interviewed in the presence of his solicitor at 12.50 p.m. on 28 February 2000. He was cautioned and asked about his presence at 107 Upper Parliament Street on 27 February 2000. He was also advised that his own home had been searched and was questioned about items recovered during the search, including the sum of GBP 24,270 in cash. He was told that it was believed that he associated with named individuals who were also suspected of participating in the conspiracy. He made no comment, save to say that the cash belonged to a member of his family and that he did not wish to disclose the identity of that person “at this moment”. He indicated that his refusal to comment was the result of the “lack of disclosure”. The interview lasted for 12 minutes.
Later that same day, at 6.42 p.m., the applicant was questioned a second time. He was cautioned again. The details of the police observations from Operation Kingsway starting from July 1998 were put to him and he either made no comment or was silent in response to questions put.
At 7.27 p.m., the interview was continued under caution. Every observation relating to the 15 and 16 November 1999 was put to the applicant. The applicant remained silent on all matters.
At 8.16 p.m. the interview was continued under caution. The applicant was asked specifically about police observations from 30 and 31 January and 1 February 2000. He did not answer any questions. He was also asked about a passport in another name bearing his photograph. He did not make any comment.
2. Domestic proceedings
a. Proceedings before the Crown Court
The applicant was tried before the Crown Court. In July 2000, prior to the commencement of the trial, the applicant served on the prosecution and the court a detailed defence statement. In October 2000, at the trial itself, he gave detailed evidence in his defence regarding the large sums of money found at his home and his movements as observed during Operation Kingsway. In particular, the applicant claimed that he was involved in the buying and selling of stolen cars, and that this explained the movements recorded by the police.
In relation to his failure to make any comment during the police interviews, the applicant explained that he was shocked by the circumstances of his arrest; that he was acting on legal advice; and that he had not wished to incriminate others involved in the buying and selling of stolen cars.
The prosecution intimated that they intended to invite the trial judge in due course to make an adverse inferences direction to the jury regarding the applicant’s silence during the police interviews. The applicant sought to have the defence statement made in July 2000 put before the jury at his trial in order to show that he had set out his defence some time before the trial. The trial judge refused the application noting that the applicant had given detailed evidence in court and had therefore had the opportunity to present his case to the jury.
In his summing up to the jury, the judge noted that a number of the defendants, including the applicant, had declined to answer questions when interviewed by the police. The judge reminded the jury that the applicant was cautioned before the interviews, the terms of the caution being that he did not need to say anything but that it might harm his defence if he did not mention something when questioned on which he later sought to rely in court. The judge further noted that the defendants had subsequently, as part of their defence, relied on certain facts which they admitted they had not mentioned when questioned. In relation to the applicant, he gave one example of such a fact. He concluded with the following general direction:
“Members of the jury, since these defendants did not mention facts on which they now rely in support of their defences when they were interviewed, then as they were told, it may harm their defence ...
... [T]hey were told that it may harm their defences because you ... may draw such inferences as appear proper from their failure to mention the facts concerned when they were interviewed when you are deciding whether they are guilty as charged. However ... you may draw inferences of that kind only in certain circumstances that I want to make clear to you. First of all, before you could draw such an inference you would have to conclude that quite independently of any such inference the prosecution’s case against the defendant concerned was sufficiently compelling to call for an answer by him.
Secondly ... you would have to conclude that the fact that you are considering, the fact which he did not mention but has relied on now, was something that he could reasonably have been expected to mention at that time. Thirdly, you would have to conclude that the defendant had no answer [at] that time, and has since made up his account or has tailored his account to fit the prosecution’s case, or indeed done both.
If those are your conclusions ... but only if those are your conclusions, then you may, if you think it is right and fair to do so, take into account the silence of the defendant concerned when deciding whether his evidence about [the] facts concerned [is] true. But ... that silence must not be the only basis or indeed the main basis of any verdict of guilty that you may return.
... [T]he defence invites you not to draw any adverse inferences from their silence for a variety of reasons ... In Mr Lowe’s case ... he said, ‘I didn’t answer questions but amongst my reasons are that I was shocked by the circumstances of my arrest and I was acting on legal advice’ ...
If ... you think that the various matters raised ... by the defendants, or any of them, amounts to a reason why you should not draw any inference from the silence of the defendant concerned, then do not do so. But otherwise, subject to the direction that I have given you, you may do so.”
The judge advised the jury that the fact that a defendant had received legal advice not to answer questions did not mean that the jury were automatically prevented from drawing any adverse inferences from the defendant’s silence at interview. However, the judge emphasised the importance of legal advice and its relevance in considering whether the defendant’s silence at interview was justified, provided that the jury were satisfied that the defendant in question had received such legal advice. He directed as follows:
“The fact that a defendant receives legal advice not to answer questions does not mean that you are automatically prevented from drawing any adverse inferences from that defendant’s silence. But legal advice is obviously a matter of importance and is something [to] which you should have due regard in deciding whether you do in fact draw adverse inferences.
You will first, of course, have to decide whether you accept that the defendant ... did in fact receive or may have received legal advice not to answer questions or certain of them. Obviously, if you do not believe that ... then the question of legal advice does not arise at all. But if you do accept that the defendant ... received legal advice to remain silent, then you should consider whether in the circumstance that the defendant found himself in, including indeed the nature of the advice that he was given, it was reasonable for him to act on the advice that he was given. Or whether, having been told that his silence might harm his defence, he could reasonably have been expected to decide for himself to say then what he has now said in court.”
Following discussion of the position as regards legal advice, the judge reminded the jury of the position in the following terms:
“All of this is subject to the general direction that I have already given to you, and you will recall that as part of that direction I have told you that adverse inferences only become a possibility if the only sensible reason for the silence of the defendant concerned was that he had no answer at the time of the interview to the questions that were being asked, and has made up his account since or tailored it to fit the prosecution’s case or has done both.”
The judge then went through the applicant’s interviews in detail with the jury, pointing out that in relation to the sum of GBP 24,270 found at his home, the applicant had subsequently admitted telling a lie when he claimed that the money belonged to a member of his family.
The judge further highlighted that the applicant had not, during interview, mentioned his involvement in buying and selling stolen cars and reminded the jury that, subject to the general direction he had given, they could draw adverse inferences from his silence if they thought it right to do so.. He summarised the reasons given by the applicant for his failure to answer questions during interview and directed the jury as follows:
“If you think that those matters or any of them amount to a reason not to draw adverse inferences from his silence then do not do so. Otherwise, subject to the reference which I gave you earlier, you may do so if you think it right and fair to do so.”
On 4 December 2000, the applicant was convicted by the jury of conspiracy to supply Class A drugs.
On 5 February 2001, the applicant was sentenced to 24 years’ imprisonment.
b. First appeal to the Court of Appeal
The applicant appealed to the Court of Appeal arguing, inter alia, that the judge should not have given a direction to the jury on the drawing of adverse inference from silence in his case. His appeal was dismissed on 30 October 2003.
c. Second appeal to the Court of Appeal
On 30 June 2006, the Criminal Cases Review Commission referred the applicant’s case to the Court of Appeal on the ground that the trial judge’s summing up in relation to adverse inferences was deficient when compared with the Judicial Studies Board guidelines. In particular, the trial judge had failed to identify the precise facts in respect of which adverse inferences could be drawn; he had left the impression that an adverse inference could be drawn from the mere fact that the applicant had remained silent at interview (rather than from his failure to mention a fact on which he had subsequently sought to rely at trial); and the judge had failed to clarify that if the jury believed the applicant’s reason for his silence, they could not draw an adverse inference.
On 12 March 2007, the Court of Appeal dismissed the appeal. In relation to the general direction to the jury, the court considered (at paragraph 12) that:
“...save for the fact that the judge did not give a clear direction in accordance with the judgment of the Court of Human Rights in Condron, no fair criticism can be made of the directions he gave. He made it abundantly plain to the jury that they had to identify facts which were not mentioned in interview but which were relied upon subsequently by a defendant and in other respects he accurately directed them as to the circumstances in which any adverse inference could be drawn.”
It later noted (at paragraph 14) that:
“...The mere fact ... that [the trial judge] did not list each of the facts [upon which the applicant relied at trial] themselves does not in our view derogate in any way from the overall direction which he gave which adequately identified the parts of the appellant’s case which consisted of the fact upon which he relied which was not mentioned in interview ... [T]he way the judge did identify the facts could in no way be described as amounting to a misdirection.”
As regards the trial judge’s summing up in relation to the applicant’s silence during the police interview and his reasons for that silence, the court found:
“[Counsel for the defence] can rightly criticise that part of the summing-up, firstly for failing to state that the appellant was under no obligation to answer any questions: he had a right to silence. Secondly, in our view he can criticise properly the fact that the judge appears to have been indicating to the jury that silence in interview could in itself entitle the jury to draw adverse inferences beyond the issues which he had in fact specifically identified ...”
However, the court took into account the fact that no criticism had been made of the judge’s summing up at the time and that, when the trial and summing up took place, the “attitude of the courts to the proper way to sum up in relation to this aspect of trials was developing”. It considered that the correct approach was to assess whether, having regard to the jury’s verdict on the direction as given, the jury would have been bound to convict if a proper direction had been given. If the answer was in the affirmative, then the verdict was safe. Finally the court referred to the earlier Court of Appeal judgment which had found the evidence against the applicant to be overwhelming and concluded that the criticisms “have the air of ex post facto criticisms which should not result in this appeal being allowed”.
d. Confiscation proceedings
On 22 February 2008, the applicant appeared before the Magistrates’ Court in respect of his non-payment of a confiscation order imposed following his conviction. The sum outstanding was GBP 42,800, composed of GBP 19,500 in “hidden assets” and GBP 23,300 in interest on that sum.
A term of imprisonment of one year, one month and 23 days was imposed, in default of payment, which represented one day’s imprisonment for every GBP 110 outstanding.
B. Relevant domestic law and practice
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;
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
(d) the court or jury, in determining whether the accused is guilty of the offence charged,
may draw such inferences from the failure as appear proper.
(3) Subject to any directions by the court, evidence tending to establish the failure may be given before or after evidence tending to establish the fact which the accused is alleged to have failed to mention.
Section 38(3) provides 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) ...”
A number of domestic cases have considered the application of section 34 in practice. In R. v Cowan ( 1 Criminal Appeal Reports 1), Lord Taylor CJ set out five “essentials” when making a direction on adverse inferences:
“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 which 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.”
Subsequently, in R. v. Argent ( Criminal Appeal Reports 27), Lord Bingham CJ added a sixth condition that had to be met before section 34 of the 1994 Act would allow inferences to be drawn:
“The sixth condition is that the appellant failed to mention a fact which in the circumstances existing at the time the accused could 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.”
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 is provided by the Judicial Studies Board, which provides specimen directions. The present specimen direction on section 34 is based on the five ‘essentials’ listed in R. v Cowan, as applied in subsequent section 34 cases before the domestic courts, including R v. Argent, and by this Court in John Murray v. the United Kingdom, 8 February 1996, Reports of Judgments and Decisions 1996 I and Condron v. the United Kingdom, no. 35718/97, ECHR 2000 V).
The Judicial Studies Board specimen direction, which was last amended in December 2004, prior to the applicant’s second appeal, provides as follows (the sections in bold indicate substantive differences from the version of the guidelines in force at the time of the applicant’s trial):
“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 - see Note 10). 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. However, 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.”
The applicant complains under Article 6 § 1 that the trial judge’s direction to the jury failed to strike the right balance between the applicant’s right to silence and the circumstances in which adverse inferences could be drawn, and in particular: (i) the trial judge failed to make it clear to the jury that the applicant was entitled to remain silent; (ii) the trial judge failed to direct the jury that if they believed that the applicant’s silence at interview was due to his wish not to incriminate others and as a result of legal advice following the lack of disclosure, then they could not draw adverse inferences from that silence, and that they could only draw adverse inferences if they were sure that the real reason for the applicant’s silence was that he had no innocent explanation to offer; (iii) the trial judge failed to identify the precise facts which could be the subject of adverse inferences; and (iv) the trial judge created the impression that adverse inferences could be drawn from the mere fact that the applicant had remained silent at interview. The applicant argued that the resulting unfairness could not be remedied on appeal because there was no way of knowing what role any adverse inferences drawn from his silence played in the decision of the jury to convict.
The applicant also complains under Articles 3, 5, 7, 8 and 14 of the Convention that the additional term of imprisonment imposed following his non-payment of the sums outstanding in the confiscation order amounts to “triple jeopardy” in that he was first punished by the substantial fine imposed in respect of hidden assets; he was punished a second time by the imposition of a custodial sentence for non-payment of that fine; and he was punished a third time by his imprisonment for non-payment of interest which had accumulated in respect of the fine.
Alleged violation of Article 6 § 1
The applicant complains of a breach of Article 6 § 1 of the Convention, which provides, insofar as relevant as follows:
“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...
2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”
The Court observes that the applicant previously lodged an application with the Court (application no. 35624/03) in which he complained about the trial proceedings to which the present application pertains and the original judgment of the Court of Appeal in 2003. In particular, he complained that the trial judge had erred in directing the jury that it was open to them to draw adverse inferences from the fact that he gave no explanation to the police when he was interviewed in February 2000. His application was declared inadmissible as manifestly ill-founded by a Committee of three judges on 26 April 2005.
The present application follows the referral of the applicant’s case back to the Court of Appeal by the Criminal Cases Review Commission on June 2006 on grounds relating to the trial judge’s direction on the drawing of adverse inferences. The question therefore arises whether the present complaint regarding the direction on adverse inferences is inadmissible under Article 35 § 2 (b) and 4 of the Convention, which provides, insofar as relevant, as follows:
“2. The Court shall not deal with any application ... that
(b) is substantially the same as a matter that has already been examined by the Court or has already been submitted to another procedure of international investigation or settlement and contains no relevant new information.
4. The Court shall reject any application which it considers inadmissible under this Article. It may do so at any stage of the proceedings.”
The Court observes that the rule in Article 35 § 2 of the Convention that an application must not be substantially the same as a previous one is intended to ensure the finality of the Court’s decisions and to prevent applicants from seeking, through the lodging of a fresh application, to appeal previous judgments or decisions of the Court.
The Court recalls that an application will generally fall foul of this article where it has the same factual basis as a previous application. It is insufficient for an applicant to allege relevant new information where he has merely sought to support his past complaints with new legal argument (I.J.L. v. the United Kingdom (dec.), application no. 39029/97, 6 July 1999). In order for the Court to consider an application which relates to the same facts as a previous application, the applicant must genuinely advance a new complaint or submit new information which has not been previously considered by the Court, within the six-month deadline set out in Article 35 § 1 of the Convention.
In the present case, the Court notes that in his previous application, the applicant contended that no direction on the drawing of adverse inferences ought to have been given in the circumstances of his case, whereas his present complaint concerns the content of the direction given. However, in assessing in the context of his previous application whether the trial proceedings, and the trial judge’s adverse inferences direction, complied with Article 6 § 1, the Court was required to consider the trial proceedings as a whole, including the contents of the direction given. Accordingly, the Court considers that, in the circumstances, the present complaint has the same factual basis and raises the same complaint as a matter which has already been examined by the Court. The complaint is therefore inadmissible within the meaning of Articles 35 § 2 (b) and 4 of the Convention.
B. Alleged violation of Articles 3, 5, 7, 8 and 14 of the Convention
The applicant also complains under Articles 3, 5, 7, 8 and 14 of the Convention that an additional term of imprisonment (just under one year and two months) imposed by the Magistrates’ Court on 22 February 2008 following his non-payment of the sums outstanding in a confiscation order amounted to “triple jeopardy” in that he was first punished by the substantial fine imposed in respect of hidden assets; he was punished a second time by the imposition of a custodial sentence for non-payment of that fine; and he was punished a third time by his imprisonment for non payment of interest which had accumulated in respect of the fine.
This complaint was first raised in a separate application form lodged on 4 August 2008. The application form provided few details of the complaint and indicated that “detailed argument is to follow”. No such detailed argument has been received by the Court. In the absence of any evidence that the applicant sought to challenge the imposition of the additional term of imprisonment before the domestic courts by invoking relevant articles of the Convention, the Court concludes that the applicant has failed to exhaust domestic remedies as required by Article 35 § 1 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Lawrence Early Lech Garlicki