The Grand Chamber of the European Court of Human Rights (ECtHR) held last week that the United Kingdom did not violate the rights to access to counsel and to a fair trial when, without an attorney present, authorities questioned three men suspected of involvement in the July 21, 2005 London bombing attempt; the State did violate those rights, the ECtHR held, when questioning a fourth man who was initially brought in as a witness and was later convicted of assisting one of the bombers after the fact. See ECtHR, Ibrahim and Others v. the United Kingdom [GC], nos. 50541/08, 50571/08, 50573/08 and 40351/09, ECHR 2016, Judgment of 13 September 2016, para. 86. The decision partially reverses a Chamber decision of December 2014, which found no violations in any of the interviews or trials.
Within days of the attempted bombings, all four applicants were questioned by police. See id. at para. 17. The first three were arrested and questioned without an opportunity to consult a lawyer so the police could more readily elicit any relevant information regarding future attacks, a practice known as “safety interviews.” See id. at para. 64. The fourth applicant was interviewed as a witness and not in a safety interview, but became a suspect in the course of that interview. See id. at paras. 140, 300. The Grand Chamber held that there were not the same compelling reasons to delay his exercise of his rights and his witness statement should not have been used against him at trial. See id. at paras. 300, 310, 311. This is the first case before the ECtHR to address the right to legal assistance in the context of a safety interview, a technique allowed in the United Kingdom under its domestic terrorism legislation.
The police conducted safety interviews with each of the first three applicants citing justifications provided in the domestic legal framework. The police first stated that there were “reasonable grounds for believing that delaying an interview would involve immediate risk of harm to persons or serious loss of, or damage to, property.” See Ibrahim and Others v. the United Kingdom [GC], 13 September 2016, at paras. 23-38, 42-45, 51-54. Additionally, the police believed that allowing access to counsel would alert other suspects not yet in custody and it would be more difficult to apprehend and prosecute those individuals. See id. at paras. 28, 43, 51. The United Kingdom’s Terrorism Act 2000 allows for the suspension of the right to access to counsel and the right not to be held incommunicado for suspects of terrorist activity in certain circumstances, including the reasons provided by the police in the applicants’ case. See id. at paras. 186-90.
In one instance, the applicant was subjected to multiple safety interviews over the course of several hours, and in all three cases, the applicant had already requested counsel. See id. at paras 23-38, 42-45, 51-54. When one applicant was questioned during a safety interview, his lawyer had already made multiple attempts to contact the applicant but was told the applicant was unavailable. See id. at paras. 42-45. The applicants were told that they were not required to answer the questions during the interviews but their answers and their decision to remain silent could be used as evidence against them. See id. at paras. 21, 30, 45, 54.
While the domestic court did not allow adverse inferences to be drawn from silences during safety interviews, the court did allow the admission of evidence from the interviews. See id. at paras. 68, 74 The first three applicants were convicted of conspiracy to commit murder and sentenced to life imprisonment with a minimum of 40 years. See id. at paras. 119-20.
During the course of the fourth applicant’s witness interview, it became clear that after the failed attack, he had aided a fourth bomber and at the same time, possessed the knowledge that the police sought the suspect. See id. at para. 143. Although the officers questioning the applicant were aware that he could incriminate himself and he was, therefore, now a suspect rather than a witness, the police did not inform the applicant of his right to legal counsel and continued to question him as a witness. See id. at para. 140. After adopting a written statement he made as a witness, which he modified after consulting legal counsel, he was charged with assisting the fourth bomber, ultimately convicted of assisting the bomber and failing to disclose information, and sentenced to 10 years’ imprisonment (later reduced to eight). See Ibrahim and Others v. the United Kingdom [GC], 13 September 2016, at paras. 173, 179. His full witness statement in its original form was provided to the jury during trial. See id. at paras. 161, 169.
Citing sections 1 and 3(c) of Article 6 on the right to a fair trial and to legal counsel under the European Convention on Human Rights (ECHR), all four applicants lodged complaints with the ECtHR. See id. at para. 234. The lack of access to legal advice during initial questioning, they argued, rendered their subsequent convictions unfair. See id. The Fourth Section’s Chamber decision, issued in December 2014, held that the proceedings did not violate Article 6, finding “compelling reasons to delay the applicants’ access to legal advice in light of the exceptionally serious and imminent threat to public safety.” See id. at para. 235. Furthermore, the Chamber held that the admission of evidence from the statements made during the safety interviews had not unduly prejudiced the trials due to the safeguards in the legislation, the additional evidence in the case, and the judge’s instructions to the jury. See id.
Analysis of the Grand Chamber
The Grand Chamber examined two questions with respect to each applicant: (1) whether there were compelling reasons for restricting the applicant’s access to legal advice, and (2) whether the proceedings overall were fair. See id. at paras. 258, 262, 275, 297. In considering whether there were compelling reasons for the restriction, the Court found that in addition to analyzing whether there existed exceptional circumstances, it must also consider whether restriction was established by domestic law, whether the restriction was temporary, and whether the restriction was imposed based on an assessment of the circumstances of the case. See id. at paras. 276-77.
The First Three Applicants
With respect to the first three applicants, the Court found compelling reasons – namely the need to assess the threat posed by any future planned attacks – for the restrictions and that the subsequent proceedings were fair. See id. at paras. 276, 279, 294. The restriction on access to counsel was carried out with time limits of 48 hours, for reasons based on specific facts surrounding each applicants’ case, and according to the domestic framework. See id. at para. 277. Additionally, the following proceedings were found to be fair because the applicants were afforded multiple procedural opportunities to challenge the admission of the information obtained during their interviews and that evidence constituted merely one component in a sea of other evidence against them. See id. at paras. 283, 289–91. As such, the Court found no violation of the applicants’ rights under Article 6 of the ECHR. See id. at para. 294.
The Fourth Applicant
With respect to the fourth applicant, the Court did not find compelling reasons for his restricted access to legal advice, distinguishing his case from the others based on three factors. See id. at paras. 299, 300. The Court first noted that the domestic law does not allow for a suspect to be questioned as a witness without notification of his rights and, therefore, the police’s actions were not in accordance with domestic law. See id. at para. 299. Moreover, the specific reasoning behind the decision to continue questioning the applicant without notification of his rights could not be reviewed, as it had not been recorded, and the Court found the police specifically did not tell the applicant of his right to remain silent. See Ibrahim and Others v. the United Kingdom [GC], 13 September 2016, at paras. 299, 300. Taking all of these factors into account, the Court held that the government lacked compelling reasons to restrict the fourth applicant’s rights. See id.
Because compelling reasons were not found, the Court presumed that the proceedings as a whole were unfair based on several factors. See id. at para. 301. First, the senior officer who authorized the continuance of the applicant’s interview after incriminating statements had been made did not provide evidence at trial, meaning that both the trial court and the appellate court did not have the chance to review the decision. See id. at para. 305. Second, the statements made in the applicant’s interview had been crucial to the prosecution’s case. See id. at para. 307. Lastly, the Court found that the jury instructions regarding the interview statements were unreasonably broad, allowing the jury to give the statements significant weight despite procedural errors. See Ibrahim and Others v. the United Kingdom [GC], 13 September 2016, at para. 310. As a result, the Court found a violation of the applicant’s rights under Article 6 of the ECHR. See id. at paras. 311, 318.
Previous ECtHR cases have found violations of the right to access counsel in the context of questioning a suspect of terrorism, but with this holding, the ECtHR has upheld an exception to that right where it is necessary to avoid serious harm to the public but must be done within the domestic legal framework and must be recorded allowing for later review. See id. at paras. 277, 279, 294, 299, 300; ECtHR, Salduz v. Turkey [GC], no. 36391/02, ECHR 2008, Judgment of 27 November 2008, para. 62.
Similar to this case, the ECtHR has allowed derogations from certain rights under the ECHR in the context of questioning or holding individuals suspected of terrorist activities. For instance, under Article 5 (right to liberty and security) of the ECHR, States are not allowed to detain individuals for the sole purpose of intelligence gathering, but the Court has held that where there is an “honest suspicion on reasonable grounds” of terrorist activity, an individual may be held and questioned. See ECtHR, Murray v. United Kingdom [GC], no. 14310/88, Judgment of 28 October 1994. However, the ECtHR does not allow derogations from the prohibition of torture or other cruel, inhuman, or degrading treatment or punishment (Article 3). See ECtHR, Ireland v the United Kingdom, no. 5310/71, Judgment of 18 January 1978.
For more information about the European Court of Human Rights or to read about a prior ECtHR case involving the police killing of a man erroneously mistaken for a London bombing suspect, visit IJRC’s Online Resource Hub. For a summary of the European Court’s jurisprudence on arrestees’ right to counsel or derogations in light of terrorist threats, see the ECtHR’s factsheets on police arrest and assistance of lawyers and on terrorism and the ECHR.