Vulnerable Defendants and the Right to Silence
| Published date | 01 October 2015 |
| Date | 01 October 2015 |
| DOI | 10.1177/0022018315605230 |
| Subject Matter | European Court of Human Rights |
European Court of Human Rights
European Court of Human Rights
Vulnerable Defendants and the Right to Silence
O’Donnell vUnited Kingdom [2015] ECHR 16667/10
Keywords
Right to silence , adverse infere nces, vulnerab le witnesses, ef fective parti cipation, right to a
fair trial
The Facts
The applicant, O’Donnell, was tried and convicted of murder in Northern Ireland. O’Donnell had an IQ
of 62, placing him within the bottom 1 per cent of the general population, and the understanding of spo-
ken English equivalent to a six-year old. The prosecution case was that, in October 2004, following a day
of drinking, O’Donnell and another man killed the deceased. There was evidence from witnesses that
O’Donnell had been aggressive and threatening towards the deceased, and that he had asked the
deceased to come out and fight with him after being refused admission to a public house. The police
found two sets of clothes at O’Donnell’s flat which were heavily stained with the blood of the deceased.
One of the items of clothing had O’Donnell’s name tag ironed on to it. A plastic bag was also found at the
premises which contained a knife with the blood of the deceased on it.
At trial, the defence applied for a ruling that O’Donnell’s mental conditionmade it undesirable for him
to give evidence. The effect of a favourable ruling would have been that no adverse inference could be
drawn from O’Donnell’s silence under Article 4 of the Criminal Evidence (Northern Ireland) Order
1988. A voir direwas held at which the trial judgeconsidered expert evidencefrom a clinical psychologist,
who was of the opinion that O’Donnell‘would be highly suggestible,he would have problems understand-
ing questions,and would find it difficultto give coherent responses’(at [15]). Considerationwas also given
to the evidence of a consultant psychiatrist,who was of the opinion that O’Donnell ‘‘‘should be capableof
following proceedings and actively contributing tothem’’ if account were taken of his need to havemate-
rial simply phrased, and if he were allowed adequate consultation with others to ascertain his under-
standing...’ (at 25]). The trial judge preferred this second expert opinion and refused the defence
application,finding that the manner of questioning could be controlled to ensure no unfairness. O’Donnell
elected not to testify and the jur y was invited to draw an adverse infe rence from his silence.
O’Donnell’s application for leave to appeal was dismissed by the Court of Appeal, as was his request
that the Court certify questions of general public importance for the consideration of the Supreme Court.
The case was then brought to the European Court of Human Rights. O’Donnell complained that his trial
had been unfair, in contravention of Article 6 of the European Convention on Human Rights. In partic-
ular, it was argued that the trial judge’s ruling as to the desirability of his giving evidence was improper
and unfair, as he would have been unable to understand the significance of questions or provide a coher-
ent account of what had happened. In addition, it was argued that the trial judge’s direction to the jury in
respect of adverse inferences had been flawed, as he had omitted to direct the jury that no inference
should be drawn unless they considered that there was a case to answer.
The Journal of Criminal Law
2015, Vol. 79(5) 322–325
ªThe Author(s) 2015
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DOI: 10.1177/0022018315605230
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