ALI AND OTHERS v. THE UNITED KINGDOM

FOURTH SECTION

DECISION

Application no. 30971/12
Abdulla Ahmed ALI and others
against the United Kingdom

The European Court of Human Rights (Fourth Section), sitting on 1 October 2013 as a Chamber composed of:

Ineta Ziemele, President,
David Thór Björgvinsson,
Päivi Hirvelä,
Ledi Bianku,
Vincent A. De Gaetano,
Paul Mahoney,
Faris Vehabović, judges,
and Fatoş Aracı, Deputy Section Registrar,

Having regard to the above applications lodged on 15 May 2012, 17 May 2012 and 25 September 2012 (see appendix),

Having deliberated, decides as follows:

THE FACTS

A list of the applicants is set out in the appendix.

A. The circumstances of the case

The facts of the case, as submitted by the applicants, may be summarised as follows.

1. The applicants’ arrest

In August 2006 all five applicants were arrested, along with others, in the context of a large-scale counter-terrorism operation. It was alleged that the applicants had conspired to construct and simultaneously explode improvised explosive devices (“IEDs”) on transatlantic passenger aircraft in flight, using suicide bombers.

2. The trial proceedings

(a) The first trial

A first trial of eight defendants, including the applicants, on charges of conspiracy to murder (Count 1) and conspiracy to endanger the safety of an aircraft (Count 2) began in the Crown Court on 4 April 2008. The prosecution case in respect of the conspiracy to murder charge was that the means by which it was to be effected was by way of detonation of IEDs on‑board aircraft in mid-flight.

After the close of the prosecution case, the indictment was amended to add a further count (Count 1A) which alleged a conspiracy to murder but did not specify the means by which the murder would be carried out. The count was added at the request of the prosecution to cover the possibility that a defendant had agreed to murder but was not aware of the means settled upon to bring the conspiracy to fruition. Count 1 was amended to make clear that it was concerned with a conspiracy to murder specifically by way of detonation of IEDs on aircraft mid-flight.

On 8 September 2008 the first and second applicants were convicted of Count 1A, but the jury was unable to reach a verdict on Count 1. The jury was also unable to reach a verdict on Count 1 or Count 1A in respect of the third, fourth and fifth applicants.

An exchange followed between judge and prosecuting counsel and the judge ordered the prosecution to indicate by 26 September 2008 whether a retrial would be sought.

The announcement of the verdicts was widely covered in the press and the media. In particular, the media attacked the jury’s failure to return guilty verdicts on Count 1.

(b) The first retrial

On 10 September 2008 the prosecution announced its intention to seek a retrial of the first and second applicants and the other defendant in respect of Count 1; and the third, fourth and fifth applicants and the other defendant in respect of Counts 1 and 1A. Communicating this decision to the media, it added:

“The [Crown Prosecution Service] would like to remind media organisations of the need to take great care in reporting the events surrounding this alleged plot. These remain allegations only and, if retrials take place, the defendants have the right to a fair trial. It is extremely important that there should be responsible media reporting which does not prejudice the due process of law.”

On 11 September 2008 every national newspaper reported that the applicants were to face a retrial. Reporting nevertheless continued until around 14 September 2008.

The applicants subsequently objected to a retrial. One of the grounds for objection was that a fair trial was no longer possible as a result of prejudicial publicity which had occurred following the conclusion of the first trial. They therefore applied for a stay of proceedings.

On 18 December 2008 Mr Justice Henriques refused the applicants’ request for a stay of proceedings. He summarised the defence case as follows:

“It is the defence case ... that the coverage was manipulated and orchestrated by state sources, either intelligence services, police anti-terrorist branches or government officials. It is asserted that there was a widespread press briefing exercise deigned and intended to inform the media of non-evidential material for publication post-verdict, the effect of which was to vilify the defendants in the eyes of the public by supplying the media in confidence with significant undisclosed background material.

The state, it is said, failed to take any steps either to notify the court of the confidential press briefings, thus preventing appropriate order from being made to prevent prejudicial publicity resulting from its own briefings.

This was, it is said, a deliberate attempt to manipulate the court’s process on any retrial by seeking to ensure that the world at large was prejudiced against the defendants by an unprecedented volume of state-sourced media coverage ...”

He considered it implicit in the submissions that the applicants’ argument was that no retrial jury exposed to this volume of publicity could try the case as an unbiased, independent and impartial tribunal.

Henriques J summarised the seven examples of inadmissible material which had been published by the press to which the defence had referred by way of illustrative examples.

The first example concerned disclosure of evidence not adduced at trial as to the first applicant being in telephone contact with the leader of the 21 July 2005 failed bombings of the London transport system. The statement appeared in almost every national paper and on national media. It was attributed to different sources in different publications, including, inter alia, senior detectives, police, “records show” and counter-terrorism officials.

The second example concerned disclosure of evidence not adduced at trial as to deeper links between some of the applicants and others convicted of terrorist offences, including trips to Pakistan at the same time as those responsible for the explosions on the London transport system on 7 July 2005 and the failed 21 July bombing attempt. The story was published in virtually every national newspaper and was broadcast on national media. It was attributed to, variously, detectives, intelligence officials, counter‑terrorism sources, investigators and trial officials.

The third example concerned disclosure of evidence not adduced at trial as to the applicants’ acquaintance and contact with a certain Rashid Rauf in Pakistan, who had allegedly put them in touch with Al-Qaeda’s leadership. This was published in almost every national newspaper and was broadcast on national media. Some of the attributed sources included the Pakistani Interior Minister, British officials, intelligence services, internal US intelligence documents, security sources and named senior officials in the United Kingdom and the United States.

The fourth example concerned assertions which were not the subject of evidence or disclosure at trial that the plot might have been overseen by Abu Ubaydah Al Masri, the former head of Al-Qaeda’s external operations, who had allegedly overseen the July 2005 London bombing plots. The information was carried by several newspapers and was attributed, inter alia, to the police, counter-terrorism officials, intelligence agencies and senior British and American officials.

The fifth example concerned assertions which were not the subject of evidence or disclosure at trial that the alleged plot was disrupted following interception of a text message encouraging the conspirators to act. Various levels of detail as to the context of the text message were published in some national newspapers and broadcast on television, with the attributed source being a British Government source.

The sixth example concerned assertions which were not the subject of evidence or disclosure at trial that the telephones of unspecified defendants were being intercepted by the police and that interception had revealed that a dummy run was being planned. Several newspapers and media sources carried the story, with the source being variously named as the police, counter-terrorism police and the head of Counter-Terrorism Command.

The seventh example concerned assertions that the United States Government had pressed Pakistan into making arrests before all the legal evidence had been gathered. The information was reported in several newspapers and by several broadcasters. A terrestrial television channel carried the express statement that the British State authorities had reason to delay the effecting of arrests owing to known intelligence that the conspirators would perform additional incriminating acts in furtherance of the airline conspiracy. The source was said to be the head of Counter‑Terrorism Command, US sources, senior British police and counter-terrorism sources, and the former shadow Minister for Homeland Security in the United Kingdom.

Henriques J set out the events immediately following the handing down of the verdicts and continued:

“It is simply not possible in this judgment to recite each and every objectionable word published by the media ... Whilst it will be convenient to cite in due course some of the worst examples, I readily accept that the multiplicity and breadth of reporting must be considered in order to gauge the potential effect upon any juror who will have been exposed to these or any significant number of these many reports ... I have read everything to which my attention has been drawn.”

He noted that there was an “avalanche of objectionable material” in prominent position in both broadsheet and tabloid newspapers. There was news coverage across all television and radio channels. There was, and continued to be at the time of Henriques J’s ruling, vast internet coverage which could be accessed with ease. The very essence of the large majority of the material asserted that all of the defendants were guilty of the conspiracy to blow up aircraft. Henriques J categorised the offending material as follows:

“(i) the defendants have strong links with several prominent Al Qaeda terrorists, including Rashid Rauf, 7/7/ bombers and 21/7 bombers, of which the jury were not informed; (ii) but for the premature arrest in Pakistan of Rashid Rauf, for which the Americans are to blame, more evidence would have become available to the prosecution; (iii) the activities of the defendants were being monitored by phone taps and other forms of interception and a dummy run was anticipated which might be used to carry out a real attack; (iv) the investigation had prevented unspeakable carnage and loss of countless lives; (v) the jury were incompetent, the evidence was very strong and the jury’s verdict was astonishing; (vi) the trial judge mishandled the trial and in particular permitted a two-week break during the jury retirement, the jury returning for only five days at the commencement of their deliberations before then going on holiday.”

Henriques J referred to guidance prepared by the Association of Chief Police Officers to be used for briefing before or during trial. He commented that it was possible to criticise parts of the document in that it failed sufficiently to distinguish between pre-trial and pre-verdict briefing. However, he said that it gave “very positive guidance” on pre-verdict media briefings. He said:

“...[I]t is common practice for there to be pre-verdict briefings in high profile cases. There are any number of matters in which the public have an interest. There is frequently a public debate concerning topics raised by the case. Instant reporting is demanded by the public at large. They are entitled to it. It is their right. Before there can be immediate post-verdict reporting, there must be pre-verdict briefing.”

The judge did not agree with the defence submission that secret Executive press briefings had taken place. He referred to material published in particular in the United States, before concluding that there were a “multiplicity of avenues” through which journalists could have gained information other than through secret briefings. He explained:

“... I regard the submission that the Executive quite deliberately briefed the press during the trial with a view to disadvantaging the defendants in any retrial that might possibly take place as fanciful ... The plot alleged requires not only foresight of a retrial during the trial itself; it requires foresight that the press will breach the embargoes that they have signed not to disclose such material until conclusion of the proceedings.”

As to the allegation that the State “perpetrated a gross manipulation and abuse of the court process by failing to restrain publicity resulting from its own briefings, the judge found again that there was absolutely no evidence that any individual had been party to such a plot. The judge rejected the allegations “with certainty”.

On the question whether the defendants could receive a fair trial, having regard to the publicity, the judge noted that the publicity was worldwide, often repeated and reported by every branch of the media, including the internet and associated blogs. It had run in the main from 8 September to 14 September, and much of the reporting remained available on the internet. On the approach to be adopted, the judge explained:

“As to the legal principles relevant to a defendant receiving a fair trial, I have reminded myself of Montgomery v HM Advocate [see below], and in the context of this case reminded myself that the only issue to be addressed is the right of a defendant to a fair trial and no assessment of the weight to be given to the public interest comes into the exercise. The fact that the allegations here are of the gravest nature is wholly irrelevant. The defendants must receive a fair trial, however grave the allegations and however far-reaching the consequences may be of staying this trial.”

The judge considered a number of authorities concerning the impact of prejudicial publicity before or during trial. He continued:

“I have concluded that a fair trial is in this case possible for all defendants on this indictment and propose to ensure that each of them does receive a fair trial. In reaching that conclusion I have brought the experience of many years in the criminal courts to this decision. I trust juries and have every confidence that they do indeed have regard to the directions given by judges.

...

I trust a jury in this building to decide whether they can be sure on the evidence presented to them that there was indeed a plan to blow up aircraft. I cannot accept the proposition that an English jury may convict because of something they may remember having read many months earlier. I do believe that juries pay attention and act upon the directions we give them. I will give them at the outset of the trial a most careful direction tailored particularly to this case and I shall canvass the direction with counsel before I deliver it. If necessary, I will repeat it from time to time.

I have no fears that the jury will be influenced by those earlier press reports. They know that none of us can believe everything that we read in the press ...

I believe that sufficient time will have passed by February 16th of next year, over five months since the publicity ...

There have been other terrorist trials in the meantime occupying crime correspondents and their readers. I am sure that the facts will have receded and faded, as will any possible prejudice.”

The judge cited examples of cases where offensive pre-trial publicity had taken place but the defendants had subsequently been acquitted. He concluded that he had absolutely no doubt that juries took their responsibilities most seriously and decided cases on the evidence presented to them in court. He fixed the retrial to commence on 16 February 2009.

The retrial duly commenced on 16 February 2009.

On 7 September 2009 the first and second applicants were convicted on Count 1. The third applicant was convicted on Count 1A but the jury was unable to reach a verdict on Count 1. The fourth and fifth applicants were acquitted on Count 1 but the jury was unable to reach a verdict on Count 1A.

The first applicant was sentenced to life imprisonment with a minimum term of forty years. The second applicant was sentenced to life imprisonment with a minimum term of thirty-two years. The third applicant was sentenced to life imprisonment with a minimum term of twenty-two years.

(c) The second retrial

Following the verdicts the prosecution sought a retrial of the fourth and fifth applicants on Count 1A. It decided not proceed further against the third applicant in respect of Count 1.

The fourth and fifth applicants applied to have the proceedings stayed on the basis that a further retrial was an abuse of process.

On 19 February 2010 Mr Justice Holroyde rejected the applications and ruled that the fourth and fifth applicants could be retried.

A second retrial commenced on 26 April 2010 on an indictment containing Count 1A.

On 8 July 2010 the fourth and fifth applicants were convicted on Count 1A. They were sentenced to life imprisonment with minimum terms of twenty years.

3. The appeal against conviction

The applicants sought leave to appeal. The Court of Appeal subsequently granted leave on several grounds, including the question whether the retrials were fair, having regard to the media publicity after the first trial.

On 19 May 2011 the applicants’ appeal against conviction was dismissed.

The court noted the high media interest in the trial and the simultaneous reporting of the trial proceedings, including the verdicts. It observed that in the circumstances it was impossible to have imposed restrictions on the verdicts as no-one had applied to the trial judge to ask for this to be done before the verdicts were taken. Even if such an application had been made and granted, given the worldwide interest in the case the Court of Appeal considered it difficult to see how publication of the verdicts could have been prevented in jurisdictions outside the trial court’s jurisdiction.

Responding to the submission on behalf of the applicants that jurors could no longer be relied upon to follow the trial judge’s directions, the court said:

“92. To the extent that there remains the risk that, despite what jurors are told by a judge, an individual juror might look up matters on the internet, any attempt by an individual juror to use what was found to influence the views of the other jurors is, in our judgement, bound to fail. For what was found on the internet to have any influence on the verdict of a jury, it would require other members of the jury to disobey their oath. In our judgement, ... the trial process in this trial was capable of coping with the adverse publicity. There was, it must be emphasised, no evidence at all to suggest that any juror had sought information on the internet.”

Before turning to consider the application of the relevant principles to the trial before Henriques J, the Court of Appeal emphasised that allegations that the publicity and disclosure of certain facts by State authorities had been deliberate were not pursued on appeal. It noted that embargoed police or prosecution service briefings were commonplace in major trials and that no challenge was made to the propriety of the press briefings. It also reviewed the actions of the prosecution and the Attorney General. The court then turned to consider in detail the ruling of Henriques J of 8 December 2008 and expressed itself to be “entirely satisfied” that he had not only applied the correct principles but had come to a conclusion that was open to him, namely that a fair-minded observer would consider that a jury, properly directed, could fairly try the applicants who had been convicted on Count 1A. It explained:

“104. Not only do we consider that conclusion open to him but we also consider that that conclusion was correct. We accept ... that trying the case elsewhere was not an option; asking potential jurors about their knowledge of the case again was not an option. However, we do consider that, given the trial process and the months that had elapsed before the second trial, the informed observer would be satisfied that a jury would consider fairly and impartially the evidence and would have no regard to the publicity to which we have referred.”

The court added:

“105. We have also taken into account the fact that, unlike the decisions in Abu Hamza and Montgomery v HM & Another [2003] 1 AC 641, this was not a case concerned with pre-trial publicity but with publicity following a conviction. The fact that it was a trial following a conviction on one count in our view is an important factor that may be viewed as more significant than pre-trial publicity. However, looking at the matter overall, we consider that the trial process could ensure a fair trial and a fair-minded observer would think that as well.”

On the question of the relevance of publicity after the second trial to whether it was in the “interests of justice” for a further trial to take place, the court acknowledged that there had been very considerable publicity which included the reporting of materials that had not been before either of the two prior juries and would not have been admissible in any retrial. It observed:

“133. The real issue ... was whether the trial process itself and suitable directions by the trial judge, together with the time lapse, would together mean that the informed observer would be satisfied that the jury would consider fairly and impartially the evidence notwithstanding the publicity we have outlined.”

The court referred to its conclusion as to the very limited scope for an individual juror improperly to influence the verdict through personal research in disobedience of his oath and specific instructions on the use of the internet. It decided that although the publicity did not make a fair trial impossible, it was a factor that had to be taken into account when assessing whether a second retrial was in the “interests of justice”. Weighing up all the relevant factors, the court concluded that the interests of justice required a second retrial.

On 16 November 2011 the Court of Appeal declined to certify that the applicants’ case raised a point of law of public importance.

B. Relevant domestic law and practice

1. Impartiality

In a judgment of the House of Lords in Magill v. Porter [2001] UKHL 67, Lord Hope of Craighead endorsed a judgment of the Court of Appeal, which took into consideration the jurisprudence of this Court, on the question of apparent bias and concluded that:

“The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.”

2. Prejudicial publicity

In Montgomery v HM Advocate and Another; Coulter v. HM Advocate and Another [2003] 1 AC 641, the Privy Council considered the impact of adverse pre-trial publicity. It held that the test to be applied in determining whether a stay should be ordered was whether the risk of prejudice was so grave that no directions to the jury could prevent it. Lord Hope, giving the lead judgment, explained:

“I am not persuaded that the judges in the court below were in error in their assessment of the effect of the publicity that has been given to this case and of the question whether, despite that publicity, the jury can be expected to act impartially. Recent research conducted for the New Zealand Law Commission suggests that the impact of pre-trial publicity and of prejudicial media coverage during the trial, even in high profile cases, is minimal ... The lapse of time since the last exposure may increasingly be regarded, with each month that passes, in itself as some kind of a safeguard. Nevertheless the risk that the widespread, prolonged and prejudicial publicity that occurred in this case will have a residual effect on the minds of at least some members of the jury cannot be regarded as negligible. The principal safeguards of the objective impartiality of the tribunal lie in the trial process itself and the conduct of the trial by the trial judge. On the one hand there is the discipline to which the jury will be subjected of listening to and thinking about the evidence. The actions of seeing and hearing the witnesses may be expected to have a far greater impact on their minds than such residual recollections as may exist about reports about the case in the media. This impact can be expected to be reinforced on the other hand by such warnings and directions as the trial judge may think it appropriate to give them as the trial proceeds, in particular when he delivers his charge before they retire to consider their verdict.

...

[T]he entire system of trial by jury is based upon the assumption that the jury will follow the instructions which they receive from the trial judge and that they will return a true verdict in accordance with the evidence.”

In R v. Hamza [2007] QB 659, the Court of Appeal observed that the fact that adverse publicity may have risked prejudicing a fair trial did not require that the trial should be stayed if the judge concluded that, with his assistance, a fair trial was still possible.

3. Instructions and directions to the jury

Upon responding to a summons, jury members are sent a leaflet called “Your Guide to Jury Service”. The leaflet explains that jurors’ discussions are private and that jurors should not discuss any aspects of the trial with anyone other than fellow jurors. It sets out that the verdict must be that of the jurors alone and reminds jurors that their role is to reach a verdict on the evidence presented in the court room at trial. The leaflet also notes that it is an offence for anyone outside the jury to try and influence them.

Once selected for jury duty, jurors must swear an oath or make an affirmation that they will:

“faithfully try the defendant and give a true verdict according to the evidence.”

At the outset of the trial, the jury are conventionally given a direction to the effect that they must try the case on the evidence alone, which is what they hear in court. They are instructed that they must not discuss the case with family, friends or anyone else or conduct their own research into the case.

In Re B [2006] EWCA Crim 2692, which involved an appeal against an order restricting the reporting of a criminal trial, the Court of Appeal said:

“There is a feature of our trial system which is sometimes overlooked or taken for granted. The collective experience of this constitution as well as the previous constitution of the court, both when we were in practice at the Bar and judicially, has demonstrated to us time and time again, that juries up and down the country have a passionate and profound belief in, and a commitment to, the right of a defendant to be given a fair trial. They know that it is integral to their responsibility. It is, when all is said and done, their birthright; it is shared by each one of them with the defendant. They guard it faithfully. The integrity of the jury is an essential feature of our trial process. Juries follow the directions which the judge will give them to focus exclusively on the evidence and to ignore anything they may have heard or read out of court. No doubt in this case [the judge] will give appropriate directions, tailor-made to the individual facts in the light of any trial post the sentencing hearing, after hearing submissions from counsel for the defendants. We cannot too strongly emphasise that the jury will follow them, not only because they will loyally abide by the directions of law which they will be given by the judge, but also because the directions themselves will appeal directly to their own instinctive and fundamental belief in the need for the trial process to be fair.”

COMPLAINT

The applicants complain under Article 6 § 1 of the Convention that the adverse publicity between the first trial and the first retrial and, in respect of the fourth and fifth applicants, between the first retrial and the second retrial, meant that they did not receive a fair trial by an impartial tribunal.

THE LAW

A. Compliance with Article 35 § 1 of the Convention

Pursuant to Article 35 § 1 of the Convention, the Court may only deal with a matter where it has been introduced within six months from the date of the final decision in the process of exhaustion of domestic remedies (see generally Tucka (No. 1) v. the United Kingdom (dec.), no. 34586/10, 18 January 2011). It is not open to the Court to set aside the application of the six-month rule (see Belaousof and Others v. Greece, no. 66296/01, § 38; and Miroshnik v. Ukraine, no. 75804/01, § 55, 27 November 2008).

The Court has recently confirmed that that the six-month time-limit starts to run on the day following delivery of the final domestic decision and that it expires six calendar months later, irrespective of the actual length of those months (Sabri Güneş v. Turkey [GC], no. 27396/06, §§ 44-62, 29 June 2012). Thus where the final decision in the case was served on the applicant on 28 November 2005, the time-limit laid down by Article 35 § 1 started to run on the following day, 29 November, and expired at midnight on 28 May 2006. The application in that case having been lodged on 29 May 2006, it was declared inadmissible.

The final domestic decision in the present case was the refusal of the Court of Appeal of 16 November 2011 to certify a question of general importance for further appeal to the Supreme Court. The six-month time‑limit accordingly began to run on 17 November 2011 and expired at midnight on 16 May 2012.

The applications lodged on behalf of the second, third and fourth applicants were lodged on 17 May 2012. The application on behalf of the fifth applicant was lodged on 25 September 2012. As these applications were lodged outside the six-month time-limit, they are inadmissible pursuant to Article 35 §§ 1 and 4 of the Convention.

B. The first applicant

The Court considers that it cannot, on the basis of the case file, determine the admissibility of the first applicant’s complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of it to the respondent Government.

For these reasons, the Court unanimously

Decides to adjourn the examination of the first applicant’s complaint;

Declares the remainder of the application inadmissible.

Fatos AracıIneta Ziemele
Deputy RegistrarPresident

Appendix

     Abdulla Ahmed ALI (“the first applicant”) is a British national who was born in 1980, is currently detained at HMP Frankland and is represented by Tuckers Solicitors. He lodged his application with the Court on 15 May 2012.

     Tanvir HUSSAIN (“the second applicant”) is a British national who was born in 1981, is currently detained at HMP Full Sutton and is represented by Tuckers Solicitors. He lodged his application with the Court on 17 May 2012.

     Umar ISLAM (“the third applicant”) is a British national who was born in 1981, is currently detained at HMP Frankland and is represented by Tuckers Solicitors. He lodged his application with the Court on 17 May 2012.

     Ibrahim SAVANT (“the fourth applicant”) is a British national who was born in 1981, is currently detained at HMP Wakefield and is represented by Tuckers Solicitors. He lodged his application with the Court on 17 May 2012.

5. Waheed ZAMAN (“the fifth applicant”) is a British national who was born in 1984, is currently detained at HMP Wakefield and is represented by Duncan Lewis Solicitors. He lodged his application with the Court on 25 September 2012.

 

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