CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 16 décembre 2014

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .s598389FB { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:14pt } .sE208486F { font-family:Arial; color:#ff0000 } .sEB98FB19 { margin-top:0pt; margin-left:14.2pt; margin-bottom:0pt } .s4ACA9207 { page-break-before:always; clear:both; mso-break-type:section-break } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .s967D43C6 { margin-top:36pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s9F223FEE { margin-top:18pt; margin-left:17.85pt; margin-bottom:12pt; text-indent:-17.85pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s7EE1C8F0 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sC702907E { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s8378218E { margin-top:12pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s8EB5F569 { font-family:Arial; font-size:6.67pt; vertical-align:super } .s88A92475 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sFFD057F { margin-top:0pt; margin-left:14.2pt; margin-bottom:0pt; text-align:justify } .sA464CC02 { margin-top:0pt; margin-left:35.3pt; margin-bottom:0pt; text-align:justify } .s1E2B8B97 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-align:justify; font-size:10pt } .s1F6AC3E7 { font-family:Arial; font-size:11pt; font-style:italic } .sCA71A5BA { margin-top:12pt; margin-left:59.5pt; margin-bottom:6pt; text-indent:-17.85pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sF0D62E79 { margin-top:12pt; margin-left:68.65pt; margin-bottom:6pt; text-indent:-16.75pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s127C7598 { margin-top:0pt; margin-left:17pt; margin-bottom:0pt; text-indent:-17pt; text-align:justify } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .sC8702D41 { width:154.61pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt }       FOURTH SECTION                 CASE OF IBRAHIM AND OTHERS v. THE UNITED KINGDOM   (Applications nos. 50541/08, 50571/08, 50573/08 and 40351/09)             JUDGMENT     STRASBOURG   16 December 2014       THIS CASE WAS REFERRED TO THE GRAND CHAMBER WHICH DELIVERED JUDGMENT IN THE CASE ON 13/09/2016   This judgment may be subject to editorial revision.   In the case of Ibrahim and Others v. the United Kingdom, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:   Ineta Ziemele, President,   Päivi Hirvelä,   George Nicolaou,   Ledi Bianku,   Zdravka Kalaydjieva,   Paul Mahoney,   Krzysztof Wojtyczek, judges, and Françoise Elens-Passos, Section Registrar, Having deliberated in private on 13 November 2014, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in four applications (nos.   50541/08, 50571/08, 50573/08 and 40351/09) against the United Kingdom of Great Britain and Northern Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”). 2.     The first three applications were lodged by Mr Muktar Said Ibrahim, Mr Ramzi Mohammed and Mr Yassin Omar on 22 October 2008. They are Somali nationals who were born in 1978, 1981, and 1981 respectively. The fourth application was lodged on 29 July 2009 by Mr Ismail Abdurahman, a British national who was born in Somalia in 1982. 3.     The applicants were represented as follows: - Mr Ibrahim and Mr Mohammed were represented by Irvine Thanvi Natas, a firm of solicitors based in London, assisted by Mr   J.   Bennathan   QC, counsel. - Mr Omar was represented by Ms Muddassar Arani, a lawyer practising in Middlesex with Arani Solicitors, assisted by Mr S. Vullo, counsel. - Mr Abdurahman was represented by Mr J. King and Ms A. Faul, counsel. 4.     The United Kingdom Government (“the Government”) were represented by their Agent, Ms A. Swampillai of the Foreign and Commonwealth Office. 5.     The applicants alleged a violation of Article 6 §§ 1 and 3 (c) in that they had been interviewed by the police without access to a lawyer and that the evidence obtained from those interviews was used at their respective trials. 6.     On 14 September 2010 the Court decided to give notice of the fourth applicant’s application to the Government. It also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1). 7.     On 22 May 2012 the applications lodged by Mr Ibrahim, Mr   Mohammed and Mr Omar were joined and declared partly inadmissible by a Chamber of the Fourth Section of the Court. On the same date, the Chamber decided to give notice of their complaints concerning their lack of access to a lawyer and the admission of the evidence of their police interviews at their trial to the Government. The Chamber also decided to rule on the admissibility and merits of those complaints at the same time (Article 29 §   1). THE FACTS I.     THE CIRCUMSTANCES OF THE CASE A.     Introduction 8.     On 7 July 2005, four suicide bombs exploded on three underground trains and one bus in central London, killing fifty-two people and injuring hundreds more. 9 .     Two weeks later, on 21 July 2005, the first three applicants, Mr   Ibrahim, Mr Mohammed and Mr Omar, and a fourth man, Mr   Hussain   Osman, detonated four bombs contained in rucksacks at separate points on the London public transport system. On 23 July 2005, a fifth bomb was discovered abandoned and undetonated in a bin. Mr   Manfo   Asiedu was identified as the fifth conspirator. 10 .     Although the four bombs were detonated, in each case the main charge, liquid hydrogen peroxide, failed to explode. Subsequent testing revealed that this was most likely the result of an inadequate concentration of the hydrogen peroxide: the hydrogen peroxide found in the bombs had a lower concentration than that which would have been necessary for it to explode. 11 .     The first three applicants and Mr Osman all fled the scenes of their attempted explosions. Images of the four men were, however, captured by closed-circuit television (“CCTV”) cameras. A national police manhunt began, in which photographs and the CCTV images of the men were broadcast on national television. The following day, 22 July, a young man was shot and killed on the London underground by police after being mistaken for one of the men. The four men were arrested, the first three applicants in England between 27 and 29 July and Mr Osman in Rome, Italy, on 30 July. They were tried and convicted for conspiracy to murder. 12.     The fourth applicant, Mr Abdurahman, gave Mr Osman shelter at his home in London, during the period when Mr Osman was on the run from the police and before he fled to Rome. In separate proceedings, Mr   Abdurahman was tried and convicted of assisting Mr Osman and failing to disclose information after the event. 13.     The details of the applicants’ arrests and initial police questioning are set out more fully below. B.     The case of the first three applicants 1.     The arrests and interviews (a)     The arrest and interview of Mr Omar 14 .     The first of the bombers to be arrested was Mr Omar. He was arrested on 27 July 2005 at 5.15 a.m. in Birmingham. 15 .     Upon arrest, he was cautioned by the police using the “new-style” caution (see paragraph 137 below), namely that he did not have to answer questions but that anything he did say might be given in evidence, and that adverse inferences might be drawn from his silence if he failed to mention matters later relied on by him at trial. The police officers who accompanied him to the police station later gave evidence that Mr Omar had said that he had not known what he was doing, had not known that the bomb would go off and had not wanted to hurt anyone. 16.     Mr Omar arrived at Paddington Green Police Station, London, at 7.20   a.m. At 7.50 a.m. he requested the attendance of a solicitor. He was told that he was entitled to consult a solicitor but that this right could be delayed for up to forty-eight hours if authorised by a police officer of the rank of superintendent or above. At 7.55 a.m. a superintendent ordered that Mr Omar be held incommunicado under Schedule 8 of the Terrorism Act 2000 (see paragraphs 140-143 below). 17 .     Shortly afterwards, a different superintendent directed that a safety interview be conducted with Mr Omar. A “safety interview” is an interview conducted urgently for the purpose of protecting life and preventing serious damage to property. The detainee is questioned in order to secure information that may help avert harm to the public, by preventing a further terrorist attack, for example. The interview may occur in the absence of a solicitor and before the detainee has had the opportunity to seek legal advice (see paragraphs 146 et seq. below). 18.     At 9 a.m. a brief safety interview took place. It lasted three minutes and focused on whether there was anything unsafe in a bag which Mr Omar had discarded when he was arrested. 19.     At 9.15 a.m. the custody officer at Paddington Green contacted the duty solicitor on behalf of Mr Omar. 20.     At 10.06 a.m. and 10.14 a.m. Mr Omar again requested access to a solicitor. He was told that this would be arranged as soon as the booking-in process had been completed. 21 .     At 10.24 a.m. the custody officer was told that a further safety interview had been authorised. It was recorded in writing that Mr Omar had not been given access to legal advice on the grounds that delaying the interview would involve an immediate risk of harm to persons or damage to property and that legal advice would lead to the alerting of other people suspected of having committed offences but not yet arrested, which would in turn make it more difficult to prevent an act of terrorism or to secure the arrest, prosecution or conviction of persons in connection with terrorism offences. The reason for these beliefs, which was also recorded, was that Mr   Omar was suspected of participating in the attacks of 21 July together with at least three as yet unidentified accomplices. There then followed four safety interviews. 22 .     Safety interview A commenced at 10.25 a.m. and concluded at 11.11   a.m. At the beginning of the interview, Mr Omar was given the old-style caution (see paragraph 135 below), namely that he did not need to say anything but that anything he did say might be given in evidence. 23 .     Safety interview B commenced at 11.26 a.m. and concluded at 12.11   a.m. Again, Mr Omar was given the old-style caution at the start of the interview. 24.     At 12.19 p.m. the duty solicitor was contacted and was told that safety interviews were taking place. 25 .     At 12.31 p.m. safety interview C commenced. This time, Mr Omar was given the new-style caution. It finished at 1.17 p.m. 26 .     At 1.35 p.m. safety interview D commenced, following the administration of the old-style caution. It was completed at 2.20 p.m. 27 .     During the safety interviews, Mr Omar either claimed that he did not recognise the other suspects from the photos in the media or he gave an incorrect account of how he knew some of them. He deliberately incorrectly described their involvement in the events of 21 July. 28.     Meanwhile, at 2.15 p.m., the custody officer contacted the duty solicitor. At 3.40 p.m. the duty solicitor arrived at the custody suite and was permitted to read the custody record. 29 .     At 4.08 p.m. Mr Omar was placed in a room for consultation with the duty solicitor. That consultation was interrupted at 4.15 p.m. for a further safety interview, which began at 4.19 p.m. and concluded at 4.21   p.m. and was conducted in the presence of the solicitor. (b)     The arrest and interview of Mr Ibrahim 30 .     The next suspect to be arrested was Mr Ibrahim. He was arrested on 29 July 2005 at 1.45 p.m. in a flat in West London. He was cautioned and asked whether there was any material on the premises which might cause danger. He replied that there was not. He was also asked whether there was any material anywhere which the police should know about and he replied that the police already knew about “58 Curtis” (the premises where the explosive devices were believed to have been manufactured) because they had been there already. He identified the other man that the police had seen at the West London flat that day as Mr Mohammed and was asked whether Mr Mohammed had control of any materials likely to cause danger. He replied, “No, listen, I’ve seen my photo and I was on the bus but I didn’t do anything, I was just on the bus”. He was told that he would be interviewed about that later and that all the police wanted to know was whether there was anything at another location that was likely to cause danger. Mr   Ibrahim indicated that he was aware that the police were trying to “link us to seven-seven” (referring to the events of 7 July 2005) and then said that he did “do the bus” but that he had had nothing to do with the events of 7   July. 31.     Mr Ibrahim arrived at Paddington Green Police Station at 2.20 p.m. He requested the assistance of the duty solicitor. 32.     At 4.20 p.m. he was reminded of his right to free legal advice and replied that he understood what had been said to him. The duty solicitor was contacted at 4.42 p.m. At 5 p.m. he called the police station and asked to speak to Mr Ibrahim. He was told that Mr Ibrahim was unavailable. The solicitor called again at 5.40 p.m. and was told that his details would be passed to the officer in charge of the investigation, but that telephone contact was impractical because the appropriate consultation rooms were unavailable. 33 .     At 6.10 p.m. a superintendent ordered an urgent safety interview and directed that Mr Ibrahim be held incommunicado. The custody record explained that his right to access to legal advice had been delayed because there were reasonable grounds for believing that delaying an interview would involve immediate risk of harm to persons or serious loss of, or damage to, property; and that it would lead to the alerting of other persons suspected of committing a terrorist offence but not yet arrested, which would make it more difficult to prevent an act of terrorism or secure the apprehension, prosecution or conviction of a person in connection with terrorism offences. The record referred to the suspicion that Mr Ibrahim had detonated an explosive device on 21 July 2005 as part of an organised attack intended to kill and injure members of the public. 34 .     At 7 p.m. a different solicitor called the police station and asked to speak to Mr Ibrahim. She was told that no-one of that name was held at the police station. At 7.45 p.m., when it was established that Mr Ibrahim was at the police station, she was told that he was already represented by the duty solicitor. 35 .     At 7.58 p.m. Mr Ibrahim was taken from his cell for a safety interview. At 8 p.m. the second solicitor contacted the custody officer. At 8.15   p.m., while Mr Ibrahim was being interviewed, the second solicitor called again seeking to speak to him. 36 .     At the beginning of the safety interview Mr Ibrahim was told: “...[I] am going to ask you some questions, you don’t have to say anything if you don’t want to but the court can draw what’s called an inference from that and that just means that they can look upon your silence as perhaps a sign of guilt. And then what is being said here, it is being tape-recorded and it can be used in court.” This was, in effect, the new-style caution (see paragraph 137 below). 37.     During the safety interview, Mr Ibrahim was asked whether he had any materials such as explosives or chemicals stored anywhere. He denied knowing where any such materials might be stored or having any knowledge of planned attacks which might endanger the public. He told the police that he did not know anything about explosives and that he had no links with any terrorist groups. He added that he did not know anyone who dealt with explosives, was a danger to society or was planning terrorist activities. He accepted that he knew Mr Omar, but denied knowing other men connected with the events of 21 July whose pictures had been shown on television. He was unaware of anyone he knew having been involved in these events. He said that Mr Mohammed was not someone who would be prepared to do anything like that. The safety interview ended at 8.35 p.m. 38.     At 8.45 p.m. the duty solicitor arrived at the police station. Mr   Ibrahim was sleeping and saw the solicitor at 10.05 p.m. 39.     During subsequent interviews while Mr Ibrahim was in detention, which were conducted in the presence of a solicitor, he made no comment. (c)     The arrest and interview of Mr Mohammed 40 .     The last of the three suspects to be arrested was Mr Mohammed. He was arrested and cautioned on 29 July 2005 at 3.22 p.m. at the same West London flat as Mr Ibrahim. 41.     He arrived at Paddington Green Police Station at 4.29 p.m. At   4.39   p.m. he requested the assistance of the duty solicitor. At 5.05 p.m. the custody officer asked the relevant officers to inform him whether Mr   Mohammed was to be held incommunicado and at 5.48 p.m. this was authorised. 42 .     Simultaneously, a superintendent authorised a safety interview. The reasons for delaying access to legal advice were recorded. The superintendent indicated that he believed that delaying an interview would involve immediate risk of harm to persons or serious loss of, or damage to, property; that it would lead to others suspected of having committed offences but not yet arrested being alerted; and that by alerting any other person it would be more difficult to prevent an act of terrorism or to secure the apprehension, prosecution or conviction of a person in connection with the commission, preparation or instigation of an act of terrorism. 43.     At 6.59 p.m. the custody officer called the duty solicitor scheme. At 7.19 p.m. Mr Mohammed signed the custody record indicating that he wished to speak to a solicitor as soon as practicable. At 7.34 p.m. he was told that he was being held incommunicado. 44.     At about 8 p.m. duty solicitors arrived at the front desk of Paddington Green Police Station. 45 .     At 8.14 p.m. the safety interview of Mr Mohammed commenced without the presence of a solicitor. He   was given the new-style caution (see paragraph 137 below). He was told that he was suspected of involvement in the attacks of 21 July and was asked if he had any knowledge of further explosives, and those who had them, which could cause harm to the public in the near future. He maintained that he had nothing to do with the events of 21 July 2005 and that he knew nothing about them. He did not recognise the photographs of the alleged perpetrators which he had seen in the media. The safety interview finished at 8.22 p.m. 46.     The duty solicitors arrived at the custody suite at 8.40 p.m. and saw Mr Mohammed at 9.45 p.m. The delay was partly caused by Mr   Mohammed’s request for time to pray and the provision of a meal. 47.     On 31 July 2005 Mr Mohammed was interviewed for the second time, this time in the presence of a solicitor. Early in the interview, the solicitor read out the following statement by Mr Mohammed: “I am not a terrorist and I’m not in any way connected to any acts of terrorism and have not been connected to any acts of terrorism ... particularly on 21 st July or the 7 th   July 2005.” 48.     Thereafter Mr Mohammed exercised his right to silence. 2.     The trial of the first three applicants 49 .     The trial of the first three applicants for conspiracy to murder commenced in the Crown Court at Woolwich on 15 January 2007 before Mr   Justice Fulford and a jury. It was to last seven months. The applicants stood trial alongside Mr Osman, Mr Asiedu (see paragraph 9 above) and Mr   Adel Yahya (accused of taking part in the essential preparation for the attacks). 50.     The applicants’ defence was that although they had been involved in the events of 21 July 2005 and had detonated the explosive devices, their actions were not intended to kill but were merely an elaborate hoax designed as a protest against the war in Iraq. The bombs had been designed to look realistic and to cause a bang when they went off but had deliberately been constructed with flaws to ensure that the main charge would not detonate. (a) The admissibility of the safety interviews 51 .     At the start of the trial, the applicants argued that the admission of the statements they had given during their safety interviews would have such an adverse effect on the fairness of the proceedings that they ought to be excluded pursuant to section 78 of the Police and Criminal Evidence Act 1978 (“PACE” – see paragraph 154 below). They contended that their right of access to a solicitor before and during the safety interviews had been violated and that their right against self ‑ incrimination had been breached as a result of the use of the new-style caution, when the old-style caution, (which made it clear that no adverse inferences could be drawn from their silence because they had not had access to solicitors) ought to have been used instead. They also argued that the statements should be excluded on grounds of public policy as, if such statements were routinely admitted, there was a greater likelihood that suspects would refuse to answer questions about public safety. 52 .     A voir dire (i.e. a hearing to determine the admissibility of evidence) was conducted. At its conclusion, and after hearing counsels’ submissions, the trial judge concluded that the statements made during the safety interviews could be admitted. His written ruling ran to 171 paragraphs and may be summarised as follows. 53.     The judge referred at the outset to the explanation given by the police superintendent in charge of the investigation of the situation which he had faced. The superintendent had pointed in particular to the discovery of a quantity of chemicals, which appeared to be far in excess of that required to construct the devices used during the attacks of 21 July, and to evidence that the suspects had been in receipt of considerable post-event assistance. 54 .     The judge also considered the facilities available in the custody area at Paddington Green Police Station, where the applicants had been taken after their arrest and where the safety interviews had taken place. The entire custody facilities had been given over to the investigation into the attempted bombings. There were twenty-two cells, rooms for medical and forensic testing purposes and four rooms for consultations between suspects and their solicitors. However, at the time of Mr Ibrahim and Mr Mohammed’s safety interviews, eighteen individuals suspected of terrorism offences were detained at the police station. The imperative was to prevent communication between the suspects and to avoid cross-contamination in the course of searches and other forensic processes. 55 .     The trial judge next referred to the relevant statutory framework governing access to legal advice for those held under terrorism legislation (see paragraphs 139 et seq. below), which made it clear that where a suspect was interviewed without legal assistance, the old-style caution should be administered, because section 34(2A) of the Criminal Justice and Public Order Act 1994 prohibited the drawing of adverse inferences from silence where the suspect had not had access to legal advice (see paragraph 136 below). However, he considered that this did not extend to preventing the court from admitting evidence of things said by a suspect during questioning, including any lies that he told. The judge indicated that the jury would be told that, contrary to the terms of the new-style caution that had been on occasion administered, no adverse inferences could be drawn from the applicants’ failure to mention during questioning facts later relied on at trial. 56.     He then turned to review this Court’s case-law on access to legal advice and the right to silence, explaining: “In my view, the following conclusions are to be drawn from those decisions of the ECHR. First, legal advice can be withheld for good cause during the early stages of interviews, so long as the conditions in which the interviews occur are not significantly coercive ( Magee v. the United Kingdom , no. 28135/95, ECHR 2000 VI) and so long as access is not delayed for an excessive period ( John Murray v. the United Kingdom, 8 February 1996 , Reports of Judgments and Decisions 1996-I). Moreover, interviewing a suspect having withheld legal advice and following a new ‑ style caution is not decisive in the assessment of whether there has been a breach of Article 6 ( Averill v. the United Kingdom , no. 36408/97, ECHR 2000 ‑ VI). Rather, the court must look at the circumstances overall and the use to which evidence is put (and including whether adverse inferences are drawn). Accordingly, so long as the overall circumstances have not caused irretrievable prejudice to the rights of the defendant, much will depend on the directions a jury receives as to how they should approach the silence or the statement of a suspect in these circumstances. As the Court made clear in Averill , considerable caution is required when attaching weight to the fact that a person arrested in connection with a serious criminal offence and having been denied access to a lawyer during the early stages of his interrogation responds in a particular way – or as in that case, does not respond – to the questions put to him. The need for caution is not removed simply because an accused is eventually allowed to see his solicitor and then refuses to answer questions. A jury must be given a strong and careful warning that they must take into account all of the relevant circumstances; they must have discounted all reasonable (‘innocent’) explanations for the accused’s silence or statements before they consider using this material against him; and the jury must be told to be careful not to accord disproportionate weight to this evidence.” 57.     The trial judge considered that the applicable code of practice (see paragraphs 144-151 below) and the caution were primarily designed to protect an accused from self-incrimination and to warn him of the consequences if he chose to answer questions and the harm that could be done to his case if he failed to reveal elements of his defence on which he later relied at trial. Neither the code nor the caution was intended to protect defendants from telling lies. The judge explained: “Whilst I recognise that an accused may benefit from having a solicitor remind him of his moral duty to tell the truth, in my view it is an invalid argument to suggest that an interview is necessarily inadmissible because the suspect did not have the advantage of a consultation with a solicitor, who had been excluded for good cause, in order to tell him that he should not deceive the police.” 58 .     He concluded that, despite the absence of a solicitor during the safety interviews and the use of the wrong caution, there was no significant unfairness or material infringement of the applicants’ right to a fair trial. 59.     In response to the submission that the applicants were confronted with irreconcilable propositions when asked to participate in the safety interviews, the judge found that they were not. He noted: “... The defendants were confronted with a stark but clear choice: either they could help the police in the knowledge that what they said may be utilised against them, or they could protect themselves and remain silent ... What is clear beyond doubt is that the defendants were not misled or deceived as to the underlying purpose of the interviews, the possible consequences of answering questions or the potential risks of not revealing elements of their defence ...” 60 .     He further observed that the defence that the applicants chose not to reveal at that stage was directly relevant to the public safety issues and was easy to describe. It did not require any detailed understanding of the criminal law or a complicated factual explanation. It could have been summed up by the single word “hoax”. The judge accepted that it was sometimes necessary to have the assistance of a lawyer before a suspect could understand and describe a complicated defence, but said that this was not the case here. 61.     The judge considered that the defendants might have had a more credible position if they had answered the questions posed in ways which were at least arguably designed to assist the public and which, as a result, incriminated them. However, it was common ground that they had either lied or failed to reveal what they knew in the safety interviews: rather than incriminate themselves, they had offered false, exculpatory explanations. The judge further found that the invitation to cooperate in the process of protecting the public was not an impermissible inducement. Finally, he concluded that the administration of the new-style caution did not pressure the defendants into providing any element of their various defences. 62 .     The judge set out in detail the approach he had adopted to the exercise of his discretion whether to exclude the evidence. In particular, he had given full weight to the principle that access to legal advice before and during questioning was one of the most fundamental rights that should only be denied on reasonable grounds in particular cases; and he had taken into consideration the fact that the environment in which the applicants were held was not in any true sense coercive and that the questioning was neither oppressive nor unfair. While he accepted that the erroneous administration of the new-style caution involved a level of indirect compulsion, this was not, in his view, decisive: the choice for the applicants was an easy one and they had not been “induced” by the caution to incriminate themselves but had instead told deliberate, exculpatory lies. He also noted that the evidence of the safety interviews was potentially of high relevance to the central question raised in the trial, namely whether the defences now advanced were possibly true. 63 .     As regards Mr Omar’s safety interviews, the judge observed that, in answering the questions designed to protect the public, Mr Omar had volunteered a very large amount of misleading information. He had not incriminated himself at any stage, but had instead told extensive exculpatory lies. The judge considered it clear that the police officers had concentrated throughout on issues that might have revealed information relevant to assisting them to locate people or items that could pose a danger to the public. He noted that there was no suggestion that the police had exceeded the requirements of what was necessary and that it was acknowledged that the lines of questioning were relevant to public safety issues. 64 .     The judge found that Mr Omar had been denied access to a solicitor for a little over eight hours. The safety interviews had been conducted expeditiously and as soon as they were completed Mr Omar had been given access to a solicitor. The interviews were neither coercive nor oppressive, as accepted by Mr Omar’s counsel. Although a breach of the applicable code of practice had occurred when the new-style caution was administered at the beginning of safety interview C, that had not affected his attitude to the questioning. He had continued telling lies consistent with what he had said in safety interviews A and B. 65.     As regards Mr Ibrahim, having reviewed the evidence showing the times and locations of the various interviews and consultations taking place at the police station, the judge accepted “unhesitatingly” that it would have been impractical for a telephone conversation between the solicitor and Mr   Ibrahim to have been arranged at the time of her telephone calls (see paragraphs 34-35 above). He observed that at the relevant time there had been eighteen detainees at the police station, all arrested for suspected involvement in the events of 21 July 2005. The police station had been exceptionally busy and the conference rooms had been prioritised for face-to-face consultations; it would not have been a realistic option to leave a room free with a telephone socket for telephone conversations with lawyers. The judge noted that the police had accepted that there had been a breakdown in communication in that the interviewing officers had not been told that Mr Ibrahim’s solicitor was trying to speak with him on the telephone. 66.     The judge further held that it would have been impractical for Mr   Ibrahim to have spoken to a solicitor before the booking-in procedures were completed at 4.42 p.m. Although there was, in theory, time for a face ‑ to-face conference between 6.10 p.m., when the safety interview was authorised, and 7.58 p.m., when it commenced, the judge considered that, in light of the pressure under which the police were working, it was wholly understandable that no officer had appreciated that there was time to ask the duty solicitor to attend for a meeting with Mr Ibrahim before the safety interview commenced. However, the judge was of the view that it should have been possible, between 5 p.m. and 7.58 p.m., to ensure that the duty solicitor was given access to Mr Ibrahim by telephone and accordingly concluded that, to this limited extent, he was incorrectly denied access to legal advice by telephone. However, he considered that this error did not involve a material infringement of his defence rights, noting: “145.     ... [T]his infringement of his rights was of low significance: it would have been impossible for [the duty solicitor], in speaking to Ibrahim for the first time over the telephone, to give detailed and informed advice in those circumstances, and she would have been unable to provide material assistance on the decision which he had to take. Although for this defendant the choice was a straightforward one, [the duty solicitor] would have needed to understand the entirety of the main background circumstances before she could give advice that would have been useful to Ibrahim as regards the options confronting him. She could have advised him of his rights, but save for any issues arising out of the misuse of the new-style caution, his core rights had already been made clear to him: he was entitled to legal advice (which had been delayed for public safety reasons); he was entitled to remain silent; and anything he did say may be given in evidence against him. There is no suggestion that he did not understand these straightforward matters.” 67 .     The judge considered that the erroneous use of the new-style caution was a straightforward and wholly understandable oversight on the part of the officers conducting the interview, given the pressure under which they were operating. He noted that the safety interview was short; that it was not suggested that it had been conducted coercively; and that the questions did not go beyond legitimate questioning for safety purposes. The judge examined the transcript of the safety interview conducted and noted that Mr   Ibrahim had consistently denied having knowledge of any planned future attacks or hidden explosives. Mr Ibrahim had seen a lawyer around seven and a half hours after his first request to see one. 68 .     In respect of Mr Mohammed, the judge found that legal advice had been delayed for about four hours, during which time eight minutes of questioning had taken place. There was no suggestion that the interview had been held in coercive circumstances. Aside from the administration of the new-style caution, there was no evidence of any pressure having been applied. The judge was sure that the interview had not exceeded the legitimate bounds or purpose of a safety interview and had been, on the contrary, focused and appropriate. 69 .     The judge therefore concluded that there had been no material infringement of the right of any of the applicants to exercise their defence rights and that the interviews were admissible in their entirety. (b)     The other prosecution evidence 70.     The main issue at trial was whether the failure of the devices to explode was an intentional design flaw (in which case the applicants could not be guilty of conspiracy to murder) or a mistake in the construction of the devices. The prosecution relied heavily on the applicants’ answers in their safety interviews to undermine their defence that the events of 21 July were intended as a hoax. 71 .     The prosecution also led evidence that the men had extremist views. They relied on extremist material found at the residences of Mr Omar and Mr Osman (of beheadings and other atrocities); evidence that the first three applicants and Mr Osman had attended a training camp in the Lake District and that Mr Ibrahim had travelled abroad on jihad; and evidence that Mr   Omar had tried to convince an outsider to the group of the legitimacy of suicide bombings and other terrorist activity and, on another occasion, had shouted at an imam who had condemned suicide bombings. Also introduced as evidence were jottings referring to martyrdom on the same pad of paper that had been used to note the amount of materials supposed to go into each bomb. 72 .     The prosecution further relied on evidence as to the purchase of the material for the bombs and their preparation. They established that, between 28 April and 5 July 2005, 443 litres of liquid hydrogen peroxide at a low concentration had been purchased from three shops in north London in a total of 284 containers by Mr Asiedu, Mr Ibrahim and Mr Omar. There was evidence that they had initially requested liquid hydrogen peroxide at a much higher strength at or near the strength necessary to enable explosion and that they had boiled the hydrogen peroxide to increase its concentration. A number of the empty bottles later recovered had handwritten numerical markings on them, which the prosecution contended was proof that the defendants believed that the requisite concentration for explosion had been reached. A rota showed over 200 hours’ work boiling the hydrogen peroxide. 73 .     Scientific evidence was also led as to the construction of the bombs, which had been put in rucksacks adapted for the purpose. The detonator was encased in paper from an A4 pad. Shrapnel had been added to the devices, which would have increased fragmentation upon explosion and maximised the possibility of injury. Both prosecution and defence experts agreed that the bombs were not viable. The prosecution’s expert explained that this was because the hydrogen peroxide had not reached the necessary concentration required for explosion. He noted that it would have been difficult for those constructing the bombs to have measured the strength of the hydrogen peroxide but pointed out that, if the purpose had only been an hoax, no increase in hydrogen peroxide concentration would have been necessary: at the initial low concentration or with a banger inserted into the mix, the same impression of noise would have been produced. In response to the defence claim that the hydrogen peroxide had been concentrated and then diluted again with tap water (see paragraph 77 below), analysis of the isotope composition of London tap water showed that this was not possible. 74 .     The prosecution also referred to telephone and CCTV evidence of extensive contacts between the men primarily before, but also after, 21 July 2005. 75 .     A farewell letter written by Mr Mohammed, which the prosecution alleged was a suicide note, was also admitted in evidence. It was alleged to have come from the same pad of paper as had been used for encasing the detonator in the bombs. A witness gave evidence that he had received the letter on 21 July 2005 from Mr Mohammed’s brother and had been asked to pass it on to Mr Mohammed’s partner. 76 .     The jury also heard evidence from passengers on the trains where three of the bombs had been detonated. One gave evidence of Mr   Mohammed mumbling nervously to himself on the platform, another of him shouting “this is wrong, this is wrong” after the detonation of his bomb, still others of his look of surprise, confusion and panic afterwards. In respect of Mr Omar, passengers gave evidence of his surprise and fear. Two witnesses he encountered during his escape gave evidence that he had asked them for help and had told them he had been injured in a bomb attack or explosion. In respect of Mr Ibrahim, the bus driver who had been in charge of the bus on which Mr Ibrahim’s detonation took place gave evidence of Mr Ibrahim’s nervousness in boarding the bus. (c)     The defence evidence 77 .     The applicants gave evidence to the effect that their actions were intended as a hoax. They had initially planned to leave the bombs unattended in public to make a point about the Iraq war. After the events of 7 July, the plan changed to detonating the bombs but not the main charge of hydrogen peroxide. To this end, they maintained that, although they had tried to concentrate the hydrogen peroxide by boiling it, they had then watered it down so that it would no longer be at the necessary concentration for an explosion. Mr Ibrahim gave evidence that he had not intended to detonate his bomb on the bus; it had gone off accidentally as he felt for the battery in order to try and remove it. Mr Mohammed explained his farewell letter saying that it had in fact been written on 23 July after the shooting of the man mistaken for one of the suspects (see paragraph 11 above) because he thought that he too would be shot by the police. It was pure coincidence that it was written on the same pad as that used for the detonator. 78 .     Like the first three applicants, Mr Asiedu’s case prior to trial was that the events of 21 July 2005 were a hoax. However, after Mr Ibrahim had given evidence, Mr Asiedu gave oral evidence and changed his previous position. He claimed to have learned on the morning of 21 July 2005 that the devices were real bombs. He was too confused and frightened to refuse the device that was handed to him but, in accepting it, he did not intend to join or play any part in the conspiracy. (d)     The summing-up 79 .     During his summing up to the jury, the judge gave the following direction in respect of the statements made in the safety interviews: “What about the lies, members of the jury, told by some defendants to the police? It is admitted that the defendants Ibrahim, Asiedu, Omar and Mohamed lied to the police in different ways during their interviews. ... [B]efore you even begin to take any lies into consideration, you must pay careful attention to the circumstances in which the lies were told and those circumstances vary between the defendants. First, you will recall that because of the exceptional circumstances that existed in July 2005 safety interviews were authorised in the cases of Ibrahim, Omar and Mohamed. That meant that those defendants were questioned in an attempt to preserve the safety of the public before they had the opportunity of consulting with a solicitor. It is not alleged by anyone that legal advice was denied by the officers as a result of bad faith or dishonesty. However, access to legal advice prior to interview is a right that is usually afforded to a suspect and you should take into consideration that this did not happen. For instance, a solicitor may have advised the defendant in question to remain silent or they may have reminded the defendant that he should tell the truth and that there may be consequences if he lied. Therefore, when considering whether to hold any lie told by those three defendants during a safety interview against them, remember that this safeguard with these safety interviews was withheld.” 80 .     The judge also directed the jury to bear in mind that incorrect cautions had been used. He explained: “As a result, it was confused and potentially confusing for all three defendants. The new-style caution that was administered may have put inappropriate pressure on them to speak. When considering whether or not to hold any lie told by a defendant during a safety interview against him, take into account, therefore, that unsatisfactory history as regards the use of the caution. However, as regards the use of the new-style caution, you are also entitled to bear in mind that none of these three defendants were in fact pressurised into revealing anything that they have later relied on in this trial. To the contrary, on all or most material issues they lied.” 81 .     In respect of those lies, the judge observed: “In addition, for Ibrahim, Asiedu, Omar, Osman and Mohammed when assessing lies they told whilst in police custody, whether in a safety interview or otherwise, you should consider two further questions: on the particular issue you are considering, you must decide whether the defendant you are considering did in fact deliberately tell lies. If you are not sure he did, ignore this matter on that issue. If you are sure, consider why did the defendant lie on that issue. The mere fact that a defendant tells a lie is not in itself evidence of guilt. A defendant may lie for many reasons and they may possibly be innocent ones in the sense that they do not denote guilt. It is suggested here that lies were told for a variety of reasons: out of fear of admitting a degree of involvement or knowledge but which the defendant says falls short of his being a conspirator, that is Asiedu; to protect others who they feared would be falsely accused and might be killed or injured as a result; out of fear of admitting involvement, as they claim, in a hoax attack, or out of panic, distress, confusion, or from fear of being assaulted. If you think that there is, or may be, an innocent explanation for the lies told by the defendant you are considering, then you should take no notice of them. It is only if you are sure that he did not lie for an innocent reason that his lies can be regarded by you as evidence supporting the prosecution case, subject to the other directions I have just given you on this issue relating to the safety interviews.” 82 .     Concerning the failure of the applicants to mention the defence led at trial during the safety interviews, the judge directed as follows:   “Let us turn then to the failure of the defendants to answer questions in interview. The first matter to stress is that you must not hold it against Ibrahim, Omar and Mohammed that they failed to mention during the safety interviews matters which they later relied on in court. That is because, as I have just explained to you, access to a lawyer had been denied at that stage and the law is that in those circumstances a defendant is not to be criticised for failing to mention matters that later form part of his defence. Of course it follows from the direction I have just given you about lies that if instead of remaining silent they told lies, you are entitled to take those untruths into account, subject always to the matters I have just directed you to take into account. ... [M]y clear direction to you is that you must not hold it against Ibrahim, Omar and Mohammed that they failed to mention during t