CEDH · CASELAW;JUDGMENTS;GRANDCHAMBER;ENG — 13 septembre 2016

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page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s76CF415B { page-break-before:always; clear:both } .sC36A6361 { font-family:Arial; color:#000000 } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .sE9E4B253 { font-family:Arial; font-size:8pt; font-style:italic; vertical-align:super; color:#0069d6 } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s83BE5C30 { font-family:Arial; font-size:8pt; vertical-align:super } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt }     GRAND CHAMBER             CASE OF IBRAHIM AND OTHERS v. THE UNITED KINGDOM   (Applications nos. 50541/08, 50571/08, 50573/08 and 40351/09)                     JUDGMENT     STRASBOURG   13 September 2016       This judgment is final but it may be subject to editorial revision.     Contents PROCEDURE THE FACTS I.     THE CIRCUMSTANCES OF THE CASE A.     Introduction B.     The first three applicants 1.     The arrests and interviews 2.     The trial of the first three applicants 3.     The appeal of the first three applicants C.     The case of the fourth applicant 1.     The fourth applicant’s questioning by the police 2.     The fourth applicant’s trial 3.     The fourth applicant’s appeal II.     RELEVANT DOMESTIC LAW AND PRACTICE A.     Cautions B.     Safety interviews 1.     The Terrorism Act 2000 2.     The relevant provisions of Code C C.     The admissibility of evidence D.     The reopening of criminal proceedings III.     RELEVANT EUROPEAN UNION AND INTERNATIONAL LEGAL MATERIALS A.   European Union law 1.     The right to be informed 2.     The right of access to a lawyer 3.     Privilege against self-incrimination and right to silence B.     International law 1.     The International Covenant on Civil and Political Rights (“ICCPR”) 2.     International criminal tribunals IV.     RELEVANT COMPARATIVE LEGAL MATERIALS A.     Council of Europe States B.     The United States C.     Canada THE LAW I.     ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 (c) OF THE CONVENTION A.     The Chamber’s conclusions B.     The parties’ submissions to the Grand Chamber 1.     The applicants 2.     The Government 3.     The third party intervener C.     The Court’s assessment 1.     General principles 2.     The application of the general principles to the facts of the case II.     APPLICATION OF ARTICLE 41 OF THE CONVENTION A.     Damage B.     Costs and expenses C.     Default interest FOR THESE REASONS, THE COURT, CONCURRING OPINION OF JUDGE MAHONEY JOINT PARTLY DISSENTING, PARTLY CONCURRING OPINION OF JUDGES SAJÓ AND LAFFRANQUE JOINT PARTLY DISSENTING OPINION OF JUDGES SAJÓ, KARAKAŞ, LAZAROVA TRAJKOVSKA AND DE GAETANO JOINT PARTLY DISSENTING OPINION OF JUDGES HAJIYEV, YUDKIVSKA, LEMMENS, MAHONEY, SILVIS AND O’LEARY PARTLY DISSENTING OPINION OF JUDGE LEMMENS DISSENTING OPINION OF JUDGE SAJÓ   In the case of Ibrahim and Others v. the United Kingdom, The European Court of Human Rights, sitting as a Grand Chamber composed of:   Guido Raimondi, President ,   András Sajó,   Işıl Karakaş,   Luis López Guerra,   Mirjana Lazarova Trajkovska,   Ganna Yudkivska,   Khanlar Hajiyev,   Nona Tsotsoria,   Vincent A. De Gaetano,   Julia Laffranque,   Paul Lemmens,   Paul Mahoney,   Johannes Silvis,   Dmitry Dedov,   Robert Spano,   Iulia Motoc,   Síofra O’Leary, judges, and Lawrence Early, Jurisconsult, Having deliberated in private on 25 November 2015 and 2 June 2016, Delivers the following judgment, which was adopted on the last ‑ mentioned 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 (“the first applicant”), Mr Ramzi Mohammed (“the second applicant”) and Mr Yassin Omar (“the third applicant”), all three Somali nationals, on 22   October 2008. The fourth application was lodged on 29 July 2009 by Mr   Ismail Abdurahman, a British national who was born in Somalia (“the fourth applicant”). 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 Arani Solicitors, a firm of solicitors based in Middlesex, 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, Mr P. McKell, 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 statements made in those interviews had been used at their trials. 6. The applications were allocated to the Fourth Section of the Court (Rule 52 § 1 of the Rules of Court). On 14 September 2010 the Court decided to give notice of Mr Abdurahman’s application to the Government. 7.     On 22 May 2012 the applications lodged by the first three applicants 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 statements at their trial to the Government. 8.     On 16 December 2014 a Chamber of the Fourth Section, composed of Ineta Ziemele, Päivi Hirvelä, George Nicolaou, Ledi Bianku, Zdravka Kalaydjieva, Paul Mahoney and Krzysztof Wojtyczek, judges, and Françoise Elens-Passos, Section Registrar, gave judgment.   They unanimously declared admissible the applicants’ complaints under Article   6   §§ 1 and 3   (c) concerning their lack of access to a lawyer and the admission of the statements at trial. They held by a majority that there had been no violation of Article 6 §§ 1 and 3 (c) of the Convention. The dissenting opinion of Judge Kalaydjieva was annexed to the judgment. 9.     In letters of 5 and 16 March 2015 Mr Omar and Mr Abdurahman respectively requested the referral of the case to the Grand Chamber in accordance with Article 43 of the Convention. The panel of the Grand Chamber granted the requests on 1 June 2015. 10.     The composition of the Grand Chamber was determined according to the provisions of Article 26 §§ 4 and 5 of the Convention and Rule 24 of the Rules of Court. 11.     The applicants and the Government each filed further written observations on the merits (Rule 59 § 1). In addition, third-party comments were received from Fair Trials International, which had been given leave by the President to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 44 § 3). 12.     A hearing took place in public in the Human Rights Building, Strasbourg, on 25 November 2015 (Rule 59 § 3). There appeared before the Court: (a)     for the Government M r P. McKell,   Agent , Lord Keen of Elie QC, advocate general of scotland ,   Mr D. Perry QC , Mr L. Mably ,   Counsel , Mr R. Macniven ,   Adviser ; (b)     for the first three applicants Mr J. Bennathan QC , Mr J. Bunting ,   Counsel; (c)     for the fourth applicant Mr J. King ,   Ms A. Faul ,     Counsel .   The Court heard addresses by Lord Keen, Mr Bennathan and Mr King and their answers in reply to questions put by the Court. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 13.     The applicants were born in 1978 (Mr   Ibrahim), 1981 (Mr   Mohammed and Mr Omar) and 1982 (Mr Abdurahman). The first three applicants are in detention. The fourth applicant lives in London. A.     Introduction 14.     On 7 July 2005 four suicide bombs exploded on three underground trains and a bus in central London, killing fifty-two people and injuring hundreds more. 15.     Two weeks later, on 21 July 2005, the first three applicants and a fourth man, Mr Hussain Osman, detonated four bombs on three underground trains and a bus in central London. On 23   July 2005 a fifth bomb was discovered abandoned and undetonated in a London park. Mr   Manfo   Asiedu was later identified as the fifth conspirator. 16.     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 necessary for it to explode given the amount of TATP (acetone peroxide, a primary explosive) used as a detonator. The evidence showed that had the concentration of the hydrogen peroxide been higher or the TATP stronger, the bombs would have been viable. 17.     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 nationwide police manhunt began and photographs and the CCTV images of the men were broadcast on national television and published in national newspapers. On 22 July 2005 a young man was shot and killed on the London underground by police after being mistaken for Mr Osman (see Armani Da Silva v. the United Kingdom   [GC], no. 5878/08, 30 March 2016). In the days that followed, 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. 18.     The fourth applicant 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. The police interviewed the fourth applicant in England on 27 and 28 July 2005 and arrested him on the latter date. In separate proceedings, he was tried and convicted of assisting Mr Osman and failing to disclose information after the event. 19.     The details of the applicants’ arrests and initial police questioning are set out more fully below. B.     The first three applicants 1.     The arrests and interviews (a)     Mr Omar 20.     The first of the bombers to be arrested was Mr Omar. He was arrested on 27 July 2005 at 5.15 a.m. at a house in Birmingham. A number of police officers entered the house and found Mr Omar standing in the bathtub, fully clothed and screaming, with a rucksack on his back. The police believed that the rucksack, which was of similar dimensions to those used in the failed bomb attacks, contained a bomb. They shouted warnings before overpowering Mr Omar with the help of a TAZER device and removing the rucksack. The rucksack proved to contain an empty bucket. 21.     Upon arrest, Mr Omar was cautioned by the police using the “new ‑ style” caution (see paragraph 184 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. He was asked if there was anything that he knew of anywhere that could hurt anyone. He answered, “No”. The police officers who accompanied him to the police station in London later gave evidence of a brief interview that took place in the car. According to them, they had asked again about whether there was material anywhere that could harm someone and whether officers needed to worry about anything at his home address, to which he had replied that there was not. Later in the journey, Mr Omar volunteered the following statement: “I was on that tube at the time of the explosions. I did not know it was going to go off, I did not want to hurt anyone ... I did not make the explosives. I was told to collect it. I went to an alleyway near a shop and collected the rucksack.” 22.     Mr Omar arrived at Paddington Green Police Station, London, at 7.20   a.m. At 7.50 a.m. he requested the attendance of the duty 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. Superintendent MacBrayne ordered that Mr Omar be held incommunicado under Schedule 8 of the Terrorism Act 2000 (see paragraphs 187 and 189 below). 23.     Shortly afterwards, Superintendent McKenna directed that a “safety interview” be conducted with Mr Omar. “Safety interview” is the shorthand expression used to describe 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 188-190 and 193-198 below). 24.     At around 8.50 a.m. a doctor was called to examine Mr Omar and the doctor certified him as fit to be interviewed. 25.     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. 26.     At 9.15 a.m. the custody officer at Paddington Green contacted the duty solicitor on behalf of Mr Omar. The duty solicitor was told that he would be contacted again once the booking-in procedure had been completed. 27.     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. The booking-in process finished shortly afterwards. 28.     At 10.24 a.m. the custody officer was told that a further safety interview had been authorised by Superintendent McKenna. 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 reasons continued: “Omar is suspected of detonating an improvised explosive device on a ... train on Thursday 21 July 2005; this was part of an organised simultaneous attack that involved at least three other persons yet to be arrested. The identity of one of these persons has yet to be established and the whereabouts of three is yet to be established. Omar’s premises at 58 Curtis House are believed to have been used to manufacture the improvised explosive material. My suspicion is that Omar and his three (at least) accomplices were attempting to carry out a ‘suicide attack’, killing themselves and any other persons in their immediate vicinity. The other parties to this attack are yet to be apprehended and it is imperative to preserve and secure public safety that they are identified, located and detained prior to attempting to repeat the events of 21 July. The immediate whereabouts of these other persons, the presence of other improvised explosive devices and the identities and whereabouts of ANY other persons involved in the commission, preparation or instigation of acts of terrorism connected to Omar MUST be established to prevent any loss of life or serious damage to property. Awaiting the arrival of a solicitor and permitting any pre-interview consultation before any attempt to establish the above facts WILL cause unnecessary delay to this interview process. I have considered the requirements of PACE [the Police and Criminal Evidence Act 1984] and the associated Codes of Practice and I believe that this course of action is necessary and proportionate. ANY interview with Omar under this authorisation must cease when the risk to life and public safety is averted. In granting this authorisation I have considered Omar’s rights under Article 6 [of the Convention] and believe that this authorisation is both proportionate and necessary for ensuring the Article 2 rights of the public in general.” 29.     There then followed four safety interviews of around forty-five minutes each, with a break of around fifteen to twenty minutes between each one. 30.     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 182 below), namely that he did not need to say anything but that anything he did say might be given in evidence. 31.     Safety interview B commenced at 11.26 a.m. and concluded at 12.11   p.m. Again, Mr Omar was given the old-style caution at the start of the interview. 32.     At around 12.15 p.m. a doctor was called to examine Mr Omar and certified him as fit to be interviewed. 33.     At 12.19 p.m. the duty solicitor was contacted and was told that safety interviews were taking place. 34.     At 12.31 p.m. safety interview C commenced. This time, Mr Omar was given the new-style caution (see paragraph 184 below). It finished at 1.17 p.m. and Mr Omar was given a hot meal. 35.     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. 36.     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. 37.     Meanwhile, at 2.15 p.m., the custody officer contacted the duty solicitor, who indicated that he would arrive at the police station at 3.30   p.m. At 3.40 p.m. the duty solicitor arrived at the custody suite and was allowed to read the custody record. 38.     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 brief 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)     Mr Ibrahim 39.     The next suspect to be arrested was Mr Ibrahim. He was arrested two days later, on 29 July 2005, at 1.45 p.m. in a flat in West London. Mr   Mohammed was also present at the flat. 40.     Mr Ibrahim was given the new-style caution (see paragraphs 21 above and 184 below) and put into a forensic suit. He was asked whether there was any material on the premises which might cause danger to any person. 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 House” because they had been there already. He identified the other man at the West London flat 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 said, “Look, I know you’re trying to link us with 7/7. I’ve seen it on the television. That’s nothing to do with us. I don’t know these people. I’m a Muslim. I can’t tell lies. Okay I did do the bus, but I had nothing to do with 7/7.” The officer replied, “Look, we’re not interviewing you about any of those matters at this stage”. 41.     Mr Ibrahim arrived at Paddington Green Police Station at 2.20   p.m. He requested the assistance of the duty solicitor. 42.     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. the duty solicitor called the police station and asked to speak to Mr Ibrahim. She was told that Mr Ibrahim was unavailable for a consultation. The solicitor called again at 5.40 p.m. and was told that her 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. 43.     At 6.10 p.m. Superintendent MacBrayne 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 gave detailed reasons, as follows: “IBRAHIM is suspected of detonating an improvised explosive device on the London transport system on Thursday the 21st July 2005, this was part of an organised simultaneous attack that involved at least three other persons and I believe was a ‘suicide attack’ and those concerned were intent on killing themselves and inflicting mass casualties on the public. The total extent of those involved is not yet established and other suspects may remain at large ... [I]t is not known at this stage how much explosive was manufactured; where any may still be; or if it is under the control of an individual or individuals who may still conduct a similar attack. It is imperative to preserve and secure public safety that all appropriate measures are taken to identify, locate and detain any other suspects prior to attempting to repeat the events of 21st July. It is necessary to take all proportionate steps to detain any persons engaged in the commission, preparation or instigation of acts of terrorism related to this matter to protect the public, prevent loss of life and substantial damage to property. Awaiting the arrival of a solicitor and permitting any pre-interview consultation before any attempt to establish the above facts WILL cause unnecessary delay to this interview process. I have considered the requirements of PACE and the associated Codes of Practice and I believe that this course of action is necessary and proportionate. ANY interview with Ibrahim under this authorisation must cease when the risk to life and public safety is averted. In granting this authorisation I have considered Ibrahim’s rights under Article 6 ... and believe that this authorisation is both proportionate and necessary for ensuring the Article 2 rights of the public in general.” 44.     At 7 p.m. a different solicitor called the police station and asked to speak to “Ibrahim Muktar Said”. 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 a Mr   Ibrahim was at the police station, she was contacted and told that he was already represented by the duty solicitor. Meanwhile, Mr Ibrahim was seen by the forensic medical examiner and given a hot vegetarian meal. 45.     At 7.58 p.m. Mr Ibrahim was taken from his cell for a safety interview. At the beginning of the safety interview he was given the new ‑ style caution (see paragraphs 21 above and 184 below).   During the interview, he was read the notes of the police officers concerning what he had said during his arrest but he declined to make any comment or to sign them. He 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. When pressed on whether he knew about other people, other devices and other plans, he said that he did not deal with explosives and did not know anyone who did. When further pressed about whether there was “something out there” that could hurt someone, he said that if he knew anything he would tell the police. He repeated that he knew nothing about explosives and that he did not know anyone planning to carry out suicide attacks. 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 the other two 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. 46.     Meanwhile, at 8 p.m. the second solicitor contacted the custody officer and a note was made in the custody record that there was an issue of two solicitors wishing to represent Mr Ibrahim. At 8.15   p.m., the second solicitor called again seeking to speak to him. 47.     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. Around an hour later, Mr Ibrahim said that he did not want the services, at that stage, of the second solicitor. 48.     During subsequent interviews while Mr Ibrahim was in detention, which were conducted in the presence of a solicitor, he made no comment. (c)     Mr Mohammed 49.     The last of the three suspects to be arrested was Mr Mohammed. He was arrested and cautioned, using the new-style caution (see paragraphs 21 above and 184 below), on 29 July 2005 at 3.22 p.m. at the same West London flat as Mr Ibrahim. He was asked whether there was anything inside the flat that could cause harm to police officers or members of the public. He replied, “No”. 50.     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, and the forensic procedure commenced. 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. 51.     Simultaneously, Superintendent MacBrayne 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. The detailed reasons were essentially identical to those given as regards Mr   Ibrahim (see paragraph 43 above). 52.     At 6.59 p.m. the custody officer called the duty solicitor scheme. At 7.16 p.m. the forensic procedure was completed and 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 and shortly thereafter was permitted to return to his cell to pray. 53.     At about 8 p.m. duty solicitors arrived at the front desk of Paddington Green Police Station. 54.     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 paragraphs 21 above and 184 below). He was told that he was suspected of involvement in the attacks of 21 July and that the police were concerned for the safety of officers and the public. They therefore needed information about any further explosives, and the people who had them, that could cause harm to the public in the near future. He replied that he had nothing to do with the events of 21 July and that he knew nothing about them. He did not recognise the photographs of the alleged perpetrators which he had seen in the media and he did not know how to make the explosive devices found. The safety interview finished eight minutes later, at 8.22 p.m. 55.     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. 56.     Two days later, 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.” 57.     Thereafter Mr Mohammed exercised his right to silence. 2.     The trial of the first three applicants 58.     The first three applicants were charged with conspiracy to murder. In September 2006, the defence statements were served. In his defence statement, Mr Omar explained that together with Mr Ibrahim he had devised a plan of constructing a device with the outward appearance of a realistic ‑ looking explosive device but which had been specifically designed only to make a noise. He accepted that he had been involved in constructing the devices detonated on 21 July 2005 and that he was one of the underground bombers. 59.     In his defence statement, Mr Ibrahim accepted that he had detailed knowledge of how to make TATP and concentrated peroxide. He admitted that he had bought most of the ingredients for the bombs, which he said had been designed to make a noise but not to explode because there was insufficient TATP to activate the main charge. He described a meeting at 58   Curtis House with Mr Omar, Mr Mohammed and Mr Osman on 19   July 2005 and explained that Mr   Mohammed and Mr Osman had been given the components that were to be used to make the devices. He maintained that his activating the device on the bus had been a mistake; he had not been able to set it off on the underground because there had been too many people and his escape might have been impeded. 60.     In his defence statement, Mr Mohammed accepted that he had been one of the underground bombers. He admitted that he had carried the device but maintained that he had been given it by Mr   Ibrahim so that it would make a noise and that it was to have been left on the underground train to attract maximum publicity. He said that he had helped move some of the hydrogen peroxide used to manufacture the devices and that, on 21 July 2005, he had mixed the hydrogen peroxide and flour and placed it in a container, thereafter attaching metal washers and screws to the device. 61.     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. The applicants stood trial alongside Mr   Osman, Mr Asiedu (see paragraph 15 above) and Mr   Adel Yahya (accused of taking part in the essential preparation for the attacks). The trial lasted seven months. 62.     The applicants’ defence at trial, as indicated in their defence statements, was that although they had been involved in the events of 21   July 2005 and had detonated the explosive devices, their actions had not been intended to kill but had been 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. 63.     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 as contended by the prosecution. The prosecution sought to rely on the applicants’ answers in their safety interviews to undermine their defence that the events of 21 July were intended as a hoax. (a)     The admissibility of the safety interviews 64.     The first three applicants argued that the admission of the statements they had made during their safety interviews at the police station 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 1984 (“PACE” – see paragraph 201   below). Counsel for Mr   Omar accepted that the police had had good grounds for conducting the interviews as they did. Counsel for Mr Ibrahim claimed that the new-style caution included an element of coercion and that his safety interview had gone beyond its safety purpose. Counsel for Mr Mohammed said that the reasons for the decision to hold a safety interview in his case were incapable of constituting reasonable grounds given the fundamental nature of the right to a lawyer. He questioned whether Mr Mohammed’s safety interview had been an urgent interview at all and argued that the subject matter of the interview had exceeded questioning necessary for securing public safety. 65.     A voir dire (a “trial within a trial” to determine the admissibility of evidence) was conducted. As Mr Omar did not challenge the lawfulness of the safety interviews or the manner in which they were conducted, the prosecution was not required to call evidence in this respect. His entire interview process, and in particular the content of his safety interviews, were taken as read. So, too, was the evidence of Superintendent McKenna, the senior officer in charge of the investigation, and the relevant evidence from the custody records. Evidence was heard from, inter alios , Superintendent MacBrayne, the interviewing officers and the jailer at Paddington Green police station. The judge also heard submissions from counsel. 66.     Superintendent McKenna’s evidence was provided in a statement of 5 October 2006 and was as follows: “Within hours of the incident on 21 July the investigation had discovered possible identities of three of the four principal suspects. The investigation became more complicated over these first few days due to a number of complicating factors. Some of these were as follows: on Saturday 23 July a further improvised explosive device (‘IED’) was discovered by a member of the public apparently abandoned ..., suggesting a potential fifth hitherto unknown suspect attacker. A premises in Enfield was discovered linked to two of the known suspects at that time. A large quantity of precursor chemicals was discovered in the vicinity of these premises. The quantity of chemicals appeared to be far in excess of what would have been required to construct the IEDs used during the attacks on 21 July. It appeared that the suspects from 21 July were in receipt of considerable post-event assistance from other unidentified persons. The net effect of the issues mentioned above was that the need to identify and locate all those involved in the events of 21 st was the overriding priority of the investigation. There existed a very real fear that another attack could be mounted, either by those who had carried out the attacks on 21 st , or by others, acting separately, but under the same control, or in concert with the suspects from the 21 st July.” 67.     Superintendent MacBrayne gave evidence that he had been aware when granting permission to delay legal advice in the case of Mr Ibrahim that solicitors had been in touch with the custody suite. In his decision to delay legal advice, he had considered the period that a consultation might take but had not necessarily addressed the possibility of a telephone conference. As to the delay between the authorisation to conduct a safety interview and the start of Mr Ibrahim’s interview, Superintendent MacBrayne explained that the start time of an interview was a matter for the discretion of the officers. Once he had authorised an urgent interview, it was not realistic in these circumstances to expect him constantly to revisit the issue and determine when the interview was to occur: some decisions were left to the officers at the police station. Superintendent MacBrayne accepted that before the beginning of the safety interview of Mr Ibrahim it might have been possible for solicitors to see him but said that in his experience such conferences could be extremely protracted. He accepted that a meeting with a lawyer could be interrupted or made the subject of time-limits. In respect of Mr Mohammed’s safety interview, Superintendent MacBrayne gave evidence that the need to ask questions was just as great when the interview began as it had been when the interview had been authorised. He explained that he had given the police officers at the station the tools to make the decision as to the precise time the interview should occur. 68.     In his lengthy ruling on the voir dire , the trial judge held that the statements made during the safety interviews could be admitted.   The judge referred at the outset to the explanation given by Superintendent McKenna of the situation which he had faced (see paragraph 66 above). 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. He noted that 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 being detained at the police station. 69.     The judge examined carefully the circumstances surrounding each of the applicants’ arrests and safety interviews. Reviewing, first, Mr Omar’s case, he noted that counsel for Mr   Omar did not allege that the interviews had been oppressive. On the contrary, he said, counsel had accepted that the interviews had been necessary and fairly conducted. The judge noted: “30. On all significant issues, it is admitted Omar, from the outset, did not tell the truth in these interviews and, in the result, he did not in any sense assist the police in their attempt to secure the safety of the public. Indeed, the position is quite the opposite ...” 70.     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 police officers had concentrated on issues that might have revealed information relevant to assisting them to locate people or items that could pose a danger to the public. Although the interviews had been long, it had not been suggested by counsel that the police had exceeded the requirements of what was necessary and it had been acknowledged that the lines of questioning were relevant to public safety issues. 71.     As regards Mr Ibrahim, the judge again reviewed in detail the circumstances of his arrest and questioning and noted: “48. ... There were 18 detainees, all arrested for suspected involvement in the events of 21   July ... [T]he overall picture is of an extremely busy police station, and I accept unhesitatingly that it was impractical to enable a telephone conversation to take place between [the duty solicitor] and Ibrahim at the time of her two calls ... The custody sergeants understandably gave priority to ‘face-to-face’ conferences ... and it was not a realistic option to leave a room free with a telephone socket for telephone conversations with lawyers. [The custody sergeant] accepted, however, that there had been a breakdown in communication in telling the interviewing officers that [the duty solicitor] was trying to get through to Ibrahim on the telephone.” 72.     The judge noted that the police had approached the issue of undiscovered items from a number of different directions but that at all times Mr Ibrahim had maintained that he did not know of any planned attacks for the future or hidden explosives. 73.     The judge then examined the circumstances of Mr Mohammed’s arrest and questioning by the police. As regards the gap between his arrival at the police station and the start of his safety interview, the judge referred to Superintendent MacBrayne’s evidence (see paragraph 67 above). 74.     The trial judge next referred to the statutory framework governing access to legal advice for those held under terrorism legislation (see paragraphs 188-190 and 193-198 below), which made it clear that where a suspect was interviewed without legal assistance, the old-style caution had to 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 195 below). However, the judge 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, first, 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; and, second,