Condron v. United Kingdom

The applicants, who were heroine addicts, had been arrested and convicted for drug related offences. Upon their arrest, the solicitor had maintained that they were unfit to be interviewed as they were displaying early stages of heroine withdrawal. However, the Force Medical Examiner assessed both applicants as fit to be interviewed. Both applicants failed to make any comment on an issue the police had warned them would mitigate against them at trial if they failed to address it during interrogation. During trial, both applicants claimed that they had complied with the police in their interviews based on their counsel’s advice. Both were convicted after the judge told the jury that they had the ability to draw inference from the applicants’ silence under police questioning. The appellants argued that their rights under Article 6 (right to fair trial) of the European Convention on Human Rights (ECHR) had been violated, they maintained that before an adverse inference could be drawn from silence, safeguards that were in keeping with the particular circumstances at issue had to be in place. They further submitted that the need for safeguards was essential since in their case their right was exercised in police custody on the advice of the solicitor and at a period where they were extremely vulnerable and confused as a result of their heroine withdrawal symptoms.

The Court concluded that there was no absolute right to silence and this did not preclude the drawing of an adverse inference. However, the Court found that this had to be done in the light of the facts of the case. Again, the fact that the applicants' silence was left to a jury could not be deemed incompatible with the principles of a fair trial. Nonetheless, the Court noted that the fact that the applicants were advised by their lawyer to maintain silence had to be given due weight by the domestic courts. The Court held that Article 6 (right to fair trial) of the ECHR was applicable as the applicants were denied a fair hearing in the preceding case.

"66. However, in the case at issue it was the function of the jury, properly directed, to decide whether or not to draw an adverse inference from the applicants' silence. Section 34 of the 1994 Act specifically entrusted this task to the jury as part of a legislative scheme designed to confine the use which can be made of an accused's silence at his trial. In the circumstances the jury was not properly directed and the imperfection in the direction could not be remedied on appeal. Any other conclusion would be at variance with the fundamental importance of the right to silence, a right which, as observed earlier, lies at the heart of the notion of a fair procedure guaranteed by Article 6. On that account the Court concludes that the applicants did not receive a fair hearing within the meaning of Article 6 § 1 of the Convention."

"67. The Court observes that the applicants also challenge the terms of the direction on other grounds: firstly, as regards the omission of a reference to the requirement that the prosecution establish a prima facie case before an adverse inference may be drawn; secondly, as regards the judge's failure to mention that their silence could not constitute the "main" basis for their conviction. The applicants relied on the principles set out in the John Murray judgment. At the oral hearing before the Court, the applicants' lawyer conceded that these points had not been taken on appeal. He maintained however that, as grounds of appeal, they would have had little prospects of success. The Government argued in reply that, having regard to the facts that the Court of Appeal accepted their main ground for challenging the direction and that the law in this area was evolving at the time of their appeal, the applicants should have included these issues in their grounds of appeal. For its part, the Court considers that it does not have to take a stand on the issues raised by the applicants having regard to its earlier finding on the main defect on which they rely."