Information Note on the Court’s case-law No. 137
January 2011
Mustafa (Abu Hamza) v. the United Kingdom (dec.) - 31411/07
Decision 18.1.2011 [Section IV]
Article 6
Criminal proceedings
Article 6-1
Fair hearing
Alleged denial of fair trial for suspected terrorist, notably on account of adverse media publicity: inadmissible
Facts – Between 1996 and 2000 the applicant, an imam at a London mosque, delivered a series of sermons and speeches which brought him to the attention of the United Kingdom Security Service. He had a number of meetings with officials from the Service in 1997 and 1998. He also had meetings with the police during this period and in 1999 was arrested and interviewed by the police as part of an inquiry into a hostage taking in Yemen before being released without charge. Between 2002 and 2004 he attracted widespread media attention after successively being designated a global terrorist by the President of the United States, informed that he was to lose his British citizenship because of his activities and made the subject of an extradition request by the United States in connection with the Yemeni kidnapping. In October 2004 he was charged in the United Kingdom with various counts of soliciting to murder and stirring up racial hatred between 1997 and 2000. He sought to have the prosecution stayed as an abuse of process on the grounds that, as a result of his dealings with the Security Service and police, he had either been given assurances that he would not be prosecuted or left with the legitimate expectation that he would not be. He also argued that the publicity surrounding him had grown to such an extent that it would be impossible for him to receive a fair trial and that the delay had made it impossible for him to defend himself. That application was, however, refused and he was convicted of a number of the offences charged. His conviction was upheld on appeal.
Law – Article 6 § 1
(a) Alleged assurances of non-prosecution – The Court would not exclude the possibility that if prosecuting authorities reneged on an assurance to a defendant that he would not be prosecuted for certain offences the subsequent criminal proceedings would be unfair. However, nothing in the applicant’s case could be treated as an assurance that the applicant would not be prosecuted. While the notes of his meetings with the Security Service officials raised certain questions, it must have been clear to the applicant that they were not qualified to advise him on whether his conduct amounted to incitement or to provide assurances as to whether or not he would be prosecuted. The applicant had not alleged that the notes of his meetings with the police would demonstrate that he had been given an unequivocal assurance by the police that he would not be prosecuted. Nor could the Secretary of State’s decisions to deprive the applicant of his citizenship and to accede to his extradition have been seen as an assurance of non-prosecution. In any event, even if the trial judge had found that such an assurance had been given, the domestic case-law made it clear that it would have been open to him to grant a stay of proceedings. That case-law was entirely compatible with Article 6.
(b) Delay and adverse publicity – The applicant had not complained that the delay in itself had made his trial unfair but rather that the delay meant that the intervening attack on the World Trade Center on 11 September 2001 had made it impossible for him to explain the context of his speeches. It was therefore appropriate to consider the issues of delay and adverse publicity together. There was no allegation that the subjective impartiality of the jury had been affected. As regards objective impartiality, the Court accepted that a virulent media campaign could in certain circumstances undermine the fairness of a trial by influencing public opinion and thus the jury which is called upon to decide on the culpability of the accused. However, in the majority of cases the nature of the trial process and, in particular, the role of the trial judge in directing the jury would ensure that the proceedings were fair. Domestic courts were better placed than the Court to decide whether exceptional circumstances existed, especially where, as here, they enjoyed wide powers to prevent adverse media reporting during trial and to stay proceedings on grounds of an abuse of process. In the applicant’s case, the trial judge had given a full and unequivocal direction to the jury to ignore the adverse publicity and to concentrate instead on the evidence before them. A further, careful and skilful, direction had been given after the jury had begun their deliberations. These directions, when taken with the repeated warnings given by the trial judge to the media in the course of the trial, had provided sufficient guarantees to exclude any objectively justified or legitimate doubts as to the impartiality of the jury. There was, therefore, no appearance of a violation of Article 6.
Conclusion: inadmissible (manifestly ill-founded).
Article 6 § 2: There was no direct link between the Secretary of State’s announcement of his intention to deprive the applicant of his citizenship and the later decision by the prosecuting authority to bring criminal proceedings. Although the grounds for the Secretary of State’s decision had included the allegation that the applicant had promoted anti-Western sentiment and violence through his preaching, that allegation had been made in general terms without any specific reference to the particular speeches for which the applicant would later be prosecuted. In any event, an allegation that conduct made a person’s presence in a country undesirable did not mean that the maker of the allegation considered the same conduct to be a criminal offence. The Secretary of State’s decision and the allegations made in support of it therefore fell some way short of the clear declarations as to the applicant’s guilt that had led to a finding of a violation in Allenet de Ribemont v. France (no. 15175/89, 10 February 1995). The same considerations applied to the applicant’s designation as a terrorist by the President of the United States, which concerned quite separate allegations.
Conclusion: inadmissible (manifestly ill-founded).
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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