17 September 2010
FOURTH SECTION
Application no. 40351/09
by Ismail ABDURAHMAN
against the United Kingdom
lodged on 29 July 2009
STATEMENT OF FACTS
THE FACTS
1. The applicant, Mr Ismail Abdurahman, is British national who was born in Somalia in 1982. He is currently detained at HMP Lowdham Grange. He is represented before the Court by Mr J. King and Ms A. Faul, counsel.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. On 7 July 2005, four suicide bombs exploded on three trains and one bus in central London, killing fifty-seven people. Two weeks later, on 21 July 2005, four men, Muktar Ibhrahim, Hussain Osman, Yassin Omar and Ramzi Mohamed, attempted to detonate four bombs at separate points on the London public transport system. Although the four devices were detonated, in each case the main charge failed to explode. The men fled the scene of each incident. Omar was arrested in Birmingham on 27 July 2005; Mohamed and Ibrahim in London on 29 July 2005. Osman was arrested in Rome on 29 July having travelled there via Paris. On 9 July 2007, the four men were convicted of conspiracy to murder.
4. The applicant in this case was charged and convicted of one charge of assisting Osman and four charges of failing to disclose information after the event. The background to those charges is as follows.
5. At the time of the attempted bombings, the present applicant was living in south-east London. He was friends with Osman, having been introduced to him by Osman's brother, Abdul Sherif. The applicant met Osman at Clapham Junction Station on 23 July 2005. Osman asked if he could have accommodation. The applicant took him to his home where Osman stayed until the morning of 26 July.
6. At the applicant's trial (see paragraphs 13–17 below), the prosecution case was that the applicant was prepared to give Osman shelter even though he knew that Osman had been involved as a bomber, at the very least from having been told by Osman that one of the CCTV images shown on television was an image of him, and from a newspaper picture of Osman found at his home and on which the applicant's finger prints were found. The prosecution also alleged that the applicant had collected Abdul Sherif's passport from Abdul Sherif and given it to Osman. He had also collected a video camera which had been used to film suicide messages by the would-be bombers and given it to Osman. On the morning of 26 July, the applicant had accompanied Osman to the bus stop from where Osman caught a bus to Waterloo station. Osman then travelled from Waterloo to Paris. Osman subsequently spoke to the applicant twice by mobile phone on 26 July and twice attempted to telephone him on 27 July from Italy.
7. After the attempted bombings, the applicant's home was placed under surveillance. At around 5.30 p.m. on 27 July, the applicant was returning home from work. He was approached by two police officers, DC Stewart and DC Vernon, who took him to Kennington Police Station.
8. At the voir dire at the applicant's trial (see paragraph 14 below), DC Stewart and DC Vernon accepted that, when they first approached the applicant, it was with a view to his assisting the police as a potential witness. They began interviewing him at 6.15 p.m. By 7 p.m. the police officers considered that, as a result of the answers he was giving, the applicant was in danger of incriminating himself and should be cautioned. They accordingly sought instructions from one of the senior officers in charge of the investigation. They were told that they should continue to interview the applicant as if he were a witness.
9. Between 1.30 a.m. and 5 a.m. on 28 July, a witness statement was taken from the applicant in which he recounted how he had become friends with Osman around 2000 and had lost contact with him the following year. He stated that, on 23 July 2005, Osman had come running up to him at Clapham Junction, he and Osman had boarded the same train to Vauxhall and then travelled together to the applicant's home. Later that day, the men were watching the evening news on television, which carried a report of the attempted bombings and showed photographs of the men sought by the police. The applicant stated that Osman had pointed at the screen and said “that's me” but the applicant had not believed him. Then Osman began to discuss the justification for the attacks and the applicant feared for his own safety. For this reason, he had acceded to Osman's request to stay with him for two nights.
The witness statement also recorded that Osman had shown the applicant an injury to his thigh, which Osman said he had received while escaping after his bomb had failed to explode. Osman had shown the applicant photographs of the other bombers which appeared in a national newspaper and told the applicant their names. He had also given the applicant the details of a fifth bomber who had thrown away his bomb without detonating it. Osman told the applicant how the bombers had prepared their bombs and gave him details of videos the group had recorded prior to the bombings, in which they explained their actions.
In the witness statement the applicant also explained that, once Osman had left him on the morning of 26 July, he had switched off his mobile phone so that Osman could not contact him any further. The applicant concluded his 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 Osman; he had only let him stay with him because he was afraid.
10. After the witness statement had been signed by the applicant, DC Stewart telephoned his superiors to seek further advice and was told to arrest the applicant. The applicant was then arrested and cautioned.
11. On 30 July 2005 the applicant was interviewed in the presence of his solicitor. He made no comment to almost all the questions which he was asked and read a prepared statement in which he stated that he had no prior knowledge of the events of 21 July and deplored them. In that prepared statement he also corrected two elements in his earlier witness statement relating to the physical description he had given of Osman. He emphasised that the CCTV image of Osman shown on television was unrecognisable and, when Osman had claimed to have participated in the attempted bombings, he had not believed him.
On 1 August 2005 the applicant was interviewed a second time. He again declined to answer questions but insisted that he had been assisting the police from the beginning and did not wish to make any further statements. He was interviewed further on 2 August and repeated that he was not and never would be a terrorist and had not played any part in what had happened. In his last interview, on 3 August, he said that everything he knew was contained in his original witness statement. The applicant was charged at 2.20 p.m. on 3 August 2005.
12. The applicant was tried with four other men, including Abdul Sherif. The men were accused of assisting the attempted bombers and failing to disclose information prior to or after the bombings.
13. At the trial, the applicant applied to have the witness statement excluded either on the basis that it was a confession made by him in circumstances likely to render any confession unreliable pursuant to section 76(2) of the Police and Criminal Evidence Act 1984, or in the exercise of the court's discretion under section 78 of the same Act (see paragraphs 20‑23 below). The applicant submitted that he had been induced to make a statement on the basis that he would be a witness, and would be allowed to go home after the interview was completed. This was compounded by the fact that the interview continued into the early hours of the morning when he must have been tired.
The prosecution opposed that application but accepted that the witness statement amounted to a confession for the purposes of section 76 of PACE. The prosecution also accepted that there had been a breach of the relevant Code of Practice in failing to caution the applicant or offer him the services of a solicitor when DC Vernon and DC Stewart came to the conclusion that they should take instructions from their superiors.
14. At the voir dire, DC Vernon and DC Stewart gave evidence that, when they first approached the applicant on the afternoon of 27 July, it was with a view to his assisting the police as a potential witness. It was also accepted by the applicant that, at that stage, the police officers had no sufficient information to justify arresting him, or treating him as a suspect. In his evidence DC Vernon expressed surprise that, when the witness statement had been completed at 5 a.m. on 28 July, he and DC Stewart were instructed to arrest the applicant.
15. The trial judge refused the applicant's application to have the witness statement excluded. He concluded that, so far as section 76 of the 1984 Act was concerned, he was satisfied that nothing was said or done by the police officers which could have rendered the witness statement unreliable. He accepted that the course that the police adopted at that stage was essentially driven by the fact that they believed that at least three of the bombers were still at large and could be motivated to try further attacks. The trial judge found that the prepared statement which the applicant read out during his interview indicated that nothing was said or done by the police which would undermine the reliability of the applicant's confession in the earlier witness statement. The trial judge also refused to exclude the witness statement under section 78 of the 1984 Act, on the basis that, in the subsequent interviews (which were perfectly conducted) the applicant adopted, subject to certain details, the contents of the witness statement as his defence. An application to have excluded those parts of the witness statement which the applicant withdrew or qualified in his subsequent interviews was also rejected; the trial judge found this would be unrealistic and misleading to the jury.
16. Just before the prosecution closed its case, the applicant made an application to have the proceedings stayed on the grounds that the prosecution was an abuse of process. The applicant argued that the order given to DC Vernon and DC Stewart to continue to treat him as a witness and not a suspect meant he had been tricked into giving his witness statement; for the applicant later to be treated as a suspect and prosecuted was inherently unfair. The trial judge rejected that submission. It would only be an abuse of process to prosecute someone who first, had received an unequivocal representation that he would not be prosecuted and, second, had acted on that representation to his detriment. No such unequivocal representation had been made to the applicant. Even if the applicant thought there had been such a representation, he had not acted on it to his detriment. The evidence had to be looked at as a whole; once cautioned and provided with legal advice the applicant had the opportunity to say that the witness statement was untrue, inaccurate or given at a time when he was so tired that it was unreliable. Instead, throughout the proceedings he had effectively adopted that witness statement.
17. The applicant did not give evidence at trial. Osman was called to give evidence by Abdul Sherif. During cross-examination Osman confirmed the account given by the applicant in his witness statement. On 21 February 2008, the applicant was convicted of the five charges against him and sentenced to a total of ten years' imprisonment. Four of the applicant's co-accused, including Abdul Sherif, were also convicted.
18. The applicant appealed against his conviction and sentence to the Court of Appeal. On 21 November 2008, the Court of Appeal dismissed the appeal against conviction. It stated:
“The way the police behaved is undoubtedly troubling. The decision not to arrest and caution [the applicant] when the officers interviewing him believed that they had material which gave them reasonable grounds for suspecting that he had committed an offence was a clear and deliberate instruction to ignore the Code. But at that stage the police dilemma is understandable. [The applicant] was providing information about Osman which could have been of critical importance in securing his arrest, which was the priority at that time. It seems to us that the judge was entitled to come to the conclusion that the prosecution had established that nothing was said or done which could undermine the reliability of the witness statement. He was entitled to take into account the fact that in the prepared statement he made after caution he asserted that he was seeking to give assistance to the police. That was repeated in the later interviews. He said nothing therefore to suggest that the circumstances were such as to render it likely that what he said was not reliable. It seems to us, therefore, that the judge was also entitled to conclude from all material that [the applicant] with the help of legal advice, was repeating, subject as we have said to some corrections, what was in the witness statement as his account of the part such as it was, that he played in relation to Osman in the days after 21st July. Further given the appellant's adoption of that witness statement, we do not consider that the judge's decision to permit the statement to go before the jury in the exercise of his discretion under s. 78 of the Act can be said to be perverse or affected by any error of law.
That leaves the argument that the judge was wrong to refuse to stay the proceedings as an abuse of process. The main thrust of the argument on [the applicant's] behalf is that to prosecute on the basis of a statement that he gave when being treated as a witness is quite simply unfair. He was, it is said, effectively being told that he would not be prosecuted and gave assistance accordingly. The judge in our view rightly rejected this argument. There was no evidence that this appellant made his statement because he believed he was not going to be prosecuted. He gave no evidence to that effect; and there is nothing in the interviews after he was arrested to suggest that that was the reason for his having made the witness statement. On the contrary, he made the witness statement because he wanted to assist the police. In this type of case, the court is only likely to conclude there has been an abuse of process if a defendant can establish that there has been an unequivocal representation by those responsible for the conduct of the prosecution and that the defendant has acted to his detriment: see R v Abu Hamza [2007] 1 Cr App R 27, [2006] EWCA Crim 2918, in particular at paragraph 54. That was not the situation here.”
19. The Court of Appeal partly allowed the applicant's appeal against sentence and reduced the total sentence to one of eight years' imprisonment. On 3 February 2009, it refused to certify a question of general public importance for the consideration of the House of Lords.
B. Relevant domestic law and practice
1. The Police and Criminal Evidence Act 1984 (PACE)
a. The right to legal advice
20. Section 58(1) of the Act provides that a person arrested and held in custody in a police station or other premises shall be entitled, if he so requests, to consult a solicitor privately at any time. Section 58(6) provides that delay in compliance with a request for legal advice is only permitted in the case of a person who is in police detention for an indictable offence and if an officer of at least the rank of superintendent authorises it. The grounds for authorising such delay are set out in section 58(8) and (8A). These include when the officer has reasonable grounds for believing that the exercise of the right to legal advice: (i) will lead to interference with or harm to evidence connected with an indictable offence or interference with or physical injury to other persons; or (ii) will lead to the alerting of other persons suspected of having committed such an offence but not yet arrested for it.
b. Confessions
21. Section 76 of the Act provides:
"(1) In any proceedings a confession made by an accused person may be given in evidence against him in so far as it is relevant to any matter in issue in the proceedings and is not excluded by the court in pursuance of this section;
(2) If, in any proceedings where the prosecution proposes to give in evidence a confession made by an accused person, it is represented to the court that the confession was or may have been obtained
by oppression of the person who made it; or
in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in consequence thereof
the court shall not allow the confession to be given in evidence against him except in so far as the prosecution proves to the court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained as aforesaid.”
22. Under section 82 (1) of the Act a “confession” includes any statement “wholly or partly adverse to the person who made it, whether made to a person in authority or not and whether made in words or otherwise”.
23. Section 78 of the Act provides:
“In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given, if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it."
2. The PACE Code of Practice: cautions
24. Section 66 of the Act requires the Secretary of State to issue codes of practice, inter alia on the detention, treatment and questioning of persons by police officers. Those matters are regulated by Code C. Paragraph 10 of Code C regulates cautions and paragraph 10.1 provides:
“A person whom there are grounds to suspect of an offence must be cautioned before any questions about an offence, or further questions if the answers provide the grounds for suspicion, are put to them if either the suspect's answers or silence, (i.e. failure or refusal to answer or answer satisfactorily) may be given in evidence to a court in a prosecution.”
The wording of the normal caution is set out in paragraph 10.5, as follows:
“You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in Court. Anything you do say may be given in evidence.”
COMPLAINT
Relying on Article 6 of the Convention the applicant complains that his trial was unfair. First, he complains that he was not cautioned when it became clear to the police that he was a suspect. Second, he complains he was denied the right to legal advice when he became a suspect.
QUESTION TO THE PARTIES
Has there been a violation of Article 6 § 1 taken with Article 6 § 3 of the Convention arising from:
(a) the failure to caution the applicant before he gave his witness statement (Aleksandr Zaichenko v. Russia, no. 39660/02, 18 February 2010); and/or
(b) the failure to provide him with legal assistance before he gave the witness statement? In particular, were the rights of the defence irretrievably prejudiced by the use of the witness statement at trial (Salduz v. Turkey [GC], no. 36391/02, § 55, 27 November 2008)?
Full & Egal Universal Law Academy