Averill v UK European, Court of Human Rights, 6 June 2000

Article 6 – right to a Fair Trial – Right to Silence – Right to see a Solicitor

The Applicant had been detained in Northern Ireland on 24th April 1994 in connection with two murders. During the first 24 hours of detention access to a solicitor was denied. Fibres taken from gloves and a balaclava found in an abandon burnt our car which had been used by the gunmen in the murder matched fibres found in the applicants hair and clothing. The applicant refused to answer questions and interviews as to his whereabouts at the time of the murder and refused to give any explanation as to the matching fibres. At trial the applicant gave those explanations and called witnesses in support of his defence. The Trial Judge was persuaded by the weight of the forensic evidence against the applicant and drew strong adverse inferences from the applicant’s silence to police questions. The applicant was convicted. Applicants submitted that his right to a fair trial had been breached because of the adverse inferences and because of the denial of access to a solicitor.

1. It was incompatible with the Article 6 Rights to deny a detained person access to a solicitor during the first 24 hours of detention. There was possible prejudice to the applicant at trial resulting from the decision that he took on being given a caution. The Judge had drawn strong adverse inference from his silence at interview and therefore fairness required that he should have the benefit of the assistance of a lawyer at the initial stages of police interrogation.

2. It was incompatible with the fundamental importance of the right to silence to base a conviction solely or mainly on the accused’s silence. However, where evidence clearly called for an explanation which was not given, then a detainee’s silence could be taken into account in assessing the persuasiveness of the Crown’s evidence.

3. Whether article 6 had been infringed by the drawing of adverse inferences from silence of interview had to be decided in the light of all the circumstances of the case. Regard had to be had to the situation where the inference could be drawn. The degree of compulsion and the weight which the National Court attached a silence within the assessment of evidence. In this case the right to fair trial under Article 6 had not been breached by the Judge drawing adverse inferences from the applicant’s silence. Costs of £5,000.00 awarded to the applicant.

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