In R. v Abdurahman [2019] EWCA Crim 2239, the Court of Appeal (Criminal Division) (CA(CD)) robustly, yet politely, rejected the view of the ECtHR’s Grand Chamber that the appellant had, in breach of Art.6.1 of the ECHR, not received a fair Crown Court trial. It also rejected their view that his Art.6.3(c) right of access to a lawyer had been breached. The case is of considerable significance, since it demonstrates how the Strasbourg judges may wholly misunderstand the most basic elements of English criminal procedure, as well as extending their powers of fair trial review into matters that are, in truth, none of their business. It also casts the gravest of doubt on the English jurisprudence that treats the duty of our courts under s.2(1)(a) of the Human Rights Act 1998 as according presumptive authority, as a matter of domestic law, upon an ECtHR ruling about some ECHR right

Four bombs had been detonated in London on 21 July 2005, though, fortunately, none had exploded, so no death or injury had resulted. The suspected bombers, including one Osman, had initially evaded police apprehension. Suspecting that Abdurahman might be harbouring Osman, the police approached him, and he agreed to accompany them to a police station. At that stage, he was believed to be and was treated as a potential witness, not a suspect. Therefore, he was not arrested, cautioned or informed of a right to legal advice. But, as a result of answers given during initial questioning, the police came to suspect that he himself was guilty of crime. In consequence, they concluded that he should be accorded the procedural rights of a suspect. They informed a senior police officer, who instructed them not to do so, but to continue to question him as a witness. However, neither that decision, nor the reasons for it were recorded, and the senior officer did not testify at trial. Abdurahman remained in that status for about another ten hours, during which period he provided a great deal of information that either directly incriminated him or led the police to discover other evidence implicating him in the criminal assistance of a terrorist. This chapter of events concluded with him signing a statement that the police had prepared.

Abdurahman was then arrested and accorded full procedural rights. After initially turning down a lawyer, he later took legal advice. Though he refused to answer further questions, it proved of later significance to the CA(CD) that, in a second statement, he made only minor corrections to the first, though he did add some exculpatory words of clarification. He was charged with offences of assisting an offender and failing to give information about acts of terrorism.

The course of the case, after that, was an extremely tortuous one. Abdurahman was initially convicted of the offences charged, but appealed to the CA(CD). That appeal was largely based upon the proposition that some of the evidence adduced against him should have been excluded under either s.76 or s.78 of the Police and Criminal Evidence Act 1984, though he also argued that the prosecution should have been stayed as an abuse of process. Both grounds of appeal were rejected.

Next, his case was taken to Strasbourg, along with those of three others convicted of terrorism offences arising from the events of 21 July 2005. There followed two stages in the ECtHR. First, in Ibrahim and others v United Kingdom [2014] ECHR1392; (2015) 61 E.H.R.R. 9 at [224], the Fourth Section ruled, by six votes to one, that none of the applicants’ Art.6.1 fair trial rights had been breached. By the same majority, it ruled (at [203]) that none of them had had their Art.6.3(c) right of access to a lawyer breached. However, when the case proceeded to the Grand Chamber (see [2016] ECHR 1392; (2016) 61 E.H.R.R. 9), though the Fourth Section’s decisions as regards the other three applicants were upheld (at [279]), those as regards Abdurahman were, by eleven votes to six, overturned (at [300] and [311]). In consequence, though it refused to award damages to him, pointing out (at [315]) that it did not follow from the finding that his Art.6 rights had been breached that he had been wrongly convicted, it did award him costs.

Unsurprisingly, issues as regards Abdurahman’s convictions came back to the United Kingdom. In short, as in effect raised by the Grand Chamber, if his trial had been unfair, were those convictions safe? Therefore, the Criminal Cases Review Commission referred his case back to the CA(CD).

That court dismissed the further appeal, giving three distinct reasons. First, the Art.6.3(c) right to a lawyer had not been breached (see [2019] EWCA Crim 2239 at [114]). Secondly, even if there had been such a breach, it had not led to the trial being unfair (at [116]-[121], but especially at [117]). Thirdly, in what may, in practical terms at least, be its most important holding, it held (at [122]-[124]) that, even if the trial had been Art.6.1 unfair, it had not resulted in unsafe convictions.

Before we get to the extremely important ECHR aspect of the case, it is well worth reflecting on the straightforward domestic law applicable. Here, Abdurahman’s case was that, because Code C (on questioning suspects) under the 1984 Act had been breached, both the first statement and certain other evidential material that had come from him after being accorded his procedural rights should have been excluded under either s.76 or s.78 of that Act. It was a hopeless case under s.76, as the CA(CD), first time around, in effect found. Abdurahman had willingly attended at the police station and answered questions, while his general attitude seemed clearly to be one of sympathetic helpfulness to the police. So, there was nothing in what had happened that, even faintly, smacked of oppression (under s.76(2)(a)), or anything said or done by the police that was likely to render unreliable what he had said to them (under s.76(2)(b)). (It is worth adding, here, that though nothing said by Abdurahman appeared to be “confessional”, in the sense that he had intended to incriminate himself thereby, the prosecution accepted that his signed first statement constituted a confession for s.76 purposes.)

Therefore, everything turned on whether or not the evidence should have been excluded under the s.78 discretion. Here again, Abdurahman was assisted by a prosecution concession, namely that there had been a breach of his procedural rights, and, in particular, that to legal advice. However, dismissing the first appeal, the CA(CD) stressed (at [38], as reported in the second appeal at [32]) that the police dilemma was understandable. They wanted information from him that might allow them to secure Osman’s arrest. That, as well as other factors, entailed that the judge’s exercise of discretion was not an unreasonable one.

Let us now turn to the ECHR dimension. First, it must be said that the way in which Art.6(3)(c) has been interpreted by the ECtHR will strike some of those that attend to the actual words used in legal provisions as strange. It grants to a person “charged with a criminal offence” a right “to defend himself in person or through legal assistance of his own choosing”. Well, Abdurahman had not been charged at the time in question, but was merely a suspect. The Strasbourg response to that point is that the ECHR is a “living instrument” that must be given an “evolutive” interpretation. Therefore, he had been subject to a “criminal charge” under the “autonomous meaning” of Art.6. Some might respond that, rather like quasi-contract and oblique intention, the qualifying word “autonomous” is simply equivalent to “not”. And the devoted literalist might, more strongly yet, argue that the second phrase, in particular the words “defend himself” plainly refers to a right to legal assistance at trial, and not at the police station. However, the pass on that argument has been sold not only in the ECtHR (see Salduz v Turkey [2008] ECHR 1542; (2009) 49 E.H.R.R. 19), but also in the United Kingdom (see Cadder v H.M. Advocate [2010] UKSC 43; [2010] 1 W.L.R. 2601 and Ambrose v Harris [2011] UKSC 43; [2011] 1 W.L.R. 2435)

At all events, it is clearly established in ECtHR jurisprudence that access to a lawyer may be restricted where “there are compelling reasons” for doing so (see, in particular, Salduz v Turkey (2009) 49 E.H.R.R. 19 at [55]). But, the Grand Chamber held ((2016) 61 E.H.R.R. 9 at [300]), the Government had failed to demonstrate the existence of such compelling reasons. In doing so, it understandably dismissed (at [259]) an argument that the general risk of lawyers leaking information that might frustrate the search for the culprits should be taken into account. As to the more general point, that someone benefiting from legal advice might be less helpful in aiding that search, it stressed (at [299]) that there was nothing on the record to indicate that that had been the senior officer’s reason for his ruling.

So, had the Art.6.3(c) breach led to an unfair trial? The Grand Chamber, here unanimously, started by stating that, in case of such breach, the court must apply very strict scrutiny to its fairness assessment, such that:

“the onus will 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 irretrievably prejudiced by the restriction on access to legal advice” (at [265]).

This it had failed to do.

As to that failure, four points of significance emerge from the judgment. First, it was again emphasized (at [304] and [306]) that nothing in the record justified the restriction. Secondly, it was not to the point that, having consulted a lawyer, Abdurahman had adopted his earlier statement (see at [304] and [306]). Thirdly, the prosecution had relied on a great deal of evidence other than that from Abdurahman’s mouth, in fact thirteen other items (see [2019] EWCA Crim 2239 at [19]), some of which had been obtained as a result of what he had told them. According to the Grand Chamber, the significance of that other evidence must be discounted, since:

“[his] statement {had] provided the police with the framework around which they subsequently built their case and the focus for their search for other corroborating evidence” (at [309]).

Finally, the trial judge had instructed the jury that they might properly take account of the content of Abdurahman’s initial statement if they were satisfied that it had been freely given, that he would have said these things even had the correct procedure been used, and that the statement was true. According to the Grand Chamber (at [310]), those directions:

“left the jury with excessive discretion as to the manner in which the statement, and its probative value, were to be taken into account …”

The CA(CD) hearing the second appeal clearly had to attend to the considerable local jurisprudence as to what account is to be taken of ECtHR decisions, and, in particular, Grand Chamber decisions, in determining if some ECHR provision has been breached as a matter of English law. By s.2 of the Human Rights Act 1998, an English court must “take into account” such decisions, if relevant to the proceedings at hand. This is not the place for detailed discussion of the English jurisprudence about what that duty entails (dealt with in detail in Abdurahman [2019] EWCA Crim 2239 at [98]-[106]). What is absolutely clear is that, though ECtHR decisions, even those of the Grand Chamber, are not binding, there is what might be called a presumption that any “clear and constant jurisprudence” of the ECtHR will be followed (R. (Ullah) v Special Adjudicator [2004] UKHL 26; [2004] A.C. 323 at [20], per Lord Bingham). Moreover, a court should not “without good reason depart from the principles laid down in a carefully considered judgment of the court sitting as a Grand Chamber” (R. (Anderson) v Secretary of State for the Home Department [2002] UKHL 46; [2003] 1 A.C. 837 at [18], also per Lord Bingham). However, in R. v Horncastle [2009] UKSC 14; [2010] 2 A.C. 373, where the Supreme Court refused to follow an ECtHR section decision, Lord Phillips pointed out (at [11]) that:

“There will … be rare occasions where the domestic court has concerns as to whether a decision of the Strasbourg Court sufficiently appreciates or accommodates particular aspects of our domestic process.”

We shall see that this particular comment had real significance as regards the CA(CD) decision in Abdurahman.

The court in Abdurahman decided not to follow the Grand Chamber on both the Art.6.3(c) and the Art.6.1 point. First, it rejected the Chamber’s view that there were no compelling reasons for restricting access. That was a “factual finding” that was not part of any “clear and constant jurisprudence” of the ECtHR ([2019] EWCA Crim 2239 at [111(a)]). Moreover, both a majority of the Fourth Section and a substantial minority of the Grand Chamber had disagreed (also at [111(a)]). And, indeed, there were such compelling reasons:

“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” (at [114]).

For these purposes, there was sufficient evidence to establish the element of necessity, it mattering not that there had been no testimony from the senior officer. In short, the Chamber had misunderstood an aspect of domestic procedure, and its application to the facts (at [111(c)]).

When it dealt with the fair trial point, the court had, of course, to assume the absence of compelling reasons. But it refused to accept that there then arose a strong presumption of irretrievable prejudice. In its words (at [111(b)]), “[t]his presumption was an artefact of the Grand Chamber’s decision in this case”, so did not flow from any clear and constant jurisprudence.

The court’s strongest criticism was reserved for the Grand Chamber’s reasoning as to why the (alleged) irretrievable presumption had not been rebutted. First, it was indeed significant that Abdurahman had not retracted his first statement, but even more significant that, in his second statement, he had, with benefit of legal advice, affirmed the truth of its essential elements, as well as that he had positively relied upon it both at trial and on appeal against sentence ([2019] EWCA Crim 2239 at [119]). Secondly, the Grand Chamber had, in effect, applied a “fruit of the poisonous tree” doctrine to the evidence acquired as a result of what he had told the police. No such doctrine is recognised in English law (see the 1984 Act, s.76(4)(a) and, in the ECHR context, H.M. Advocate v P [2011] UKSC 44; [2011] 1 W.L.R. 2497), nor indeed, said the court, is it part of Strasbourg jurisprudence (citing Gäfgen v Germany [2010] ECHR 759; (2011) 52 E.H.R.R. 1 at [165]. Therefore, considerable weight could properly be placed on that evidence, both with regard to the fair trial issue and with regard to the conviction safety one. Thirdly, the view that the trial judge’s remarks to the jury about possible use of Abdurahman’s initial statement left the jury with “excessive discretion” was politely rebuffed. As the court put it (at [111(e)), there was “force” in the view of the dissenters in the Grand Chamber itself that this was at odds with the role of the jury in common law criminal justice systems. For all of these reasons, the court robustly held ([2019] EWCA Crim 2239 at [117]) that, even if the irretrievable presumption did apply, it would clearly have been rebutted.

This may not be the end of the story, since a possibility is that the case will go to the Supreme Court. The strong sense that one is left with is that something is going seriously wrong in the ECtHR. Is it really its business to fashion a pan-European law of confessions? Is it not worrying that, in assessing trial fairness, the majority of the Grand Chamber judges seemed to be utterly oblivious to several features shared by common law systems? Of course, that is not to say that common lawyers may not fall into equivalent mindset traps, but it might encourage the United Kingdom’s apex court to moderate its view of what significance United Kingdom courts should properly attribute to ECtHR decisions. And, after all, the ECHR is, for good or ill, part of the law here, and our sovereign Parliament has said no more than that those decisions should be taken into account.

Peter Mirfield, Professor Emeritus of the Law of Evidence, Jesus College