High Court of Justice in Northern Ireland Queen's Bench Division Decisions

Procedural Classification

13 April 1988             Incident giving rise to applicant’s conviction

13 April 1988             Applicant stopped by RUC - applicant arrested after stating that he had been picking mushrooms at a friend’s property and that he was on his way to his girlfriend’s home - applicant arrested pursuant to section 12 of the Prevention of Terrorism Act 1984

14 - 10 April 1988     Applicant interviewed by RUC

27 September 1988   Preliminary Investigation held at Armagh Magistrates’ Court - applicant discharged in absence of prima facie case

14 December 1988    Article 3 of the Criminal Evidence (NI) Order 1988 came into force

16 July 1990               Applicant arrested for a second time - arrested pursuant to section 14 Prevention of Terrorism (Temporary Provisions) Act 1989 - applicant requested access to a solicitor but was questioned without one - no comment interview given

27 November 1991   Applicant’s trial commenced

23 December 1991    Applicant’s convicted following trial before Hutton LCJ

17 August 1993         Appeal against conviction dismissed - Murray LJ delivering judgment on behalf of the Court

30 September 1993   Application to ECtHR lodged

11 December 1997    Report of European Commission of Human Rights issued

10 July 1998               Interim Resolution of Committee of Ministers

19 January 2001         First application to CCRC lodged on behalf of the applicant

25 January 2002        Submissions lodged with the CCRC on behalf of the applicant

28 March 2002           Preliminary decision concerning first application issued by CCRC

29 April 2002             Further submission lodged on applicant’s behalf addressing CCRC’s preliminary decision concerning first application

6 August 2002          CCRC’s Statement of Reasons concerning first application issued

22 November 2002   Leave granted by Kerr J in judicial review proceedings concerning CCRC’s decision of 6 August 2002 - Notice of Motion indicates that application for judicial review to be made to a Divisional Court

Trial and Conviction of the Applicant

                                                        "FIRST COUNT

                                            STATEMENT OF OFFENCE

                        Attempted Murder, contrary to Article 3 of the Criminal Attempts and Conspiracy (Northern Ireland) Order 1983 and Common Law.

PARTICULARS OF OFFENCE

                        Dermot Quinn, on the 13th day of April 1988, in the County Court Division of Armagh, attempted to murder Ian Monteith.

                                                      SECOND COUNT

                                            STATEMENT OF OFFENCE

                        Attempted Murder, contrary to Article 3 of the Criminal Attempts and Conspiracy (Northern Ireland) Order 1983 and Common Law.

                                           PARTICULARS OF OFFENCE

                        Dermot Quinn, on the 13th day of April 1988, in the County Court Division of Armagh, attempted to murder Stephen Swan.

                                                        THIRD COUNT

                                            STATEMENT OF OFFENCE

Possession of firearms and ammunition with intent, contrary to Article 17 of the Firearms (Northern Ireland) Order 1981.

                                           PARTICULARS OF OFFENCE

                        Dermot Quinn, on the 13th day of April 1988, in the County Court Division of Armagh, had in his possession firearms and ammunition with intent by means thereof to endanger life or cause serious injury to property or to enable some other person by means thereof to endanger life or cause serious injury to property."

On each of the first two counts the applicant was sentenced to imprisonment for 25 years and on the third Count for 20 years, all sentences to run concurrently:  in effect, therefore, he was sentenced to 25 years imprisonment.

(i)                 The very strong probability that the 39 acrylic fibres found in the applicant’s hair had originated from the balaclava helmet recovered from the vehicle.

(ii)              The firearm residue found in one of the pockets of the jacket which the applicant was wearing when arrested in the aftermath of the offences.

(iii)            The geographical location and timing factors, namely that the applicant was apprehended in a vehicle at a distance of some five - six miles from the location of the offences and about one hour after their commission.

(iv)            The trial judge’s assessment that both the applicant and his “alibi corroboration” witness had lied in their evidence.

(v)               The “very strong” inferences adverse to the applicant which the judge determined to make arising from his failure to advance his alibi defence following arrest when questioned by the police, something which the judge considered “… would have been the easiest thing in the world for him …” to have done.

In respect of the last mentioned matter the trial judge drew upon the following passage from the Criminal Law Revision Committee 11^th Report, paragraph 35:

“In a straightforward case of interrogation by the police where the accused has no reason for withholding his story (apart from the fact that he has not had time to invent it or that he hopes to spring it on the court at his trial) an adverse inference will clearly be proper and, we think, should be readily drawn.”

Finally, the judge declined to make any inference adverse to the applicant arising from his failure to account timeously for the fibres in his hair, the firearm residue on his jacket and the glass found in the balaclava helmet, the latter supposedly originating from the smashed front door window pane of the victim’s home.

The Appeal

“There was no dispute about the final series of relevant events which took place almost exactly one hour after the events at the O'Hagan home.  At 9.27 pm approximately Constable Carlton stopped a blue Peugeot car (registration number GIB 4276) at Goak Hill crossroads, Benburb, about 5/6 miles distant from the Ballygassoon Road.  The car was being driven by Mrs Mary McCartan and the sole passenger was Dermot Quinn the appellant.  The constable asked Mrs McCartan where she was going and she replied that she was taking the appellant to his girlfriend's house in Dungannon.  Constable Carlton then asked the appellant where he was coming from and he replied that he had been working at mushrooms for the McCartans and he was going to his girlfriend's.  The constable then carried out a body search of the appellant by frisking him but he did not put his hands into any of the appellant's pockets.  He then arrested the appellant under s.12 of the Prevention of Terrorism Act and put paper bags on his hands.  Mrs McCartan was also arrested and both were taken to the police office in Gough Barracks, Armagh.”

Murray LJ continued:

“The main evidence against the appellant was given by two forensic scientists viz. "fibre" evidence by Lawrence Brian Marshall, a senior scientific officer at the Northern Ireland Forensic Science Laboratory with ten years experience in this kind of scientific work, and firearms residues evidence by James Smyth Wallace, a principal scientific officer on the staff at that laboratory with twenty years experience of the latter kind of scientific work”

            “(i)       The forensic evidence.

(ii)        The admission in evidence by the trial judge of the O'Hagan statements under the 1988 Order.

                        (iii)                     The drawing of the inference by the learned trial judge adverse to the appellant under Art.3 of the Evidence Order. 

                        (iv)       Other matters.”

“…  the learned trial judge did not advert in his judgment to the build-up of fibres which could follow from repeated pulling over the head of a pullover, but we regard these matters as peripheral.  The basic and undeniable fact is that there was found in the appellant's hair fibres which were identical with the constituent fibres in the helmet.  Mr Harvey also established that the selection of the 6 fibres for the full range of testing could not be said to have been a truly "random" selection, because they were selected for their length, but we do not regard this as a point of any real weight since the method of selection was chosen for no reason except the technical convenience of the laboratory: we can see no basis for saying that it was in any way weighted against, or unfair to, the appellant….

In our view the learned trial judge was fully entitled to take the attitude that there was a “very strong probability" that the 39 black acrylic fibres came from the helmet.”

“We take the view that the learned trial judge was entirely right in admitting the O'Hagan statements since it was abundantly established by proper evidence that the O'Hagans refused to give evidence in accordance with their statements because of the fear that had been induced in them - a fear as to the consequences to themselves if in fact they entered the box and gave evidence.  We are satisfied that the learned judge fully considered the relevant statutory provisions and quite properly decided that the case was one in which the statements should in the interests of justice be admitted in evidence.”

“In our view, however, it is important to look at the history of this case and particularly at the interviews during the first arrest period.  During those earlier interviews after his first arrest the appellant was made completely aware of the forensic case which the police had against him - about the fibres and also the firearms residues - and as the learned judge said, it would have been the easiest thing in the world for him, after the second arrest and after he had been warned clearly by the detectives of the consequences of his not saying anything on which he wished to rely later in his defence - it was the easiest thing in the world for him to say "I can explain those fibres because I was wearing an acrylic hat a few hours before I was arrested".  As regards the firearms residues where was the difficulty in his saying to the interviewers that he was often out with uncles who used sporting guns and often picked up spent cartridges?  He had had nearly two years to think out his position.  Moreover the matter does not stop there:  from the statement of D/C McAteer (page 111) it emerges after the appellant had been given a forceful explanation at the McAteer interview of the fibre evidence against him he was to see his solicitor and the detectives actually advised him to discuss the fibre evidence with the solicitor because of its serious implications for him.  Some indication of his attitude to the evidence against himself  can be seen however from his action in laughing and whistling at the interview when this evidence was explained to him  …   he made no request whatever for a postponement of the interview when it started at 10 am.  Moreover  … there had been no deferral of the appellant's right to see a solicitor and if the appellant had asked for a postponement he would immediately have stopped the interview.  In the result we take the view that there is no question of unfairness in what the learned judge did and that he was entirely right in drawing the inference he did.”

“Mr Harvey submitted that the learned trial judge erred in holding at the end of the Crown case that there was a prima facie case against the appellant.  We reject this submission: we take the view that the forensic evidence was sufficiently strong to constitute a prima facie case.  The point referred to by the trial judge about the appellant being in the vicinity at the time of the crime was not of course intended by him to be treated as a positive piece of evidence against the appellant of his having committed the offences charged;  but it was hard evidence which negatived any possible defence by the appellant that, notwithstanding the forensic evidence, he was so far away from the area in question at the relevant time that he could not possibly have committed the offences, and therefore clearly relevant.  Phipson on Evidence (14th Ed) at p.15-02 states:

"The fact that the accused was in the neighbourhood about the time of the act or had the opportunity of committing the act ... is relevant".”

The omnibus conclusion of the Court of Appeal was expressed in these terms:

“In the result we find that the convictions are neither unsafe nor unsatisfactory and the appeals against the convictions are dismissed.”

Report of the European Commission of Human Rights

“1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

3. Everyone charged with a criminal offence has the following minimum rights:

(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;

(b) to have adequate time and facilities for the preparation of his defence;

(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

(e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.”

“The Commission notes that the forensic evidence combined with the statements of the O’Hagans constituted important circumstantial evidence against the applicant …. (and at [63]) …

The Commission considers that the forensic evidence relating to gun powder traces and linking him to the car used in the offence could be regarded, on a common sense basis, as a situation attracting considerable suspicion and reasonably allowing inferences to be drawn in light of the nature and extent of any explanations provided by the applicant. The inference drawn from the applicant’s silent was thus only one of the elements upon which the judge found the charge proven beyond reasonable doubt.  The Commission considers that by taking this element into account the judge did not go beyond the limits of fairness in his appreciation of the evidence in the case.”

This analysis gave rise to the discrete conclusion that the trial judge’s making of inferences adverse to the applicant arising out of his silence did not infringe Article 6 ECHR.  Finally the European Commission found no merit in the applicant’s complaint relating to the admission of the written witness statements.

The Commission’s First Determination (2002)

(i)                 Access to a solicitor in custody is not an absolute right.  It has been held that the safety of a conviction was not compromised in circumstances where the wrongful withholding of access to a solicitor and an ensuing confession did not entail any element of oppression or any identifiable nexus between the withholding of access and the confession made by the accused: R v Alladice [1988] 87 Cr App R 380.

(ii)              The guiding principle is that the safety of a conviction in a case where the accused did not have access to a legal adviser will invariably be a fact sensitive question.

“8.18   In Mr Quinn’s case, the key factors appear to the Commission to be as follows:

·     it is not in dispute that the police proceeded to interview Mr Quinn before his solicitor had arrived;

·     the Commission notes however, that Mr Quinn appears not to have objected or asked for a postponement of his interviews until his solicitor had arrived;

·     Hutton LCJ interpreted the legislation in such a way that he felt himself free to draw adverse inferences from Mr Quinn’s failure to answer, notwithstanding the absence of a solicitor, and he did not accept counsel’s submission that section 15 of the Northern Ireland (Emergency Provisions) Act 1987 precluded him from doing so;

·     he stated the specific reasons why he considered there to be such a clear, common sense basis for drawing adverse inferences and why he did not consider - on the facts of the case -  that Mr Quinn’s failure to give the explanations (that he was to give at trial) could be explained or excused by the absence of a solicitor;

·     it appears to the Commission to be inherent in the reasoning for the trial judge’s decision to draw inferences that he would have considered the matter differently had Mr Quinn been able to show cause why he needed legal advice before putting his account to police officers.”

8.19     The Commission notes and endorses the considerations referred to by Hutton LCJ at page 68 of his judgement (as noted in paras. 2.14 and 8.12. above) as to which he stated why “it would have been the easiest thing in the world” for Mr Quinn to have provided to police officers the explanations which he relied upon at trial, irrespective of the presence or absence of a solicitor.        

8.20     The Commission considers that the Court of Appeal would undoubtedly conclude that lack of access to a solicitor is a factor, but no more than a factor, which ought to be taken into account by a judge when deciding how he should properly exercise his discretion to in the matter of drawing inferences.  In Mr Quinn’s case the Commission considers that, having regard to all the relevant evidence and circumstances, there is such a clear, common sense basis on the facts for the drawing of adverse inferences that the absence of a solicitor makes little, if any, difference.  This was clearly the trial judge’s view on the facts.  Accordingly, even if the Court of Appeal was to conclude that the trial judge, as a matter of legislative interpretation, discounted the absence of legal advice as a factor to be taken into account, there is no real possibility that the Court of Appeal would regard the exercise of his discretion as flawed to the point of affecting the safety of the conviction.”

The 2002 Judicial Review

“Applying this reasoning to the present circumstances the Court of Appeal could not find that the trial judge’s drawing of an adverse inference was unfair on account of its failure to comply with article 6 of ECHR because the applicant’s trial, occurring as it did before 2 October 2000, did not attract the protection of the Convention.  The Court of Appeal could not apply the Convention retrospectively to the conduct of the trial and could not therefore have found that there was an unfairness in the trial process, much less that the verdict was unsafe”

Subsequent Jurisprudential Developments

The Grand Chamber Decision in Salduz v Turkey

“In such circumstances, Article 6 will normally require that the accused be allowed to benefit from the assistance of a lawyer already at the initial stages of the police investigation. However, this right has so far been considered capable of being subject to restrictions for good cause.  The question, in each case, has therefore been whether the restriction was justified and, if so, whether in the light of the entirety of the proceedings it has not deprived the accused of a fair hearing, for even a justified restriction is capable of doing so in certain circumstances.”

                        [Emphasis added.]

“In most cases, this particular vulnerability can only be properly compensated for by the assistance of a lawyer whose task it is, among other things, to help ensure respect of the right of an accused not to incriminate himself. …

Early access to a lawyer is part of the procedural safeguards to which the Court will have particular regard when examining whether a procedure has distinguished the very essence of the privilege against self-incrimination.”

Adding at [55]:

“… The Court finds that in order for the right to a fair trial to remain sufficiently ‘practical and effective’, Article 6(1) requires that, as a rule, access to a lawyer should be provided as from the first interrogation of a suspect by the police, unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to justify this right.  Even where compelling reasons may exceptionally justify denial of access to a lawyer, such restriction - whatever its justification - must not unduly prejudice the rights of the accused under Article 6.  The rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction.”

                        [Our emphasis.]

The Decision in Cadder

“I would allow the appeal on the ground that leading and relying on the evidence of Cadder’s interview by the police was a violation of his rights under Article 6(3)(c) read in conjunction with Article 6(1) of the Convention.”

Both Lord Hope and Lord Rodger, at [62] and [103] respectively, noted that the Supreme Court’s decision could in principle give rise to referrals by the Scottish Criminal Cases Review Commission. Pausing, it can be readily seen that the decisions in Salduz and Cadder belong to the same wavelength.

“A trial is not to be taken to have been unfair just because of the non-disclosure.  The significance and consequences of the non‑disclosure must be assessed.  The question at the stage of an appeal is whether, given that there was a failure to disclose and having regard to what actually happened at the trial, the trial was nevertheless fair ….

The test that should be applied is whether, taking all the circumstances of the trial into account, there is a real possibility that the jury would have arrived at a different verdict.”

[Our emphasis.]

The Grand Chamber Decision in Ibrahim

“ The test set out in Salduz for assessing whether a restriction on access to a lawyer is compatible with the right to a fair trial is composed of two stages. In the first stage the Court must assess whether there were compelling reasons for the restriction. In the second stage, it must evaluate the prejudice caused to the rights of the defence by the restriction in the case in question. In other words, the Court must examine the impact of the restriction on the overall fairness of the proceedings and decide whether the proceedings as a whole were fair. This test has been cited and applied on numerous occasions by the Court. However, the Court considers that the application of the Salduz test in its subsequent case-law discloses a need to clarify each of its two stages and the relationship between them.”

Continuing at [267]:

“The first question to be examined is what constitutes compelling reasons for delaying access to legal advice. The criterion of compelling reasons is a stringent one: having regard to the fundamental nature and importance of early access to legal advice, in particular at the first interrogation of the suspect, restrictions on access to legal advice are permitted only in exceptional circumstances, must be of a temporary nature and must be based on an individual assessment of the particular circumstances of the case (see Salduz , cited above, § 54  in fine  and § 55). It is of relevance, when assessing whether compelling reasons have been demonstrated, whether the decision to restrict legal advice had a basis in domestic law and whether the scope and content of any restrictions on legal advice were sufficiently circumscribed by law so as to guide operational decision-making by those responsible for applying them. To date, the Court has not provided guidance on what might be considered compelling reasons under this limb of the Salduz test.”

The judgment continues at [259]:

“The Court accepts that where a respondent Government have convincingly demonstrated the existence of an urgent need to avert serious adverse consequences for life, liberty or physical integrity in a given case, this can amount to compelling reasons to restrict access to legal advice for the purposes of Article 6 of the Convention. In such circumstances, there is a pressing duty on the authorities to protect the rights of potential or actual victims under Articles 2, 3 and 5 § 1 of the Convention in particular.”

“The question arises whether a lack of compelling reasons for restricting access to legal advice is, in itself, sufficient to found a violation of Article 6.”

The Court answered this question at [262]:

“ The Court accordingly reiterates that in order to establish  a breach of the right to a fair trial it is necessary to view the proceedings as a whole, and the Article 6 § 3 rights as specific aspects of the overall right to a fair trial rather than ends in themselves (see paragraphs 250-251 above). The absence of compelling reasons does not, therefore, lead in itself to a finding of a violation of Article 6 of the Convention.”                

The Court elaborated at [265]:

“Where there are no compelling reasons for restricting access to legal advice, the Court must apply a very strict scrutiny to its fairness assessment. The failure of the respondent Government to show compelling reasons weighs heavily in the balance when assessing the overall fairness of the trial and may tip the balance in favour of finding a breach of Article 6 §§ 1 and 3 (c) (see, for a similar approach with respect to Article 6 §§ 1 and 3 (d),  Schatschaschwili , cited above, § 113). The onus will be on the Government to demonstrate convincingly why, exceptionally and in the specific circumstances of the case, the overall fairness of the trial was not irretrievably prejudiced by the restriction on access to legal advice. ”

“The right not to incriminate one’s self is primarily concerned with respect to the will of an accused person to remain silent and presupposes that the prosecution in a criminal case seek to prove their case without resort to evidence obtained through methods of coercion or oppression in defiance of the will of the accused …

The right to remain silent under police questioning and the privilege against self-incrimination are generally recognised international standards which lie at the heart of the notion of a fair procedure under Article 6. Their rationale lies, inter alia, in the protection of the accused against improper compulsion by the authorities, thereby contributing to the avoidance of miscarriages of justice and to the fulfilment of the aims of Article 6 …”

The judgment continues at [267]:

“It is important to recognise that the privilege against self-incrimination does not protect against the making of an incriminating statement  per se  but, as noted above, against the obtaining of evidence by coercion or oppression. It is the existence of compulsion that gives rise to concerns as to whether the privilege against self-incrimination has been respected. For this reason, the Court must first consider the nature and degree of compulsion used to obtain the evidence. ”

Elaborating, the Court distilled from its case law three particular situations generating concerns about improper compulsion in breach of Article 6:

(a)              Where a suspect is obliged to testify under threat of sanctions and either does so in consequence or is sanctioned for refusing to do so,

(b)              The procurement of real evidence or statements from the application of physical or psychological pressure, often in contravention of Article 3 ECHR and

(c)               The use of subterfuge to elicit information which the authorities were unable to obtain during questioning.

“…. it is inherent in the privilege against self-incrimination, the right to silence and the right to legal assistance that a person ‘charged with a criminal offence’ for the purposes of Article 6 has the right to be notified of these rights.”

At [273] the Court made clear, however, that where a failure of notification occurs it is necessary to “… examine whether, notwithstanding this failure, the proceedings as a whole were fair.”  Extensive guidance follows in the next ensuing paragraph, at [274]:

“ When examining the proceedings as a whole in order to assess the impact of procedural failings at the pre-trial stage on the overall fairness of the criminal proceedings, the following non-exhaustive list of factors, drawn from the Court’s case‑law, should, where appropriate, be taken into account:

(a)        Whether the applicant was particularly vulnerable, for example, by reason of his age or mental capacity.

(b)        The legal framework governing the pre-trial proceedings and the admissibility of evidence at trial, and whether it was complied with; where an exclusionary rule applied, it is particularly unlikely that the proceedings as a whole would be considered unfair.

(c)        Whether the applicant had the opportunity to challenge the authenticity of the evidence and oppose its use.

(d)        The quality of the evidence and whether the circumstances in which it was obtained cast doubt on its reliability or accuracy, taking into account the degree and nature of any compulsion.

(e)        Where evidence was obtained unlawfully, the unlawfulness in question and, where it stems from a violation of another Convention Article, the nature of the violation found.

(f)         In the case of a statement, the nature of the statement and whether it was promptly retracted or modified.

(g)        The use to which the evidence was put, and in particular whether the evidence formed an integral or significant part of the probative evidence upon which the conviction was based, and the strength of the other evidence in the case.

(h)        Whether the assessment of guilt was performed by professional judges or lay jurors, and in the case of the latter the content of any jury directions.

(i)          The weight of the public interest in the investigation and punishment of the particular offence in issue.

(j)          Other relevant procedural safeguards afforded by domestic law and practice.”

The Grand Chamber Decision in Beuze v Belgium

Challenging Commission Determinations: the Legal Standard

“The conclusion of the Commission that the failure of the Applicant to give any explanation for his refusal to give police an account of his movements, taken in conjunction with the fact that he did not object to being interviewed nor did he ask that the interviews be postponed until his solicitor arrived and that he was unable to relate his failure to answer questions to the absence of his solicitors, meant that the Court of Appeal would not have decided that the conviction was unsafe is an entirely tenable one in the circumstances.  I have concluded that the Commission’s decision that there was no real possibility that the conviction would not be upheld where the reference to be made is unimpeachable.”

                        [Our emphasis.]

The Impugned Determination of the Commission

“… where there has been a breach of human rights, the Commission stands by its conclusion that whether this renders the conviction unsafe depends on all the circumstances of the case. This is clearly the approach articulated in Cadder and subsequent cases.”

The Commission then determined to accept at its zenith the submission that the Court of Appeal would be “bound to” decide that the applicant’s Article 6(1) rights had been violated, proceeding to “… consider whether such a breach would affect the safety of the conviction”.

“Had it not been for the adverse inference, is there a real possibility that the Lord Chief Justice would have reached a different verdict in Mr Quinn’s case?”

The Commission then proceeded to consider the strength of the other evidence adduced by the prosecution against the applicant.  It made the following assessment:

“The CCRC has concluded that there was sufficient evidence to justify a conviction and there is no real possibility that the judge would have reached a different verdict, if it were not for the adverse inference being drawn against Mr Quinn.”

“The trial judge clearly set out in his judgment the evidence which led him to be satisfied of Mr Quinn’s guilt. He had regard to the fibre evidence, the firearm discharge, the fact Mr Quinn was in the area at the relevant time, his observation of both Mr Quinn and Mr McCartan giving evidence, and the drawing of an adverse inference in relation to Mr Quinn’s failure to give an alibi at his police interview. It is important to note that he specifically did not draw an adverse inference from the failure of Mr Quinn to account for the fibres, firearm residue and glass forensic evidence at interview.

…

Leaving aside the difficulties with the retrospective effect of the Human Rights Act, the CCRC has assessed the evidence in conjunction with the test in Cadder and has concluded that there is no real possibility that the judge would have come to a different verdict, if it were not for the one adverse inference being drawn. There was ample evidence to justify a conviction, and as such, there is no real possibility that the Court of Appeal would consider the conviction unsafe, if the CCRC were to refer it.”

“The first question which arises in the context of criminal appeals is whether a conviction at the end of a trial which fails to match up to the requirements of Article 6 can ever be anything other than unsafe. It is submitted that the answer must be in the negative …”

The Commission rejected this contention.

(a)               A failure to give effect to the Cadder decision that the defence of an accused person will in principle be irretrievably prejudiced by the denial of access to legal advice during police questioning.

(b)              A failure to examine the safety of the applicant’s conviction through the prism of the breach of Article 6(1)(c) occasioned by the absence of a legal advisor during police interviews.

(c)               A failure to recognise the finding of one breach of Article 6 ECHR by the European Commission (see [25] - [26] above).

(d)              Treating the breach of the applicant’s rights under Article 6(3)(c) as “cured” by his legal representation at trial and in subsequent proceedings.

(e)               Treating the absence of legal advice and the subsequent adverse inference as a discrete matter rather than assessing whether the proceedings as a whole and taking all circumstances into account were unfair.

There is, finally, one unvarnished Wednesbury ground of challenge:

(f)                The impugned decision was “… irrational in the Wednesbury sense … [by virtue of the Commission’s failure] … to have sufficient regard to the prejudicial impact of the said violation and the drawing of ‘strong adverse inferences’ by the trial judge in convicting the Applicant”.

(i)                 Given the decisions of the House of Lords in Lambert and Kansal (both noted above) the Human Rights Act did not apply retrospectively to the applicant’s trial and conviction, with the result that he cannot now complain of a breach of his Article 6 rights in those processes.

(ii)              In the alternative to (i), the applicant’s right to a fair trial under Article 6 was not breached in any event.  The decision in Cadder does not support the applicant’s contention to the contrary.

(iii)            The post - Cadder decisions of the Grand Chamber further undermine the applicant’s contention that his deprivation of access to a lawyer gave rise to a breach of his Article 6 fair trial rights.

(iv)            Even assuming that the applicant can invoke Article 6 and can further demonstrate a breach of his fair trial rights thereunder it does not follow inexorably that his conviction was unsafe. The Commission correctly recognised this.

(v)               The legal threshold for interference with the Commission’s application of the “real possibility” statutory test is not overcome.

“… there is no real possibility that the judge would have come to a different verdict if it were not for the one adverse inference being drawn.  There was ample evidence to justify a conviction and as such there is no real possibility that the Court of Appeal would consider the conviction unsafe, if the CCRC were to refer it.”

We consider that the exercise conducted by the Commission confounds this discrete ground of challenge.  We conclude further that these were matters of evaluative judgement for the Commission manifestly harmonious with the Pearson principle.

Conclusion