NORTHERN Ireland emergency legislation has been found to violate the European Convention on Human Rights. It denies a suspect the right to see a solicitor for the first 48 hours of arrest.
The decision of the European Court of Human Rights, by 12 to seven, is likely to further inflame British political hostility to European courts. It means the British government will have to amend the Northern Ireland (Emergency) Provisions Act 1987, or suspend application of some of its provisions.
There is already some evidence in Northern Ireland, according to legal sources, that in expectation of the ruling suspects are finding access to solicitors easier.
The Strasbourg court also ruled yesterday, by 14 to five, that the controversial right of a court to draw adverse inferences from the silence of an accused person did not necessarily constitute a violation of the principle of the presumption of innocence. The Irish judge, Mr Justice Walsh, was among those dissenting.
The court found that use of such inferences had to be judged on a case by case basis and in accordance with common sense and on the basis of a sufficiently strong prima facie case against the accused person.
A Belfast republican, Mr John Murray, won a ruling from the European Court of Human Rights that the procedures leading to his conviction and eight year sentence on false imprisonment charges were in violation of the convention because he was denied access to a solicitor during the first 48 hours of his arrest. Mr Murray won costs of £15,000.
Mr Murray, who has served his sentence and was released last June, will now return to the Northern Ireland Appeal Court to seek the overturning of his conviction. It is open to that court however, to rule that the violation of the accused person's rights was not such as to jeopardise the validity of the conviction.
Mr Murray's solicitor, Mr Kevin Winters, said in Strasbourg he was delighted by the decision It was also "an important victory for suspects held under emergency provisions".
Mr Winters said it meant the practice of deferring access to lawyers for the first 24 or 48 hours of arrest was in contravention of Article 6 of the Convention on Human Rights. That could lead to the reopening of many cases, he said.
In essence the court found that the British government could have either the right to draw adverse inferences from silence or the right to defer access to a solicitor, but not both.
The court also refused to rule on the related issue of access to a lawyer during subsequent questioning, arguing that it was not crucial to the issues at stake. Mr Winters regretted that decision.
