European Court of Human Rights

Resolution CM/ResDH(2011)285¹

Execution of the judgment of the European Court of Human Rights

Brennan against the United Kingdom

(Application No. 39846/98, judgment of 16 October 2001, final on 16 January 2002)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgment transmitted by the Court to the Committee once it had become final;

Recalling that the violation of the Convention found by the Court in this case concerns the presence of a police officer during the applicant’s first consultation with his lawyer after his arrest (violation of Article 6, paragraph 3 (c) in conjunction with Article 6, paragraph 1) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the measures taken to comply with its obligation under Article 46, paragraph 1, of the Convention to abide by the judgment;

Having examined the information provided by the government in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that the respondent state paid the applicant the just satisfaction provided in the judgment (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its judgments, the adoption by the respondent state, where appropriate:

- of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum; and

- of general measures preventing similar violations;

DECLARES, having examined the measures taken by the respondent state (see Appendix) that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to close the examination of this case.

Appendix to Resolution CM/ResDH(2011)285

Information about the measures to comply with the judgment in the case of

Brennan against the United Kingdom

Introductory case summary

The case concerns a breach of the applicant’s defence rights in 1990 due to the presence of a police officer during his first consultation with his lawyer (solicitor), without any compelling reason for the imposition of this restriction. The applicant was thus deprived of effective legal advice (violation of Article 6, paragraph 3(c) in conjunction with Article 6, paragraph 1).

The European Court indicated that the consultation, potentially of great importance to the applicant’s defence at trial, was the first occasion for him to seek advice from his lawyer as to whether he should answer some particular questions by the police or risk inferences being drawn against him later in accordance with the provisions of the Criminal Evidence (Northern Ireland) Order 1988. The Court found "no reason to doubt the good faith of the police in imposing and implementing this measure...it nonetheless [found] no compelling reason arising in this case for the imposition of the restriction" (§59 of the judgment).

I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

b) Individual measures

The European Court considered it impossible to speculate as to whether the outcome of the applicant’s trial would have been any different if he had obtained a private consultation with his solicitor and accordingly found that the finding of a violation constituted in itself just satisfaction for any non-pecuniary damage arising from the violation established.

The United Kingdom indicated that the applicant might request the re-opening of the domestic proceedings under sections 9-12 of the Criminal Appeal Act 1995. Consequently, no other individual measure was considered necessary by the Committee of Ministers.

II. General measures

On 16/07/2003, the Home Office sent guidance to the competent police authorities, drawing their attention to the Court’s conclusions (especially to §§ 58-62 of the Court’s judgment). The Home Office stressed that the presence of a police officer during a defendant’s consultations with his solicitor should be imposed only in limited circumstances, namely when the police have reasonable grounds to believe that one of the consequences set out in §8(4) of Schedule 8 to the Terrorism Act 2000 would otherwise occur (in particular, interference with evidence, physical injury to any person, alerting a person suspected of committing a serious offence, alerting a person, thereby hindering the prevention of an act of terrorism).

The judgment of the European Court was published in the Times Law Report of 22 October 2001 and in the European Human Rights Reports at (2001) 34 EHRR 18.

III. Conclusions of the respondent state

The government considers that the measures adopted have remedied the consequences for the applicant of the violation of the Convention found by the European Court in this case, that these measures will prevent similar violations and that the United Kingdom has thus complied with its obligations under Article 46, paragraph 1, of the Convention.