A European court ruling on the right to remain silent could open the floodgates for appeal cases, writes Ben Emmerson QC. Ben Emmerson QC is a tenant at Matrix Chambers and acted on behalf of Liberty.

A case brought by the human rights organisation Liberty has led to a defeat for the Government at the European Court of Human Rights in Strasbourg.

The case centred on William and Karen Condron, who were convicted of supplying drugs in 1995 and sentenced to four years each in jail.

The case concerned the legislation introduced by the previous government permitting adverse inferences to be taken from a defendant remaining silent during police interviews.

The European Court said that adverse inferences from silence must be restricted, particularly in situations of trial by jury where proper safeguards must be put in place.

The court stressed the importance of legal advice and a particular need for caution before drawing adverse inferences where a defendant is acting on legal advice.

One aspect of the case concerned the effect on the appeals procedure. The court pointed out that there must be a balance between the need to have adverse inferences and the fact that the adverse inference is being drawn by a jury.

It said that if proper directions are not given to a jury then “the Court of Appeal had no means of ascertaining whether or not the applicants’ silence played a significant role in the jury’s decision to convict”. Therefore, if the trial judge does not give appropriate directions, the Court of Appeal cannot correct them and must quash the conviction.

More importantly, the Court of Appeal must not confine itself to deciding whether a conviction is safe but also consider whether a defendant received a fair trial. “The question whether or not the rights of the defence guaranteed to an accused under Article 6 of the convention were secured in any given case cannot be assimilated to a finding that his conviction was safe in the absence of any enquiry into the issue of fairness,” the court said.

This is the first of five cases in this area that are due to be heard and may well lead to UK cases being referred back to the Court of Appeal.