In 1993, the then home secretary, Michael Howard, promoted the controversial Criminal Justice and Public Order Act, which eroded the right to silence, restricted even further the right of protest and freedom of assembly, criminalised some forms of trespass, brought in more draconian changes to the terrorism laws and eroded the right to bail.The civil liberties organisation, Liberty, criticised these changes as being wrong in principle and likely to violate the European Convention on Human Rights.

Slowly, the courts in the UK and in Strasbourg are proving that our analysis was correct (see, for example, the recent case Caballero v UK concerning bail).Section 34 of that Act allowed a court to draw adverse inferences from a suspect's silence in the police station.

In the recent Liberty case Condron v UK, the defendants (husband and wife) had refused to answer questions in respect of an investigation into the supply of heroin.

There was police observational evidence against them, but at the time of the interview their solicitor was concerned that they were not fit to be interviewed because they were suffering from the early stages of withdrawal from drugs.

The police disagreed.

Their solicitor gave evidence of the fact that he had formed this view of their condition and had therefore advised them not to answer questions.The defendants gave evidence at trial that the heroin found was for personal use.

Both defendants were convicted by nine jurors out of ten, but their co-accused was acquitted.

In the Court of Appeal, their counsel argued that the trial judge should have excluded evidence of the police station interview and should not have allowed the issue of the adverse inference to go to the jury.On 2 May, the European Court of Human Rights unanimously found a violation of Article 6(1), the right to a fair trial.

Unfortunately, the court did not take the view that the caution was ambiguous and unclear, but this was in the context of the defendants having access to legal advice before and during the interview.

However, the court said that the direction given by the judge was flawed in as much as it did not reflect the balance set out in the ECHR case of Murray.

The judge should have limited the jury's discretion to draw inferences in this case.The court also criticised the Court of Appeal because it only concerned itself with the safety of the conviction, not with whether the defendants had received a fair trial.

The court was clear that the decision as to whether a trial was fair cannot be assimilated into the concept of the safety of a conviction.This case will require a change to the way adverse inference is used in the UK courts and thus a change to the standard directions.

Courts will have to give more weight to the balance set out in Murray and Condron, and to the advice given by solicitors in police stations.Already, as a result of Murray, the government has had to restrict the court's ability to draw an adverse inference to circumstances where the suspects have had access to legal advice before the interview.

Michael Howard's 1994 Act is slowly being brought into line with the standards required by human rights legislation, but the process demonstrates the danger of politicians making laws when the political parties are vying with each other to be 'tough on crime'.The most important long-term gain from Condron is that the courts will now have to quash convictions not merely because the conviction is unsafe, but in any case where the trial was unfair and violated the standards set out in Article 6 of the European convention.-- Liberty has just launched a free telephone line to give practical guidance to lawyers and advisers on human rights, as a joint initiative with the Public Law Project.

This service, funded by the Legal Aid Board, is available to anyone with a general civil contract.

The human rights and public law line is open Monday and Wednesday, 2pm to 5 pm, and Tuesday and Thursday, 10am to 1 pm.

Tel 0808 808 4546.