Information Note on the Court’s case-law 199

August-September 2016

Ibrahim and Others v. the United Kingdom [GC] - 50541/08, 50571/08, 50573/08 et al.

Judgment 13.9.2016 [GC]

Article 6

Article 6-3-c

Defence through legal assistance

Delayed access to a lawyer during police questioning owing to exceptionally serious and imminent threat to public safety: violation, no violation

Facts – On 21 July 2005, two weeks after 52 people were killed as the result of suicide bombings in London, further bombs were detonated on the London public transport system but, on this occasion, failed to explode. The perpetrators fled the scene. The first three applicants were arr ested but were refused legal assistance for periods of between four and eight hours to enable the police to conduct “safety interviews”.* During the safety interviews they denied any involvement in or knowledge of the events of 21 July. At the trial, they acknowledged their involvement in the events but claimed that the bombs had been a hoax and were never intended to explode. The statements made at their safety interviews were admitted in evidence against them and they were convicted of conspiracy to murde r. The Court of Appeal refused them leave to appeal.

The fourth applicant was not suspected of having detonated a bomb and was initially interviewed by the police as a witness. However, he started to incriminate himself by explaining his encounter with one of the suspected bombers shortly after the attacks and the assistance he had provided to that suspect. The police did not, at that stage, arrest and advise him of his right to silence and to legal assistance, but continued to question him as a witness and took a written statement. He was subsequently arrested and offered legal advice. In his ensuing interviews, he consistently referred to his written statement, which was admitted as evidence at his trial. He was convicted of assisting one of the bombers an d of failing to disclose information about the bombings. His appeal against conviction was dismissed.

In their applications to the European Court the applicants complained that their lack of access to lawyers during their initial police questioning and the admission in evidence at trial of their statements had violated their right to a fair trial under Article 6 §§ 1 and 3 (c) of the Convention.

In a judgment of 16 December 2014 (see Information Note 180 ), a Chamber of the Court found, by six votes to one, that there had been no violation of Article 6 §§ 1 and 3 (c). On 1 June 2015 the case was referred to the Grand Chamber at the applicants’ request.

Law – Article 6 § 1 in conjunction with Article 6 § 3 (c)

(a) General principles

(i) Clarification of the principles governing restrictions on access to a lawyer – The Grand Chamber considered it necessary to clarify the two stages of the Salduz** test for assessing whether a restriction on access to a lawyer was compatible with the right to a fair trial and the relationship between those two stages. It recalled that the first stage of the Salduz test required the Court to assess whether there were compelling reasons for the restriction, while the second stage required it to evaluate the prejudice caused to the rights of the defence by the restriction, in other words, to examine the impact of the restriction on the overall fairness of the proceeding s and decide whether the proceedings as a whole were fair.

The criterion of compelling reasons was a stringent one: having regard to the fundamental nature and importance of early access to legal advice, in particular at the first interrogation of the susp ect, restrictions on access to legal advice were permitted only in exceptional circumstances, and had to be of a temporary nature and be based on an individual assessment of the particular circumstances of the case. Relevant considerations when assessing w hether compelling reasons had been demonstrated was whether the decision to restrict legal advice had a basis in domestic law and whether the scope and content of any restrictions on legal advice were sufficiently circumscribed by law so as to guide operat ional decision-making by those responsible for applying them.

Where a respondent Government convincingly demonstrated the existence of an urgent need to avert serious adverse consequences for life, liberty or physical integrity in a given case, this could amount to compelling reasons to restrict access to legal advice for the purposes of Article 6. However, a non-specific claim of a risk of leaks could not.

As to whether a lack of compelling reasons for restricting access to legal advice was, in itself, suf ficient to found a violation of Article 6, the Court reiterated that in assessing whether there has been a breach of the right to a fair trial it is necessary to view the proceedings as a whole, and the Article 6 § 3 rights as specific aspects of the overa ll right to a fair trial rather than ends in themselves. The absence of compelling reasons does not, therefore, lead in itself to a finding of a violation of Article 6.

However, the outcome of the “compelling reasons” test was nevertheless relevant to the assessment of overall fairness. Where compelling reasons were found to have been established, a holistic assessment of the entirety of the proceedings had to be conducted to determine whether they were “fair” for the purposes of Article 6 § 1. Where there were no compelling reasons, the Court had to apply a very strict scrutiny to its fairness assessment. The failure of the respondent Government to show compelling reasons weighed heavily in the balance when assessing the overall fairness of the trial and co uld tip the balance in favour of finding a breach of Article 6 §§ 1 and 3 (c). The onus would be on the Government to demonstrate convincingly why, exceptionally and in the specific circumstances of the case, the overall fairness of the trial was not irret rievably prejudiced by the restriction on access to legal advice.

(ii) Principles governing the right to notification of the right to a lawyer and the right to silence and privilege against self-incrimination – In the light of the nature of the privilege against self-incrimination and the right to silence, in principle there could be no justification for a failure to notify a suspect of these rights. Where access to a lawyer was delayed, the need for the investigative authorities to notify the suspect of h is right to a lawyer and his right to silence and privilege against self-incrimination took on particular importance. In such cases, a failure to notify would make it even more difficult for the Government to rebut the presumption of unfairness that arises where there are no compelling reasons for delaying access to legal advice or to show, even where there are compelling reasons for the delay, that the proceedings as a whole were fair.

(b) Application of the principles to the facts

(i) First three applic ants – The Government had convincingly demonstrated in the case of the first three applicants the existence of an urgent need when the safety interviews were conducted to avert serious adverse consequences for the life and physical integrity of the public. The police had had every reason to assume that the conspiracy was an attempt to replicate the events of 7 July and that the fact that the bombs had not exploded was merely a fortuitous coincidence. The perpetrators of the attack were still at liberty and free to detonate other bombs. The police were operating under enormous pressure and their overriding priority was, quite properly, to obtain as a matter of urgency information on any further planned attacks and the identities of those potentially involved in the plot. There was a clear legislative framework basis for the restriction in domestic law regulating the circumstances in which access to legal advice for suspects could be restricted and offering important guidance for operational decision-making, an individual decision to limit each of the applicants’ right to legal advice was taken by a senior police officer based on the specific facts of their cases and there had been strict limits on the duration of the restrictions, which had to end as soon as th e circumstances justifying them ceased to exist and in any case within 48 hours.

There had thus been compelling reasons for the temporary restrictions on the first three applicants’ right to legal advice.

The Court also concluded that in the cases of each of the first three applicants and notwithstanding the delay in affording them access to legal advice and the admission at trial of statements made in the absence of legal advice, the proceedings as a whole had been fair. In so finding it noted among other things that (a) apart from errors made when administering the cautions, the police had adhered strictly to the legislative framework and to the purpose of the safety interviews (to obtain information necessary to protect the public) and the applicants had been formally arrested and informed of their right to silence, their right to legal advice and of the reasons for the decision to restrict their access to legal advice; (b) the applicants were represented by counsel and had been able to challenge the safet y interview evidence in voir dire proceedings before the trial judge, at the trial and on appeal; (c) the statements made during the safety interviews were merely one element of a substantial prosecution case against the applicants; (d) in his summing up t o the jury, the trial judge had summarised the prosecution and defence evidence in detail and carefully directed the jury on matters of law, reminding them that the applicants had been denied legal advice before the safety interviews; and (e) there was a s trong public interest in the investigation and punishment of terrorist attacks of this magnitude, involving a large-scale conspiracy to murder ordinary citizens going about their daily lives.

Conclusion : no violation (fifteen votes to two).

(ii) The fourt h applicant – As with the first three applicants, the Grand Chamber accepted that there had been an urgent need to avert serious adverse consequences for life, liberty or physical integrity. However, it found that the Government had not convincingly demons trated that those exceptional circumstances were sufficient to constitute compelling reasons for continuing with the fourth applicant’s interview after he began to incriminate himself without cautioning him or informing him of his right to legal advice. In so finding, it took into account the complete absence of any legal framework enabling the police to act as they did, the lack of an individual and recorded determination on the basis of the applicable provisions of domestic law of whether to restrict his access to legal advice and, importantly, the deliberate decision by the police not to inform the fourth applicant of his right to remain silent.

In the absence of compelling reasons for the restriction of the fourth applicant’s right to legal advice, the b urden of proof shifted to the Government to demonstrate convincingly why, exceptionally and in the specific circumstances of the case, the overall fairness of the trial was not irretrievably prejudiced by the restriction on access to legal advice. The Gran d Chamber found that the Government had not discharged that burden, for the following reasons: (a) the decision, without any basis in domestic law and contrary to the guidance given in the applicable code of practice, to continue to question the fourth app licant as a witness meant that he was not notified of his procedural rights; this constituted a particularly significant defect in the case; (b) although the fourth applicant had been able to challenge the admissibility of his statement in a voir dire proc edure at the trial, the trial court did not appear to have heard evidence from the senior police officer who had authorised the continuation of the witness interview and so, along with the court of appeal, was denied the opportunity of scrutinising the rea sons for the decision and determining whether an appropriate assessment of all relevant factors had been carried out; (c) the statement formed an integral and significant part of the probative evidence upon which the conviction was based, having provided t he police with the framework around which they subsequently built their case and the focus for their search for other corroborating evidence; and (d) the trial judge’s directions left the jury with excessive discretion as to the manner in which the stateme nt, and its probative value, were to be taken into account, irrespective of the fact that it had been obtained without access to legal advice and without the fourth applicant having being informed of his right to remain silent. Accordingly, while it was tr ue that the threat posed by terrorism could only be neutralised by the effective investigation, prosecution and punishment of all those involved, the Court considered that in view of the high threshold applicable where the presumption of unfairness arises and having regard to the cumulative effect of the procedural shortcomings in the fourth applicant’s case, the Government had failed to demonstrate why the overall fairness of the trial was not irretrievably prejudiced by the decision not to caution him and to restrict his access to legal advice.

Conclusion : violation (eleven votes to six).

Article 41: fourth applicant’s claim in respect of pecuniary damage dismissed; not necessary to make an award in respect of non-pecuniary damage in circumstances of the c ase.

(See Salduz v. Turkey [GC], 36391/02, 27 November 2008, Information Note 113 ; and Dayanan v. Turkey , 7377/03, 13 October 2009, Informatio n Note 123 )

* A safety interview is an interview conducted urgently for the purpose of protecting life and preventing serious damage to property. Under the Terrorism Act 2000, such interviews can take place in the absence of a solicitor and before the det ainee has had the opportunity to seek legal advice.

** Salduz v. Turkey [GC], 36391/02, 27 November 2008, Information Note 113 .

© Council of Europe/European Court of Human Rights This summary by th e Registry does not bind the Court.

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