The K-Zone: Murray v United Kingdom (1996)

This case ([1996] 22 EHRR 29) demonstrates the interaction between the EuropeanConventionOnHumanRights and UK legislation that seeks to limit the accused's RightToSilence. Currently such legislation is embodied in the CriminalJusticeAndPublicOrderAct1994, but at the time and place of murray the relevant enactments were the Prevention of Terrorism (Temporary Provisions) Act (1989) and its subordinate Orders.

Murray was a was member of the IRA. He was arrested in connection with terrorism charges, in particular for conspiring to murder a police informer who was held captive in the house in which Murray was arrested. He maintained his silence for the entire proceedings. In particular, he refused to provide an explanation for his presence in the house, despite being cautioned that his refusal to answer could be held against him. In total, he was questioned for over 20 hours without being allowed access to legal advice. At trial, the judge warned him that his inability to give an account of himself could be interpreted as evidence against him. Under the relevant UK legislation both the denial of access to legal advice, and the warning that his silence could be adversely interpreted, were permissible. The case wase tried by a judge alone, as was conventional in terrorism cases in Norther Ireland (see: DiplockCourt). The judge stated that he was prepared to accept the accused's refusal to account for his presence in the house in a `common sense' way; accordingly he was convicted of conspiracy to murder and sentenced to eight years' imprisonment. His appeal to the Court of Appeal failed. He then appealed to the EuropeanCommissionForHumanRights, on the grounds that the denial of access to legal advice, and the drawing of adverse inferences from his refusual to testify, were in contravention of Article 6(1) of the Convention. This Article provides, in broad terms, the right to a fair and impartial trial.

In defence, he noted that the Commision had already decided in SaundersVUnitedKingdom1996 that UK legislation which compelled a Self-incrimination from a person accused of a criminal charge was incompatible with Article 6. A similar decision was reached in Funke v France (1993). However, these cases had in common that the accused was placed under a compulsion to provide incriminating evidence, whereas in Murray the right to silence was explicitly protected. The judgement said: ``On the one hand, it is self-evident that it is incompatible with the immunities under consideration to base a conviction solely or mainly on the accused's silence or on a refusal to answer questions or to give evidence himself. On the other hand, the Court deems it equally obvious that these immunities cannot and should not prevent that the accused's silence, in situations which clearly call for an explanation from him, be taken into account in assessing the persuasiveness of the evidence adduced by the prosecution.'' In summary, Article 6(1) did not give an asolute right to silence. However, when combined with the refusal to allow legal representation, this was taken as a breach of Article 6(1). It should be noted that neither decision was unanimous.

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