Abdurahman v R

On 4 February 2008 in the Crown Court at Kingston-upon-Thames, before HHJ Worsley QC and a jury, the Appellant, Ismail Abdurahman, was convicted of assisting an offender with intent to impede his apprehension or prosecution (contrary to s. 4(1) of Criminal

Mr Abdurahman submitted an application to the European Court of Human Rights (‘the Strasbourg Court’), alleging that the proceedings before the domestic courts violated his right to a fair trial under Article 6 of the European Convention of Human Rights (‘the Convention’). On 16 December 2014, the Fourth Section of the Strasbourg Court, sitting as a Chamber, declared that his application was admissible but held (by 6 votes to 1) that there had been no violation of Article 6: Ibrahim and others v United Kingdom (App nos 50541/08, 50571/08, 50573/08 and 40351/09). The case was, however, referred to the Grand Chamber, which on 13 September 2016 held (by 11 votes to 6) that there had been a violation of Article 6 in Mr Abdurahman’s case and awarded him costs, but dismissed the remainder of his claim for just satisfaction.

On 6 February 2019, the Criminal Cases Review Commission (‘CCRC’) decided to refer Mr Abdurahman’s conviction to the Court of Appeal. It did so because it considered that there was a real possibility that the conviction would not be upheld in the light of ‘new evidence’, namely the conclusions of the Grand Chamber of which the Court of Appeal was required by s. 2 of the Human Rights Act 1998 (‘HRA’) to take account.

In those circumstances, Mr John King, who appeared for Mr Abdurahman, submits that the conviction is unsafe and should be quashed. Mr Louis Mably QC, who appears for the Crown, submits that the conviction remains safe notwithstanding the conclusions of the Grand Chamber and invites us to dismiss the appeal.

On 7 July 2005, three suicide bombers detonated bombs on the London Underground and a fourth on a London bus. The bombs exploded and 52 people were killed. Two weeks later, on 21 July 2005, three bombs were detonated on the London underground and a fourth on a London bus. On 23 July 2005, a fifth bomb was discovered abandoned in a bin. Each of the five devices was carried in a rucksack. Inside the rucksacks were triacetone triperoxide (a high explosive), light bulbs, batteries, wires and plastic containers. Although four of the devices were detonated, in each case the main charge, consisting of liquid hydrogen peroxide and chapatti flour, failed to explode.

The four who detonated their bombs were Mukhtar Ibrahim, Hussain Osman, Yassin Omar and Ramzi Mohammed. They were each arrested, charged with conspiracy to murder, convicted after a contested trial and sentenced to life imprisonment with a minimum term of 40 years. The man responsible for abandoning the fifth bomb, Manfo Asiedu, pleaded guilty to conspiracy to cause an explosion and was sentenced to 33 years’ imprisonment.

Immediately following the attempted bombings, Hussain Osman remained in London, then travelled to Brighton and back to London, before taking the Eurostar from London to Paris on 26 July 2005. He then travelled to Rome, where he was arrested on 30 July 2005 and subsequently extradited to the United Kingdom. The offences with which Mr Abdurahman was charged arise out of assistance he is said to have given to Mr Osman after the failed attack and whilst the latter was at large in London.

On 25 July 2005, the police became aware that Mr Abdurahman might be harbouring Mr Osman and mounted a surveillance operation around his home in South-East London. At around 5.30 pm on 27 July 2005, Mr Abdurahman was approached by police officers on his return from work and agreed to accompany them to a police station to assist them with their enquiries. At around 6.15 pm, officers began to question him. At this stage of the investigation he was believed to be and was treated as being a potential witness, not a suspect. He was not arrested; he was not cautioned; he was not informed of his right to legal advice or his right to remain silent; he was not provided with or offered the opportunity to obtain his own lawyer; and he was not given regular breaks. The questioning was also not recorded.

By around 7.15 pm, the officers questioning the Mr Abdurahman determined that, because of the answers he had given during initial questioning, there were grounds to suspect that he had committed a criminal offence. They concluded that the questioning should be stopped and Mr Abdurahman cautioned and informed of his right to free legal advice in accordance with Code of Practice C under the Police and Criminal Evidence Act 1984 (‘PACE’). They informed a senior police officer. The senior officer instructed the questioning officers not to arrest or caution Mr Abdurahman and to continue to question him as a witness. There is no record of this decision or the reasons for it and the senior officer did not give evidence at trial. The officers continued to question Mr Abdurahman as a witness. At around 12.10 am on 28 July 2005, Mr Abdurahman was taken to point out an address where he believed Mr Osman lived. The questioning then recommenced. At around 1.30 am on the same morning, the officers conducting the questioning began recording information provided by Mr Abdurahman in a draft written witness statement. This statement was completed at around 5.00 am and signed by Mr Abdurahman (‘the First Statement’).

The content of the First Statement may be summarised as follows. Mr Abdurahman had become friends with Mr Osman in 1999 but had lost contact with him the following year. On 23 July 2005, Mr Osman had come running up to him at Clapham Junction railway station as he was about to board a train and the two men had greeted each other as old friends. They had boarded the same train. At Mr Abdurahman’s stop, Mr Osman had decided to alight with him on the pretext of wishing to speak about something. As they walked towards Mr Abdurahman’s home, Mr Osman had told Mr Abdurahman that he (Osman) was in trouble with the police. He claimed to have stolen some money and to have escaped from police custody. When they arrived at Mr Abdurahman’s flat, Mr Osman had asked him to put on the television, and together they had watched a report of

Mr Abdurahman went on to describe an injury to Mr Osman’s thigh, which Mr Osman said was incurred while escaping after his bomb had failed to explode. Mr Osman explained how he had pressed the button to activate his bomb but nothing had happened. He gave details of his escape from the underground train and his movements over the next two days, when he had gone to stay with a friend in Brighton who had lent him a car. Mr Osman showed Mr Abdurahman photographs of the other bombers in a national newspaper which he had brought with him and gave their names. The officers conducting the interview showed Mr Abdurahman a number of photographs and he confirmed the identities of three of the males photographed based on the information provided by Mr Osman. Mr Abdurahman also explained that Osman had mentioned a fifth bomber who had not detonated his bomb. He did not know the identity of this person. He explained that Mr Osman had made a few calls from his mobile phone, but had spoken in Eritrean.

Mr Abdurahman then explained that, on the next day, conversation with Mr Osman had been limited. However, Mr Osman had told Mr Abdurahman how the bombers had prepared their bombs and had given him details of videos the group had recorded prior to the bombings, in which they had explained their actions. Mr Osman had made another call on his mobile in the afternoon. He had gone out briefly later that night and had returned with cash. He had asked to borrow clothes and Mr Abdurahman said that he should help himself. On the morning of 26 July, Mr Osman had packed a bag and told Mr Abdurahman that he was going to catch a Eurostar train to Paris from Waterloo train station. He had left for the station at around 8.00 am and about an hour later had called Mr Abdurahman to say that he was on a train. Mr Abdurahman had then switched off his mobile telephone so that Mr Osman could not contact him any further.

Mr Abdurahman described Mr Osman’s wife and recorded the fact that he had taken police officers to a block of flats where he believed that Mr Osman and his wife lived. He concluded the First Statement by emphasising that it had been a chance meeting at Clapham Junction and that he had not taken part in any arrangement to assist or harbour Mr Osman. He said that he had only let Mr Osman stay because he had been afraid.

Once the First Statement had been given, a senior police officer ordered Mr Abdurahman’s arrest. A caution was administered and he was informed of his right to free legal advice, which he at first declined. He then sought and received legal advice prior to his later interviews. Each of the subsequent interviews took place in accordance with the PACE Codes of Practice.

On 30 July 2005, Mr Abdurahman was interviewed under caution with his legal representative. He refused to answer further questions, but provided a further prepared statement (‘the Second Statement’). In that, he said that he had no prior knowledge of the events of 21 July 2005 and deplored them. When stopped on 27 July 2005, he had agreed

On 1 August 2005 Mr Abdurahman was interviewed again. He stated that he had been assisting the police since he was first approached by them but declined to answer further material questions. He was interviewed again on 2 August 2005 and stated that he had played no part in the events, was not and would never be a terrorist and refused to answer any further material questions. He was interviewed for the last time on 3 August 2005 in which he stated that everything he knew was contained in his previous statements.

On 3 August 2005, Mr Abdurahman was charged with assisting an offender contrary to section 4(1) of the Criminal Law Act 1967 and with four counts of failing to give information about acts of terrorism contrary to section 38B(2) of the Terrorism Act 2000.

Mr Abdurahman was tried, along with four others, who were also charged with offences relating to the provision of assistance to the would-be bombers and/or the failure to disclose information relating to the attempted attack. By the time of the trial, the wouldbe bombers had all been convicted.

The prosecution evidence was, in summary, as follows:

The defence case, in summary, was as follows:

Mr Abdurahman chose not to give evidence himself. He admitted, through his counsel, that he had collected the video camera and given it to Mr Osman. He also admitted that, on 25 July 2005 at around 8.45 p.m., he had attended the ticket office at Waterloo Station. His counsel argued that he had not collected the passport and that the contrary evidence of Messrs Osman and Sherif was self-serving and false.

Mr Abdurahman’s counsel made three applications in relation to the First Statement evidence at trial.

First, he submitted that the First Statement, photographs and subsequent police interviews should be excluded under sections 76 or 78 of PACE on the ground that there had been a deliberate breach of PACE Code C. He submitted that Mr Abdurahman had been induced to make the First Statement on the pretence (created and continued by the police) that he was a witness, not a suspect, and because he was tired when the statement was signed, having been questioned all night.

The judge held a voir dire, at which the two police officers who had questioned Mr Abdurahman gave evidence and were cross-examined. In a ruling on 3 October 2007, the judge said this:

Secondly, there was an application to edit certain passages of the jury’s copies of the First Statement to show those passages as qualified or withdrawn by the Second Statement. The application was refused in a separate ruling on 15 October 2007 because the circumstances in which the corrections had been made were relevant to show the extent to which Mr Abdurahman had adopted the First Statement.

Thirdly, Mr Abdurahman applied for the prosecution to be stayed on the grounds that the proceedings were an abuse of process. The grounds for that application can be seen from the judge’s ruling rejecting it on 5 November 2007:

The judge, relying on R v Abu Hamza [2007] 1 Cr App R 27, held that there would only have been an abuse of process if the police had made a clear and unequivocal representation to the Appellant that he would not be prosecuted. He continued:

Mr Abdurahman appealed against both conviction and sentence. He submitted that the trial judge had erred in not excluding the First Statement, photographs and police interviews under sections 76 or 78 of PACE. This followed from the admitted substantial and deliberate breaches of the Code. It also followed from the trial judge’s reading of the phrase ‘in the circumstances at the time’in s. 76(2)(b) of PACE as including the Codecompliant interview under caution, conducted two days after the taking of the First Statement, in which the Second Statement was given. This, it was said, was an error in law. The trial judge was also said to have erred in holding that the First Statement had been freely adopted, given that he had said in the latter that he had come to believe that Mr Osman was one of the would-be bombers, whereas in the Second Statement he had said that he did not believe that, until stopped by the police. In the alternative, it was argued that the judge erred in not excluding those parts of the First Statement which were later contradicted by the Second Statement. Finally, it was said that the abuse of process should have led to a stay of the prosecution.

The Court of Appeal dismissed the appeal against conviction, saying this:

The appeal against sentence was, however, successful. The Court said this at [48]:

Article 6 of the Convention provides in relevant part as follows:

Seven general principles of relevance to this case may be drawn from the Strasbourg case law before Ibrahim.

First, Article 6 requires that ‘access to a lawyer should be provided from the first interrogation of a suspect by police, unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right’: Salduz v United Kingdom [GC] (2009) 49 EHRR 19, [55].

Second, even where compelling reasons are demonstrated, the admission in evidence of incriminating statements made without access to a lawyer must not unduly prejudice the rights of the accused: ibid.

Third, the question whether to admit a pre-trial statement made without legal assistance is a matter for regulation by national law and the national courts; and the Strasbourg Court’s only concern is to examine whether the proceedings have been conducted fairly: Gäfgen v German [GC] (2011) 52 EHRR 1, [162]. Where a pre-trial statement has been obtained as a result of treatment in breach of Article 3, its admission will render the proceedings automatically unfair irrespective of the probative value of the statement and irrespective of whether it was decisive in securing the conviction: Gäfgen, [166]. However, outside this special category of case, the Strasbourg Court’s evaluation of the fairness of the proceedings is a holistic one, which includes consideration of the way in which the evidence was obtained, having regard to whether the rights of the defence have

Fourth, in deciding whether the admission of a statement made without access to a lawyer is compatible with Article 6, the Strasbourg Court will examine: (a) the general legislative framework applicable and any safeguards it contains (Salduz, [56]); (b) the quality of the evidence, including whether the circumstances in which it was obtained cast doubt on its reliability or accuracy (Panovits v Cyprus, App. No. 4268/04, 11 December 2008, [82]; Zaichenko v Russia, App. No. 39660/02, 18 February 2010, [57]; (c) whether the statement was promptly retracted and the admissions made in it consistently denied, particularly once legal advice had been obtained (Bandaletov v Ukraine, App. No. 23180/06, 31 October 2013, [67], in which the Fifth Section drew a contrast between the facts of that case in which ‘the applicant did not retract or change his initial statements at any point of the pre-trial investigation or the trial’ and Cimen v Turkey, App No. 19582/02, 3 February 2009, in which the applicant had repeatedly denied the contents of the incriminating statement made before he had access to legal advice); (d) the procedural safeguards applied during the criminal proceedings, in particular whether the accused was given the opportunity to challenge the authenticity of the evidence and of opposing its admission in evidence (Panovits, [82]; Zaichenko, [57]); and (e) the strength of the evidence in the case (Salduz, [57]; Zaichenko, [58]-[59]).

Fifth, the admission of statements made by the accused before he was afforded legal representation does not, in and of itself, give rise to a breach of Article 6, even in the absence of compelling reasons to restrict the right to legal representation. This proposition can be derived from the court’s holistic assessment of the fairness of the proceedings in Salduz at [57]-[62]. But (by analogy with the position where there is no good reason for the failure of a prosecution witness to attend trial), the lack of compelling reasons may ‘tip the balance’ in favour of a breach of Article 6: Schatschaschwili v Germany [GC], [113].

Sixth, Article 6 requires that a person who is being questioned by the police, but who comes to be suspected of having committed an offence, is informed of his right to a lawyer and of his right to silence and privilege against self-incrimination: Zaichenko, [52]; Schmidt-Laffer v Switzerland (App. No. 41269/08), 16 June 2015, [29] & [39].

Seventh, where a suspect has not been informed of these rights, the court must examine whether, notwithstanding the failure, the proceedings as a whole were fair: SchmidtLaffer, [36]-[40]. The analysis at [39] shows that the matters taken into account will include the importance of the statement made in relation to the other evidence in the case. (The judgment is available in French only; the statement in that case was only one element of the evidence and it was said to be of ‘faible importance’.)

Mr Abdurahman’s application to the Strasbourg Court was considered together with those of three other applicants: Messrs Ibrahim, Mohammed and Omar, three of the four would-be 21/7 bombers. It was considered in the first instance by the Court’s Fourth Section sitting as a Chamber composed of Judges Ziemele, Hirvelä, Nicolaou, Bianku, Kalaydjieva, Mahoney and Wojtyczek.

Having reviewed the law, the Court considered that the critical question in Mr Abdulrahman’s case, when establishing whether there had been a violation of Article 6, was whether he had suffered ‘undue prejudice’: [214].

At [215], the Court considered the general legislative framework and found it ‘significant that there was a clear legislative framework in place to govern the admissibility, in any criminal proceedings subsequently brought, of evidence obtained during police questioning’. This included the prohibition in s. 76 of PACE on admitting evidence that was obtained by oppression or was unreliable and the general discretion under s. 78 of PACE to exclude evidence. It was relevant that this legislative framework had been ‘carefully applied by the trial judge’.

The Court examined the quality of the evidence and the circumstances in which it was obtained at [216]. It considered it significant that the contents of the First Statement showed that the police interview had been directed at gathering evidence about others, which was

At [217], it was noted that the First Statement, although it became self-incriminating some time into the interview, also contained exculpatory statements, in particular those which emphasised Mr Abdurahman’s ignorance of Mr Osman’s involvement in the bombings. In any event, most of the factual elements of the account there given could be and were corroborated by surveillance records, mobile phone data and cell-site records and the evidence of Mr Osman himself. Moreover, although the First Statement contained evidence that he had helped Mr Osman by providing shelter and clothing, it did not mention that he had met Mr Sherif to collect the passport that had facilitated Mr Osman’s flight to the continent.

At [218], the Court made the point that Mr Abdurahman was not coerced. He was not forced to incriminate himself but was free to leave at any time. So, the concerns identified in the Court’s case law (in particular in the Salduz case) about potentially coercive conditions of police interrogation and detention did not arise. There was nothing to indicate that the First Statement was unreliable.

The Court at [219]-[220] placed heavy emphasis on the fact that the statement was not retracted or disavowed, whether promptly or at all. It said this:

At [222], the Court noted that there been a number of procedural opportunities at trial to ensure the fairness of the proceedings. Unlike in Panovits and Zaichenko, the judge had given detailed reasons for his conclusion that there would be no unfairness if the statement were admitted.

At [223], the Court said this:

The Court concluded at [224] that there was no violation of Article 6, looking at a number of factors cumulatively: in particular, Mr Abdurahman’s adoption of his statement after having received legal advice, the counterbalancing safeguards contained in the legislative framework and available at trial with a view to ensuring the fairness of the proceedings, including the trial judge’s ruling on admissibility, and the strength of the other prosecution evidence. Together, these factors meant that there was no undue prejudice caused to Mr Abdurahman’s right to a fair trial and therefore no violation of Article 6.

The Court also found that there had been no violation of Article 6 in the cases of Messrs Ibrahim, Mohammed and Omar.

Judge Kalaydjieva dissented. The greater part of her dissenting opinion is concerned with the cases of the first three applicants. So far as concerns Mr Abdurahman, she noted that, having found that Mr Abdurahman had been deliberately questioned without a proper caution against self-incrimination, the majority had considered it sufficient that this ‘did not give rise to undue prejudice to his defence rights’ and queried whether this approach was appropriate.

The case was referred to the Grand Chamber, composed as usual of 17 judges. Of these, only Judge Mahoney had been party to the Chamber decision. The Grand Chamber gave judgment on 13 September 2016.

At [228], it explained that some Council of Europe states automatically exclude statements obtained in the absence of a lawyer and without notification of the right to legal advice. In others, however, ‘the admission of the statement or the weight to be attributed to it is, at least to some extent, a matter for judicial discretion’.

At [250]-[251], the Grand Chamber noted that what constitutes a fair trial must depend on the circumstances of the individual case. At [252], it emphasised the importance of not diluting the content of the Convention rights in the face of the threat of terrorism but also accepted that a balancing exercise should be conducted between the individual’s rights and the interests of the public at large, subject to the condition that public interest concerns cannot justify measures which extinguish the very essence of the right to a fair trial. At [254], the Grand Chamber said this:

At [257], the Grand Chamber summarised the Salduz test for restricting access to legal advice:

At [258], the Grand Chamber identified the first question as ‘what constitutes compelling reasons for delaying access to legal advice’. In that regard, the existence of a basis in domestic law for doing so was relevant, but the reasons must be assessed on a case-bycase basis. At [259], it said this:

At [260]-[262], the Grand Chamber set out and rejected a submission made on behalf of the first three applicants that Salduz should be seen as laying down a ‘bright line rule’ that a lack of compelling reasons for restricting access to legal advice was sufficient to found a violation of Article 6. At [263], it went on to consider the effect of the absence of compelling reasons to the assessment of overall fairness. At [264]-[265], it said this:

The underlined passage represents an extension of the previous case law in this area. In Schatschaschwili, the Grand Chamber had noted (in the context of non-attendance of a witness) that the absence of good reasons for non-attendance was ‘a very important factor’ which ‘may tip the balance in favour of a finding of breach of Article 6’. In Ibrahim, the Grand Chamber fashioned a new presumption that, in the absence of compelling reasons for restricting access to legal advice, the admission of a statement made before the accused was afforded access to such advice gives rise to irretrievable prejudice. The presumption can be rebutted, but it is for the contracting state to ‘demonstrate convincingly’ why the conclusion of ‘irretrievable prejudice’ should not be drawn. If it cannot demonstrate that, there will be a violation of Article 6.

At [266]-[269], the Grand Chamber considered the privilege against self-incrimination. At [270]-[273], it considered the entitlement to notification of the right to a lawyer and the right to silence and privilege against self-incrimination. At [273], it said this:

Thus, the presumption of ‘irretrievable prejudice’ (established for the first time in [265] of the Grand Chamber’s judgment) becomes even more difficult to rebut in a case where the suspect has not been notified of his right to a lawyer and his right to silence and privilege against self-incrimination.

In considering the fairness of the proceedings as a whole, the Grand Chamber set out at [274] a non-exhaustive list of factors to be taken into account:

The Grand Chamber then moved on to apply these principles to the facts of the cases of the four applicants before it. In the case of the first three applicants, it found at [275][279] that the decision to restrict access to legal advice had been taken in accordance with a detailed statutory regime and in circumstances where the need to stop further terrorist attacks supplied ‘compelling reasons’ temporarily to deny access to legal advice. At [280]-[294], it found that, in the case of the first three applicants, the trial had been fair, placing reliance on the safeguards in ss. 76 and 78 of PACE (see [282]), the ability to challenge the statements before the jury (see [283]) and Court of Appeal (see [284]), the overwhelming evidence of guilt (see [285]-[291]), the trial judge’s detailed and careful summing-up (see [292]) and the strong public interest in the investigation and punishment of terrorist offences (see [293]). The Grand Chamber thus concluded at [294] that there had been no violation of the Article 6 rights of the first three applicants.

The structure of the Grand Chamber’s consideration of Mr Abdurahman’s case was as follows. At [298]-[300], the Grand Chamber considered whether there were ‘compelling reasons’ to justify restriction of Mr Abdurahman’s access to a lawyer. It noted at [299] that the decision to continue questioning him after he had become a suspect had the consequence that he was ‘misled as to his procedural rights’ and that the decision to continue questioning the applicant had been taken outside any legal framework and the reasons for it not recorded. It contrasted this with the decision to restrict the access of the first three applicants to a lawyer. At [300], it said this:

The Grand Chamber then noted at [301] that, in the absence of compelling reasons:

At [303], the Grand Chamber noted that, unlike in the case of the first three applicants, the decision to continue to question Mr Abdurahman once it had become clear he was a suspect ‘had no basis in domestic law and was contrary to the guidance given in the applicable code of practice’. This was a point that had already been made in reaching the conclusion that there were no ‘compelling reasons’ for restricting access to legal advice.

At [304], the Grand Chamber noted that the admissibility of the First Statement had been governed by ss. 76 and 78 of PACE and that the judge had conducted a voir dire in which he heard evidence from the police officers responsible for questioning Mr Abdurahman. The trial judge had also taken account of the fact that, once he had the benefit of legal advice, Mr Abdurahman freely adopted his First Statement and indeed based his defence on it. The Grand Chamber then said this:

It is important to understand, when reading this passage, that – at this stage of the analysis – the Grand Chamber had already decided that there were no compelling reasons for restricting Mr Abdurahman’s access to legal advice. As noted above, it had done so in large part because of the absence of evidence, or written reasons, from the senior police officer (see [299]). It was now considering the different question whether, despite the absence of such reasons, the trial was nonetheless fair. In considering that question, the same point – the absence of evidence, or written reasons, from the senior police officer – again appears to have been determinative, or at least highly significant.

The Grand Chamber returned to the point at [305]. It noted that Mr Abdurahman had been able to challenge the First Statement before the jury and that he was able to renew his argument that it should not have been admitted before the Court of Appeal. It recorded that the Court of Appeal had ‘carefully examined how the trial judge had approached the exercise of his discretion and concluded that he had been entitled to rule the evidence admissible’. The Grand Chamber then said this:

At [306], the Grand Chamber noted, accurately, that the trial judge had found that there had been no oppression of Mr Abdurahman at the police station; and that it was

The Grand Chamber then went on, at [307]-[308], to recite the other evidence on which the prosecution was based. At [309], however, it said this:

It can be seen from this passage that the conclusion that the First Statement had played ‘a central position’ in the prosecution case was based on an assessment of the extent to which it had led the police to discover other evidence, rather than on a comparative analysis of the probative value of the First Statement when compared with that of the other prosecution evidence.

At [310], the Grand Chamber noted that the trial judge had summarised Mr Abdurahman’s challenge to the First Statement and had instructed the jury to disregard it if they thought it might have been obtained by something said or done which was likely to render it unreliable. It continued:

The word ‘discretion’ is not obviously apt to describe the exercise of judgment which the jury had to undertake. But a comparison with the French text (where the equivalent word is ‘latitude’) suggests that what the Grand Chamber was saying was that it was, in Article 6 terms, wrong to leave to the jury the question whether to take the First Statement into account.

At [311], the Grand Chamber concluded as follows:

The Grand Chamber then went on to deal with Mr Abdurahman’s claim for just satisfaction under Article 41 of the Convention. Mr Abdurahman had claimed very substantial sums by way of pecuniary and non-pecuniary loss arising from the breach of his Article 6 rights (£1,196,750 pecuniary damages for past and future loss of earnings and £1 million for non-pecuniary damage): see [313]. As the UK Government pointed

So far as Mr Abdurahman’s case is concerned, 6 of the 17 members of the Court (Judges Hajiyev, Yudkivska, Lemmens, Mahoney, Silvis and O’Leary) would have found no violation of Article 6 in Mr Abdurahman’s case. They endorsed the Grand Chamber’s ‘clarification’ of the general principles to be applied when assessing whether any restriction of the right of access to a lawyer, but disagreed with the majority in relation to the application of those principles in Mr Abdurahman’s case. At §12, they expressed their disagreement with the majority’s conclusion that the Government had not shown ‘compelling reasons’ for restricting Mr Abdurahman’s access to legal advice. At §13, they said this:

At §14, the dissenters pointed out that the restriction on Mr Abdurahman’s access to a lawyer had been ‘temporary’. At §15, they said this:

At §19, the dissenters applied the factors set out at [274] of the Grand Chamber’s decision. It disagreed with the Grand Chamber’s findings on this aspect for two reasons: first, because there were indeed ‘compelling reasons’, the factors fell to be applied without the ‘very strict level of scrutiny which follows from the absence of such compelling reasons’ (see §21); second, because the application of the general factors must lead to a finding of no violation (§22). As the Court of Appeal had found, Mr Abdurahman was not particularly vulnerable; on the contrary, he was an intelligent young man (§24). Sections 76 and 78 of PACE supplied a clear legislative framework governing the admissibility of the First Statement, which had been applied by the trial judge (§§2526). Mr Abdurahman had gone to the police station voluntarily and could have left at any time; the irregularity in continuing to question him was not overlooked by the Court of Appeal, which concluded that his trial had been fair; and, in any event, while Mr Abdurahman was not informed of his rights, it would be wrong to say he had been ‘misled’ (§§27-30). The dissenters then said this at §§32-34:

At §35, the dissenters considered the importance in terms of probative value of the First Statement when compared with the other evidence in the proceedings. They said this:

Finally, at §36, the dissenters recorded their conclusion that the majority had given too little weight to the public interest in the investigation and punishment of terrorist offences. They said this:

Following receipt of the reference, the Registrar of Criminal Appeals granted a representation order to the solicitors now instructed on 12 February 2019 with a view to their identifying and instructing counsel to draft grounds of appeal within 28 days. We shall not burden this judgment with a detailed chronology of the ensuing correspondence between them and the Registrar. It is striking, however, that grounds of appeal were not provided until 17 November 2019. The explanation given, that further papers were required from the Crown Court, seems to us to be unsatisfactory. This was a case which had already been the subject of detailed judgments by the Chamber and Grand Chamber of the Strasbourg Court. Counsel instructed had appeared at trial, in the Court of Appeal and in the Strasbourg Court. The CCRC’s referral invited reconsideration of the conviction in the light of the judgment of the Grand Chamber. There was no proper justification for the delay.

Over 6 months before the grounds of appeal were lodged, the Registrar had directed that the CCRC’s reference should stand as the grounds of appeal. In any event, Mr King requires leave under s. 14(4B) of the Criminal Appeal Act 1995 to pursue any ground not related to a reason given by the CCRC for making the reference.

The grounds of appeal advanced by Mr King on behalf of Mr Abdurahman in writing, and amplified in his skeleton argument and in oral argument, may be summarised as follows. Whilst a judgment of the Strasbourg Court finding that Article 6 has been violated does not invariably lead to the quashing of a conviction, the circumstances in which it will not are ‘few and far between’, particularly where the judgment is that of ‘a substantial majority in the Grand Chamber’. Reliance is placed on R v Togher [2001] 1 Cr App R 33, [30] (Lord Woolf CJ); R (Anderson) v Secretary of State for the Home Department [2003] 1 AC 837, [18] (Lord Bingham); and R (Dowsett) v Criminal Cases Review Commission [2007] EWHC 1923 (Admin), [24] (Laws LJ).

Mr King submitted that two categories of case law have been identified in which domestic appellate courts have held that findings of a violation of Article 6 do not make the conviction unsafe: first, where the Strasbourg Court has been operating under a misapprehension as to domestic law or procedure; second, where the evidence against

As to the first, Mr King submitted that the Strasbourg Court had a very detailed appreciation of the procedural position in English law. In the case of the first three applicants, it placed emphasis on the statutory framework governing safety interviews. The contrast with the lack of any legal framework governing the decision taken in Mr Abdurahman’s case was striking. The Strasbourg Court was entitled to place emphasis on the lack of evidence, or written reasons, from the senior police officer who ordered that the questioning continue. The reasons were relevant to admissibility: R v Walsh

Mr King also sought to advance a separate complaint that the jury direction given by HHJ

So far as the other procedural safeguards are concerned, Mr King relied on R v Cadder [2010] 1 WLR 2601, [50] (Lord Hope) as authority for the proposition that procedural safeguards are incapable of removing the disadvantage suffered by an accused if a statement made before he has had access to legal advice is admitted against him.

Mr King relied on the reasoning of the majority of the Grand Chamber to submit that the First Statement should not have been admitted. In any event, the trial judge had fallen into error in saying that, in his Second Statement, he had ‘freely adopted’ the First. In fact, Mr King submitted, the Second Statement had in a crucial respect contradicted the First. Anyway, relying on R v McGovern (1991) 92 Cr App R 228, the unfairness in the process by which the First Statement had been taken tainted the Second Statement. It was also relevant that Mr Abdurahman had been questioned for almost 12 hours through the night.

As to the other evidence, Mr King accepted that there was a wealth of evidence showing that Mr Osman had stayed with Mr Abdurahman, but almost no evidence to contradict the case advanced in his Second Statement, and at trial, that he did not believe Mr Osman was one of the 21/7 bombers until he was stopped by the police. Apart from the First Statement, the only evidence of that was his fingerprints on the newspaper found at his flat, but those were not found on the pages containing Mr Osman’s photograph. In that regard, it was material that Mr Osman had not been recognised by the surveillance officers who tracked him to Waterloo Station. Although it is true that Mr Abdurahman’s co-accused, Mr Sherif, and Mr Osman both gave disputed evidence that Mr Abdurahman had collected Mr Osman’s passport from Mr Sherif, this was self-serving evidence which, in the case of Mr Osman, came from a convicted bomber.

Finally, Mr King relied on the Grand Chamber’s finding at [309] that the First Statement had ‘provided the police with the framework around which they subsequently built their case’. He submitted that the circumstances in which the First Statement had been taken tainted not only that statement itself but also the other evidence to which police had been led by its contents.

For the Crown, Mr Mably QC made five points. First, as a matter of principle, a finding of a violation of Article 6 by the Strasbourg Court or by a domestic court does not automatically lead to a conclusion that a conviction is unsafe. Second, whether a conviction is unsafe depends on the nature of the breach and the facts of the case. Third, in Mr Abdurahman’s case, the trial was not unfair having regard to the compelling reasons for continuing to interview Mr Abdurahman and the procedural safeguards applicable thereafter, to which the Grand Chamber failed to give sufficient weight. Fourth, the finding of the Grand Chamber that there had been a violation of Article 6 did not constitute or entail a finding that the conviction was unsafe or even that the First Statement should not have been admitted. Nor did it entail a finding that, in the light of the other evidence, the conviction could not be justified. The Strasbourg Court did not address the question whether the conviction was safe, leaving that to the national authorities (i.e. the CCRC and this Court). Fifth, even if the Grand Chamber’s judgment did compel the conclusion that the First Statement should not have been admitted, the other evidence in the case was overwhelming. It established the factual basis for the assistance given by Mr Abdurahman to Mr Osman, in most cases incontrovertibly. Those facts also gave rise to a very strong inference of a guilty state of mind. Finally, the evidence of Messrs Sherif and Osman was ‘devastating’ to Mr Abdurahman’s case. For all these reasons, the conviction was safe.

Mr Mably stopped short of submitting that we should depart from the conclusion of the Grand Chamber that there had been a violation of Article 6. He was, however, heavily critical of aspects of its judgment in respects we shall consider in more detail below. Those criticisms, he said, should inform our conclusion on the issue before us (the safety of the conviction), which was not the same as the issue before the Grand Chamber.

In R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2003] 2 AC 295, Lord Slynn said this at [26]:

In R (Anderson) v Secretary of State for the Home Department [2003] 1 AC 837, Lord Bingham at [18] cited the latter as authority for the proposition (which is not strictly to be found in it) that:

Lord Bingham returned to the issue in R (Ullah) v Special Adjudicator[2004] 2 AC 323, where at [20] he said, citing Lord Slynn’s observation in Alconbury, that:

In R v Horncastle [2010] 2 AC 373, the Supreme Court rejected the submission that it was bound to a clear statement of principle by the Strasbourg Court. At [11], Lord Phillips (giving the judgment of a 7-justice panel) said this:

In Cadder v HM Advocate [2010] 1 WLR 2601, the Supreme Court had to consider whether to overturn a Scottish conviction based in part on a statement made before he had been given access to legal advice. The occasion for the appeal was the decision of

In Manchester City Council v Pinnock [2011] 2 AC 104, however, the Supreme Court made clear that domestic courts are not bound even by decisions of the Grand Chamber. Lord Neuberger, giving the judgment of a panel of 9 justices, said this at [48]:

In R (Chester) v Secretary of State for Justice [2014] AC 271, Lord Mance (with whom Lord Kerr, Lord Hughes and Lord Hope agreed) differentiated between Chamber and Grand Chamber decisions. He said this at [27]:

Lord Mance soon attenuated that statement, however. In R (Kaiyam) v Secretary of State for Justice [2015] AC 1344, he and Lord Hughes (with whom Lord Neuberger, Lord Toulson and Lord Hodge agreed) said this at [21]:

In R (Hallam) v Secretary of State for Justice [2019] 2 WLR 440, this statement was expressly endorsed by Lord Mance (at [72]), with whom Lord Lloyd-Jones agreed (at [113]), and Lord Wilson (at [89]). It was implicitly applied by Lord Hughes (who, at [126], was prepared to re-assess from first principles an assumption made in a decision of the Grand Chamber based on a line of Strasbourg authority that was ‘constant’ but not ‘clear’).

In R v Togher [2001] Cr App R 33, the Court of Appeal had to consider whether, the effect on the safety of a conviction of a finding by a domestic court that a trial had been unfair for the purposes of Article 6. At [30], Lord Woolf CJ said this:

R v Dundon was a court-martial case where the judge advocate had been a serving military officer, a circumstance which the Strasbourg Court had held gave rise to a breach of the Article 6 requirement for an ‘independent and impartial tribunal’. The Court of Appeal (Rose LJ, V-P; Douglas Brown and Newman JJ) said this at [15]:

In Dowsett v Criminal Cases Review Commission [2007] EWHC 1923 (Admin), the Divisional Court heard a challenge to a decision of the CCRC not to refer a case to the Court of Appeal where the conviction had been held by the Strasbourg Court to give rise to a breach of Article 6. Mitting J (with whom Laws LJ agreed) concluded, on the basis of statements of Lord Slynn and Lord Clyde in R v Lambert [2002] 2 AC 545, that ‘not every breach of Article 6 will make a conviction unsafe. The nature of the breach and the facts of the case must in every case be analysed’: [16]. Laws LJ added this at [24]:

In the light of these authorities, the approach we have applied is as follows:

In our judgment, the ‘context’ relevant to the degree to which the Grand Chamber’s judgment constrains us here includes the following:

In the light of the foregoing analysis, these are our conclusions on the safety of the conviction.

The question for us is whether Mr Abdurahman’s conviction was ‘unsafe’, not whether the proceedings which led to it violated Article 6. We recognise, however, that the issues relevant to the former question overlap to a considerable extent with those relevant to the latter. In reaching our view on those issues, we have paid close attention to the conclusions reached by the Grand Chamber. We are not, however, bound to accept those conclusions.

We conclude, in agreement with the Fourth Section and the minority in the Grand Chamber, that there were indeed ‘compelling reasons’ for restricting access to legal advice. In this respect, we agree with the Court of Appeal’s observation in 2008 that ‘Abdurahman was providing information about Osman which could have been of critical importance in securing his arrest, which was the priority at that time’. That conclusion could properly be drawn from the evidence before the court (including that of the police officers who had interviewed Mr Abdurahman), despite the lack of direct evidence from the senior police officer who had given the instruction. It is difficult to conceive of more compelling reasons than the need to obtain information about the whereabouts of an individual who had already detonated a bomb capable of killing and maiming large numbers of people and who it was believed, for good reason, may be planning imminently to detonate more.

We are unable to attach any significance to the absence of evidence from the senior police officer for the reasons we have given in [111(c)] above. In the circumstances, and given that it was accepted that the breach of PACE Code C had been the result of a deliberate decision, we cannot see how the absence of evidence from the senior police officer could properly be regarded as contributing to the unfairness of the trial.

We turn now to consider the position if, contrary to our view, there were no ‘compelling reasons’ for restricting Mr Abdurahman’s access to legal advice. On the Strasbourg authority prior to the Grand Chamber’s decision in this case, we would not have applied any presumption, let alone a strong presumption, of irretrievable prejudice. This is because, as the Strasbourg authorities set out at [38]-[40] and [42] above make clear, the assessment of the fairness of the proceedings is a multifactorial and holistic one. The difficulty with a strong presumption of the kind applied by the Grand Chamber is that, once the conclusion is drawn that there are no ‘compelling reasons’ for restricting the right of access to legal advice, and irrespective of the degree of unfairness caused by the admission of the statement in question, the cards are stacked against the contracting state. The Grand Chamber’s strong presumption would apply in a case where the statement in question had been obtained by serious oppression in just the same way as it applies in this case, where there was no oppression. As the later parts of the Grand Chamber’s judgment shows, the application of such a strong presumption has the potential effectively to determine the outcome of a case and has the potential to undermine the multifactorial, holistic approach to overall fairness which the previous Strasbourg authorities have repeatedly espoused.

We do not, however, need to form a final view on the question whether a strong presumption of irretrievable prejudice should apply in a case where there are no compelling reasons for restricting access to legal advice. Even if (as the majority of the Grand Chamber thought) there were no such reasons, and a presumption of irretrievable prejudice applied, it would in our judgment clearly be rebutted on the facts of this case.

This case is very different from those in which statements have been obtained by coercion. In our judgment, it would be a misuse of language to say that Mr Abdurahman was under compulsion to say what he did. He agreed voluntarily to assist the police with their enquiries. He was free to leave whenever he wanted. Like the dissenters in the Grand Chamber, we also consider it a mischaracterisation to say that he had been ‘misled’ as to his procedural rights. HHJ Worsley found, after hearing evidence, that there had been no unequivocal representation given by those with the conduct of the investigation or prosecution of the case that Mr Abdurahman would not be prosecuted. The breach of PACE Code C consisted in an omission to caution and inform him of his right to legal advice at the point when it became clear that he was beginning to incriminate himself.

We also note the importance placed by the Strasbourg authorities on whether a statement admitted in evidence was ‘promptly retracted or modified’ (see factor (f) at [274] of the Grand Chamber’s judgment). Like the Fourth Section and the minority of the Grand Chamber, we place substantial weight on the fact that, after he had received legal advice, Mr Abdurahman not only did not retract his First Statement but: (i) in his Second Statement, affirmed the truth of its essential elements (albeit asserting that he had not believed Mr Osman to be involved with the 21/7 bombings); (ii) having done so, went on positively to rely on the First Statement as part of his defence at trial; and (iii) relied on it again before the Court of Appeal in support of his appeal against sentence (to demonstrate that he had assisted the police). Points (i) and (ii) were central to the decision of HHJ Worsley not to exclude the statement under ss. 76 or 78 of PACE. The voir dire he held also allowed for the examination of evidence as to the conditions in which the statement had been given, which enabled him to find that there had been no oppression and that Mr Abdurahman had not been expressly misled. Like the Court of Appeal in 2008, we can find no error of law or approach in his decision to admit the First Statement. For the reasons we have given, nothing in the reasoning of the majority of the Grand Chamber persuades us to the contrary. Having reached that finding, we agree with the Fourth Section and with the minority of the Grand Chamber that the regime created by ss. 76 and 78 of PACE constituted a substantial procedural safeguard, as did the supervisory jurisdiction of the Court of Appeal; and that these were material to the overall fairness of the proceedings.

Unlike the majority of the Grand Chamber, we would not place weight, at this stage of the analysis – i.e. once it is accepted that there were no compelling reasons for restricting access to legal advice – on the absence of evidence or written reasons from the senior police officer, both for the reason we have given at [115] above and because we do not see how that absence could be relevant to the question whether, in the absence of compelling reasons for restricting access to legal advice, the trial was nonetheless fair.

We do, however, place considerable weight on the other evidence in the case. It is true that some of this was discovered by following leads generated by the contents of the First Statement. But that would not make it inadmissible in English law. Nor, once admitted, would it give rise to a violation of Article 6, applying the ‘clear and constant’ jurisprudence of the Strasbourg Court prior to the judgment of the Grand Chamber in this case (as to which see [111(d)] above). If and to the extent that the Grand Chamber’s decision suggests the contrary, its finding would represent a significant extension the ‘fruits of the poisonous tree’ doctrine, which – for the reasons set out by the Supreme Court in HM Advocate v P – would be unwarranted and undesirable.

When examining the safety of the conviction, the correct approach, in our view, is to examine the other evidence and to assess its probative value when viewed independently of the First Statement. As to that, there is very little we can add to the analyses of the Court of Appeal in 2008, the Fourth Section and the minority of the Grand Chamber. In addition to the Second Statement (in which Mr Abdurahman affirmed the essential elements of the First Statement), there was CCTV footage of him together with Mr Osman and (on another occasion) with Mr Mohammed, fingerprint evidence, telephone records showing that he had contacted Mr Sherif, cell site analysis consistent with Mr Osman having made calls from his flat and with Mr Abdurahman having met Mr Sherif to collect the passport used by Mr Osman, oral testimony of Mr Sherif that Mr Abdurahman had asked him for and obtained from him that passport and the oral evidence of Mr Osman (by then convicted) to the same effect.

We do not accept Mr King’s characterisation of this evidence as going only or mainly to the fact of Mr Abdurahman’s association with Mr Osman, rather than to the former’s knowledge of the latter’s involvement in the 21/7 bombings. That is, in our view, to leave out of account the inferences that could be drawn from the other evidence. Mr Abdurahman had not mentioned his involvement in the transfer of Mr Osman’s passport in the First Statement. The evidence about it came entirely from other sources. But that evidence, taken with the fingerprint, the telephone records and the cell site analysis formed the foundation for an inference that he knew why Mr Osman was seeking to flee abroad. We agree with Mr Mably that, looking at the matter in the round, the inference was irresistible. Then, there is the evidence of Messrs Sherif and Osman. That evidence, which supported the prosecution case against Mr Abdurahman, was indeed ‘devastating’, as Mr Mably submitted, if the jury accepted it as true. If it were necessary for us to do so, we would conclude that, leaving aside the First Statement, the evidence in this case was overwhelming.

Given the basis of the CCRC’s reference, we have sought to analyse the safety of the conviction through the lens of Article 6 of the Convention, taking into account the reasoning of the Grand Chamber and indicating the extent to which we are, and are not, constrained by that reasoning. However, even on the assumption that the Grand Chamber was correct that the fairness of the trial was ‘irretrievably prejudiced’, the conclusion we have recorded at [123] above would in our judgment be sufficient to compel the dismissal of this appeal. That is because, as Mr Mably submitted, the Grand Chamber itself recognised, at [315], that its conclusion on fairness did not entail that Mr Abdurahman was wrongly convicted. Moreover, it is clear on the domestic authorities (especially Lambert and Dundon) that a conviction may be regarded as safe where the evidence against the appellant is overwhelming, even though the trial has been unfair for the purposes of Article 6.

Finally, it is necessary to address Mr King’s complaints about the directions given by HHJ Worsley to the jury about the First Statement. As we have said, Mr King complained both that the direction did not conform to the standard direction in cases of disputed confessions and that the standard direction was itself deficient. We can deal with these points briefly. First, these complaints do not fall within the scope of the CCRC’s reference, so leave would be required to advance them. Second, both of these criticisms could and should have been advanced before the Court of Appeal in 2008. That is a sufficient reason to refuse leave. Third, and in any event, although the direction given did not match precisely the standard direction now to be found in the Crown Court Compendium, that fact alone provides no proper basis for impugning the fairness of the direction when given, in 2007. The effect of the direction (set out in full at [27] above) was that the jury should ‘take into account’ the statement if and only if they were sure that: (i) despite the breaches of the Code, the statement was freely given in the sense that he would have said those things whether or not he was cautioned and even if all the rules in the code had been followed; and (ii) it was true. We can discern no error or unfairness in that. Fourth, Mr King’s suggestion that the jury should also have been directed not to convict ‘wholly or mainly’ on the basis of the First Statement (by analogy with the directions given in relation to bar character and silence) was wholly unsupported by authority and, in our view, wrong. The regime created by ss. 76 and 78 constitutes a substantial safeguard against the admission of unreliable evidence. The direction given by the judge was a further safeguard, ensuring that the jury directed their mind to the reliability and truth of the First Statement. If (and only if) they were sure of those things, what they drew from the statement was a matter for them.

For all these reasons, we conclude that Mr Abdurahman’s conviction was not unsafe. The appeal is therefore dismissed.