European Court of Human Rights - case of Brennan v. the United Kingdom (2002) (excerpts)

European Court of Human Rights - case of Brennan v. the United Kingdom (2002) (excerpts)

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III.  RELEVANT INTERNATIONAL MATERIALS

A.  American Convention on Human Rights

38.  The relevant parts of Article 8 provide:

“2.  Every person accused of a criminal offence ... is entitled, with full equality, to the following minimum guarantees:

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(d)  the right of the accused to defend himself personally or to be assisted by legal counsel of his own choosing, and to communicate freely and privately with his counsel.”

B.  Council of Europe Standard Minimum Rules for the Treatment of Prisoners

39.  Article 93 provides:

“An untried prisoner shall be entitled, as soon as he is imprisoned, to choose his legal representative, or shall be allowed to apply for free legal aid where such aid is available, and to receive visits from his legal adviser with a view to his defence and to prepare and hand to him, and to receive, confidential instructions. At his request he shall be given all necessary facilities for this purpose. In particular, he shall be given the free assistance of an interpreter for all essential contacts with the administration and for his defence. Interviews between the prisoner and his legal adviser may be within sight but not within hearing, either direct or indirect, of a police or institution official.”

C.  European Agreement Relating to Persons Participating in Proceedings of the European Court of Human Rights

40.  Article 3 § 2 (c) of this Agreement, currently ratified by twenty-two Contracting States provides in its relevant parts:

“2.  As regards persons under detention, the exercise of this right shall in particular imply that:

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(c)  such persons shall have the right to correspond, and consult out of hearing of other persons, with a lawyer qualified to appear before the courts of the country where they are detained in regard to an application to the Court, or any proceedings resulting therefrom.”


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59.  In this case, the trial judge found that the restriction served the purpose identified under section 45 of the 1991 Act (see paragraph 35 above) of preventing information being passed on to suspects still at large. There was, however, no allegation that the solicitor was in fact likely to collaborate in such an attempt, and it was unclear to what extent a police officer would be able to spot a coded message if one was in fact passed. At most, it appears that the presence of the police officer would have had some effect in inhibiting any improper communication of information, assuming there was any risk that such might take place. While the Court finds that there is no reason to doubt the good faith of the police in imposing and implementing this measure – there is no suggestion, as pointed out by the Government, that the police sought to use the opportunity to obtain evidence for their own purposes –, it nonetheless finds no compelling reason arising in this case for the imposition of the restriction.

60.  As regards the proportionality of the restriction, the Court notes that the police officer was only present at one interview. Indeed, the measure could only apply during the first 48-hour period after the arrest, after which the applicant was able to consult out of hearing with his solicitor until his trial some months later. It was a restriction therefore of very limited duration, and may in that respect be distinguished from the breach found in S. v. Switzerland (cited above), where the restriction on consultations lasted for about eight months.

61.  The consultation was, however, the first occasion since his arrest at which the applicant was able to seek advice from his lawyer. He had been cautioned under Article 3 of the 1988 Order (see paragraph 34 above) and, as noted in John Murray (cited above, p. 55, § 66), his decision as to whether to answer particular questions or to risk inferences being drawn against him later was potentially of great importance to his defence at trial. The Government have argued that the solicitor would have been able to advise him concerning the application of Article 3, even in the presence of the police officer. It also appears that the trial judge, after hearing the solicitor and applicant give evidence concerning the interview, considered that the solicitor had not been inhibited in any way in giving advice to the applicant.

62.  Nonetheless, the Court cannot but conclude that the presence of the police officer would have inevitably prevented the applicant from speaking frankly to his solicitor and given him reason to hesitate before broaching questions of potential significance to the case against him. Both the applicant and the solicitor had been warned that no names should be mentioned and that the interview would be stopped if anything was said which was perceived as hindering the investigation. It is immaterial that it is not shown that there were particular matters which the applicant and his solicitor were thereby stopped from discussing. The ability of an accused to communicate freely with his defence lawyer, recognised, inter alia, in Article 93 of the Standard Minimum Rules for the Treatment of Prisoners, was subject to express limitation. The applicant had already made admissions before the consultation, and made admissions afterwards. It is indisputable that he was in need of legal advice at that time, and that his responses in subsequent interviews, which were to be carried out in the absence of his solicitor, would continue to be of potential relevance to his trial and could irretrievably prejudice his defence.

63.  The Court finds therefore that the presence of the police officer within hearing during the applicant’s first consultation with his solicitor infringed his right to an effective exercise of his defence rights and that there has been, in that respect, a violation of Article 6 § 3 (c) of the Convention taken in conjunction with Article 6 § 1.