1. The appellant Michael Gerard Magee was convicted on 21 December 1990 by Murray LJ sitting without a jury at Belfast Crown Court of a number of serious terrorist crimes, including conspiracy to murder, conspiracy to cause an explosion, possession of explosive substances and belonging to a proscribed organisation. The evidence against him consisted solely of oral admissions and a written statement made by him during police questioning in Castlereagh Police Office (Castlereagh), in which he made a comprehensive confession of the crimes with which he was charged. At the trial he contested the admissibility of the statement, claiming that he had suffered substantial physical ill-treatment from two of the interviewing detectives. The trial judge after a long voir dire rejected all of his allegations, finding that he was satisfied beyond reasonable doubt that the appellant had not been ill-treated and that the allegations were fabricated by him. He was sentenced to concurrent terms of imprisonment, which amounted to an effective sentence of twenty years.

2. The appellant appealed to the Court of Appeal, which examined in detail the evidence and his allegations. In a written judgment delivered on 16 June 1993 the Court of Appeal dismissed the appeal, being satisfied that the appellant had not been ill-treated and that his conviction was neither unsafe nor unsatisfactory.

3. The appellant corresponded with the Northern Ireland Office about his conviction, and when the Criminal Cases Review Commission was set up the papers were referred to it for consideration. Meanwhile he instituted proceedings before the European Court of Human Rights (ECHR), claiming that his treatment in Castlereagh had given rise to breaches of the European Convention on Human Rights (the Convention). The ECHR held in a written decision given on 6 June 2000, that in the circumstances of his detention in Castlereagh there had been a violation of Article 6(1) of the Convention, in conjunction with Article 6(3)(c) as regards the denial of access to a solicitor. The Criminal Cases Review Commission then on 25 July 2000 referred the case to this court under section 10 of the Criminal Appeal Act 1995. Pursuant to section 10(2) of that Act the court is to treat the reference as an appeal.

4. On the morning of 15 December 1988 police discovered a large bomb hidden in a culvert under a road near Antrim. It was designed to be triggered by a signal from a radio transmitter. A party of soldiers had been due to pass over the culvert in a bus shortly after the time at which the bomb was found. A number of persons was arrested in connection with the incident, and a total of eleven were charged with terrorist offences, of whom seven pleaded guilty. The Crown case was that the bomb was assembled at a farm near Lough Neagh at 36 Blackrock Road, Randalstown, and transported from there to the culvert in a green Datsun car. There was considerable forensic evidence concerning traces of Semtex found in that car and another car, a Vauxhall Astra, found in the yard of 36 Blackrock Road, and in the farmhouse and on items found therein. There was also evidence linking several defendants with the farmhouse.

5. The appellant was arrested in the early morning of 16 December 1988 and taken to Castlereagh. Between then and 18 December he was interviewed on ten occasions by two pairs of detectives. In the sixth interview, on the morning of 17 December, he made a number of verbal admissions in reply to questions, and in the seventh interview, which commenced at 2 pm on that day, he made a written statement of admission. The case against him was founded on the admissions made in these two interviews.

6. On arrival at Castlereagh the appellant was asked if he wanted to have a solicitor’s advice and he said that he did, and gave the officer who carried out the admission procedure the name of his solicitor. An instruction was, however, given by a senior officer, pursuant to the terms of section 15 of the Northern Ireland (Emergency Provisions) Act 1987, authorising forty eight hours’ delay in the appellant’s access to legal advice. It was not challenged that the officer was entitled to give this authorisation, which had to be grounded on one or more of the reasons set out in section 15(8).

7. The appellant then had a medical examination, at which the doctor found him in good health. There followed ten interviews, which were held at the following times by the following officers:

8. Interview 1 10.55 am – 1.00 pm D/Sgt Morton and D/Con Robinson

9. Interview 2 2.00 pm – 4.00 pm D/Con Molloy and D/Con McCullough

10. Interview 3 4.00 pm – 6.00 pm D/Sgt Morton and D/Con Robinson

11. Interview 4 7.35 pm – 9.30 pm D/Con Molloy and D/Con McCullough

12. Interview 5 9.30 pm – 12.00 midnight D/Sgt Morton and D/Con Robinson

13. Interview 6 9.30 am – 1.00 pm D/Con Molloy and D/Con McCullough

14. Interview 7 2.00 pm – 4.20 pm D/Sgt Morton and D/Con Robinson

15. Interview 8 7.30 pm - 12.00 midnight D/Con Molloy and D/Con McCullough

16. Interview 9 10.00 am – 12.45 pm D/Con Molloy and D/Con McCullough

17. Interview 10 2.00 pm – 5.00 pm D/Sgt Morton and D/Con Robinson

18. The appellant claimed at his trial that he had been ill-treated by two of the interviewing officers, Detective Constable Molloy and Detective Constable McCulough. He gave detailed evidence of a catalogue of complaints about physical ill-treatment and verbal abuse which, if accepted, by the trial judge, would certainly have caused him to refuse to admit the confession. The judge rejected his allegations. He examined in detail all the evidence, from the appellant, the interviewing officers, the gaolers and the medical officers who had examined him on several occasions. At the conclusion of his consideration he held that he was satisfied beyond reasonable doubt that the appellant’s complaints were a fabrication and that he had not been ill treated in any respect. When the case went on appeal to the Court of Appeal the court again examined all of the material evidence in detail and came to the same conclusion as the trial judge. The evidence relating to the course of the interviews has now to be read in the light of these findings.

19. At the commencement of the first interview and regularly thereafter the appellant was cautioned in accordance with the terms of Article 3 of the Criminal Evidence (Northern Ireland) Order 1988. Paragraphs (1) and (2) of Article 3 provide:

20. During the first four interviews the appellant remained silent and did not answer any question put to him. The detectives stated in evidence that he appeared extremely nervous, breathing heavily and sweating profusely. Towards the end of the fifth interview he did break his silence. According to the interviewing officers the questions and answers took the following course:

21. The appellant denied that this account was accurate, claiming that his first remark was to ask “When will I be seeing my solicitor?” and denying that he asked for time to think. He said in evidence that he wanted to see his solicitor for two reasons: first, because he claimed that he was being ill-treated, and secondly, to obtain advice about the caution which had been administered to him.

22. The following morning he was visited by the doctor, to whom he made a complaint of ill-treatment by the interviewing officers during the second and third interviews. The doctor made some findings, which he described as “subjective”, of tenderness on movement and palpation. He said in evidence that there were no objective findings.

23. The appellant claimed that in the sixth interview, which commenced at 9.30 am on 17 December, he was assaulted to an even greater extent than on the previous day and that he was so worn down and intimidated by the ill-treatment and threats from the detectives that to obtain respite he responded to their questions with answers which he thought would satisfy them. He claimed that the answers which he gave were untrue and consisted of information garnered from the detectives’ own previous questions. The police evidence was to the effect that he was responding freely and voluntarily to their questioning, giving answers in which he admitted his involvement in the preparation and transportation of the bomb. The appellant stated in evidence that when he was returned to his cell at lunch time after the conclusion of that interview he was very depressed, because, as he said:

24. In the seventh interview, which commenced at 2 pm on 17 December, the appellant made a written statement in which he set out in detail his part in the affair. He claimed at trial that this statement was “structured” by the police, that is, that they put it together and attributed the contents to him. The trial judge rejected this allegation, as did the Court of Appeal. The statement read as follows:

25. The appellant was interviewed again in the evening of 17 December and twice more on 18 December. He was seen by medical examiners in the morning of 18 December and again when he left Castlereagh that evening. He did not make any further allegations of ill-treatment and neither examiner found any evidence of injuries. His solicitor saw him in private consultation at 1 pm on 18 December, the day after he made the verbal admissions and the written statement.

26. The interviews were monitored by closed circuit television, but it was proved that for a period on the morning of 17 December the duty inspector whose duty it was to watch the monitoring screens was out of the monitoring office on other duties. The judge held that this absence did not occur during the part of the sixth interview in which the appellant claimed to have been ill-treated. He was moreover of the opinion that it would have been impossible for the prolonged ill-treatment described by the appellant to have taken place without being observed at some time by the inspectors on duty in the monitoring room. He accepted their evidence that they had seen nothing of the kind at any stage.

27. The appellant’s challenge to the admission of these verbal and written admissions was based primarily on section 8(2) of the Northern Ireland (Emergency Provisions) Act 1978, as substituted by section 5 of the 1987 Act, which read:

28. The judge held that he was satisfied beyond reasonable doubt that the statements had not been obtained by so subjecting the appellant. The appellant also relied on section 8(3), which, as amended, provided:

29. The ground on which the appellant’s counsel asked the trial judge to exercise his discretion under section 8(3) was because ESDA tests showed that some of the interview notes had been altered or rewritten and because they had not all been authenticated in the prescribed manner by a senior officer. The judge held that the ESDA evidence threw no doubt on the authenticity of the notes and that the failure to authenticate them properly was no more than incompetence or slapdash procedure, and that it did not reflect on the authenticity of the notes. He therefore declined to exercise his discretion under section 8(3) to exclude any of the appellant’s statements. The Court of Appeal held that he was entitled to reach the conclusions which he formed and to decline to exercise his discretion to exclude the statements. It accordingly held that the appellant’s conviction was neither unsafe nor unsatisfactory and dismissed his appeal.

30. When the appellant’s application came before the ECHR the issue was whether there had been a breach of Article 6 or Article 14 of the Convention. The Court ruled that there had not been a breach of Article 14, and we need not consider it. Article 6(1) provides, so far as material:

31. Article 6(3)(c) goes on to provide that everyone charged with a criminal offence shall have the right to defend himself in person or through legal assistance of his own choosing. As the Court pointed out in paragraph 41 of its decision, it has been held that these provisions may apply to pre-trial stages as well as to the actual hearing.

32. The Court decided to deal with it on the papers before it and not to hold a hearing on the merits. It received in evidence before it a report from the European Committee for the Prevention of Torture and Inhuman and Degrading Treatment and Punishment (CPT) dated July 1993 concerning conditions which it then found to exist in Castlereagh. The CPT was strongly critical of those conditions. The matters which gave it especial concern were the lack of natural light in the detainees’ cells, the lack of natural light in one block of interview rooms (not that in which the appellant was interviewed) and the lack of exercise facilities. On the basis of these facts the CPT expressed the following conclusion in paragraph 109 of its report:

33. The Court, after recording the submissions of the parties, expressed its conclusions in paragraphs 38 to 46 of its decision:

34. Following the decision of the ECHR, the Criminal Cases Review Commission gave further consideration to the appellant’s case. It concluded that there was a real possibility that this court would find that, taking into account the nature and extent of the breach of Article 6, the evidence of confession should have been excluded as a matter of discretion. It accordingly referred the conviction to us under section 10 of the Criminal Appeal Act 1995.

35. Under section 2(1) of the Criminal Appeal (Northern Ireland) Act 1980, as amended by the Criminal Appeal Act 1995, the Court of Appeal is to allow an appeal against conviction if they think it was unsafe, and dismiss the appeal in any other case. In this reference we have to consider the effect of the argument now put before us, which was not advanced to the trial judge, that he should have exercised his discretion to refuse to admit the statements made by the appellant on the ground that it was unfair in all the circumstances of the case, and taking into account the atmosphere of Castlereagh, to decline to allow him access to legal advice for the period of forty eight hours after his arrest. Such an argument could not have succeeded if made at the time of the appellant’s trial in 1990 or his appeal to this court in 1993. Parliament had by enacting section 15 of the Northern Ireland (Emergency Provisions) Act 1978 and its successor section 45 of the 1991 Act specifically authorised the deferment of access to legal advice in certain circumstances for a maximum period of time. The courts therefore could not interpret section 8(3) of the 1978 Act or its successor as giving authority to exclude a statement made by the person detained, which would have defeated the will of Parliament: see Re Russell’s Application [1996] NI 310 at 323 and 336, per Hutton LCJ. Since the trial judge was not asked to exercise his discretion to exclude the statements on the ground of denial of access to legal advice, this court as an appellate tribunal has now to exercise the discretion conferred on him: see, eg, R v Docherty [1999] 1 Cr App R 274 at 281. If the law applying in 1990 had remained unchanged to the present time, we should be bound to reach the same conclusion that we could not exclude the statements on that ground.

36. The legal landscape has, however, been fundamentally changed by the enactment of the Human Rights Act 1998, which is now in force. By section 7(1)(b) the appellant is entitled to rely on his Convention right set out in Article 6 in any legal proceedings (which by section 7(6) include an appeal against the decision of a court). By section 22(4) section 7(1)(b) applies to proceedings brought by or at the instigation of public authority whenever the action in question took place. Section 2(1)(b) requires the court determining a question which has arisen in connection with a Convention right to take into account any judgment of the ECHR.

37. In determining this appeal now against the appellant’s conviction we have to judge its safety by applying the standards of today, as we held in R v Gordon (2000, unreported), accepting the correctness of the decisions in R v Bentley [1999] Crim LR 330 and R v Johnson (2000) The Times , 21 November. Mr Weatherup QC submitted on behalf of the DPP that in accordance with the decision in R v King [2000] Crim LR 835 we should disregard subsequent statutory provisions in determining the safety of the conviction, including section 22(4) of the Human Rights Act 1998, which establishes the retrospective effect of the Act. We are unable to accept that submission. We consider that it was the clear intention of Parliament that the standards incorporated into our law by the 1998 Act should be applied from the time when it came into force, and that one cannot in this manner except appeals against pre-Act convictions from the process of application of the Convention.

38. Mr Treacy QC for the appellant submitted that the statement in paragraph 7-51c of the 2001 edition of Archbold is correct, that a conviction which does not match up to the requirements of Article 6 of the Convention cannot ever be anything but unsafe. In support of his submission he referred to the decision of the Privy Council in Darmalingum v The State (1999) The Times, July 18. In that case there had been an extremely long delay between the appellant’s arrest and his trial and again between trial and the disposition of his appeal to the Supreme Court of Mauritius. The Privy Council quashed the conviction on the ground that the delay contravened the provisions of section 10(1) of the Constitution of Mauritius, which is in similar terms to those of Article 6(1) of the Convention. At page 7 of their judgment the Board stated that the normal remedy for a failure of the guarantee contained in section 10(1) would be to quash the conviction. Mr Treacy, following the view expressed by the editors of Archbold, submitted that this supported the proposition that the same result should follow when a breach of Article 6 of the Convention has been established. We regard this decision as an insufficient analogy. The Privy Council was there considering a constitutional provision of Mauritius, part of the corpus of its law, which applied directly to criminal trials in the state. The relationship between the safety of a conviction in our legal system and a determination by the ECHR of a breach of the Convention is in our view governed by rather different principles.

39. The issue was discussed by the Court of Appeal in England in R v Davis (2000) The Times, July 25. In that case the appellants were convicted in 1990 and their appeals were dismissed. Certain documents and facts relating to informers had not been disclosed, in accordance with the practice accepted at the time. The appellant brought an application before the ECHR, which declared that there had been a violation of Article 6(1) of the Convention. In considering the relationship between the safety of the conviction and the finding of unfairness by the ECHR, the Court of Appeal said:

40. The court held that the failure to disclose the material was a material irregularity, which made the convictions unsafe. We would observe, however, that the court would on its reasoning have reached this conclusion independently of the finding by the ECHR once it investigated the issue of the failure to disclose the material.

41. The statement of the law in R v Davis which we have quoted was approved in subsequent decisions of the Court of Appeal, but with a degree of qualification which takes the law somewhat nearer the statement contained in Archbold, loc cit. In R v Francom (2000) The Times, October 24 Lord Woolf CJ accepted the correctness of the proposition set out in R v Davis , but went on to say:

42. He then said in R v Togher (2000, unreported) at paragraph 33 of his judgment:

43. We respectfully agree with the statements of the law in these cases and adopt them as the proper approach to the relationship between a finding of unfairness under Article 6 of the Convention and the safety of a conviction.

44. Mr Treacy submitted that the finding of the ECHR under Article 6 should lead automatically to a conclusion that the conviction in the present case is unsafe. Mr Weatherup resisted this, on the ground that the court is only required, under section 2(1)(a) of the Human Rights Act 1998, to “take account of” the decision of the ECHR. He was critical of the reasoning of the Court and the conclusions which it reached. He pointed out that it did not receive any direct evidence of the conditions in Castlereagh when the appellant was detained there, but founded its decision on the report of the CPT made in July 1993, four and a half years later. He relied strongly upon the argument that the appellant had based his case for exclusion of the statements solely on the ground that he had been coerced into making them by reason of ill-treatment, allegations which were rejected by the trial judge and the Court of Appeal as a false and lying case, and that he had not proved that the conditions in Castlereagh or his lack of legal advice had any causal connection with his making the statements of admission.

45. We acknowledge the force of these arguments, though it is probably fair to say that the appellant’s advisers would have been well aware that to attempt at trial to found a case on lack of legal advice or conditions in Castlereagh would have had no chance of success and so did not advance such a ground for exclusion of the statements. There were, however, facts in this case which gave more support to the conclusion of the ECHR than might exist in some other cases. The appellant had asked on arrival and again in the fifth interview about seeing a solicitor, and gave specific evidence that he was unsure about the effect of the Article 3 caution and whether he should make any statement to the interviewers. His admissions were all made before he had access to any legal advice. Moreover, he showed symptoms of being materially more distressed and vulnerable than many other suspects in the same position.

46. The ECHR has made a direct finding on the facts of this case that the denial of access to a solicitor, against the background of the conditions in Castlereagh, constituted a violation of Article 6(1) in conjunction with Article 6(3)(c) of the Convention. We consider that we would not be justified in concluding that the conviction was safe in the light of this finding. We note that the Court said in paragraph 38 of its decision that it was confining itself to the particular facts of the instant case.

47. If other cases come before us concerning admissions made in Castlereagh by persons detained whose access to legal advice was deferred, we shall take the ECHR’s decision in the present case into account. It will then be a matter for consideration in each such case how far the Court’s findings in this case are material in reaching a conclusion on the safety of the conviction.

48. For the reasons which we have given we shall allow the appeal and quash the appellant’s conviction.