TrustHLT/LaCour huggingface dataset:
Luis López Guerra (Judge): However, I would like to some explanation why the government considered there were not compelling reasons for not cautioning the three first one, but there were compelling reasons for not cautioning the fourth one.
Luis López Guerra (Judge): What was the difference between the three first applicant and the fourth applicant in this respect?
Guido Raimondi (JudgeP): Now the court will rise for some minutes.
Guido Raimondi (JudgeP): We can resume at 11.15, following which the parties will return for a second round of short pleadings to respond to submissions in the first round and to the questions raised by the judges.
Guido Raimondi (JudgeP): The hearing is now resumed, and I call Mr. Bennathan.
Guido Raimondi (JudgeP): Mr. Bennathan, please, you have the floor.
AP1 (Applicant): Can we start with addressing Judge Sarger, the Vice President's question?
AP1 (Applicant): In a word, in a sentence at least, self-incrimination we say clearly is now implicit, read into Article 6 by a series of cases.
AP1 (Applicant): And as we deal with the difference between self-incrimination and other circumstances, and as the trial judge touched upon it as well in the applicant's case, would make this submission in passing, it cannot be right, we would say, that there are different sets of rules depending whether the unrepresented person being interviewed makes a self-incriminating comment, whether they tell lies, whether they remain silent, or whether they speak but fail to set out the basis of their later defense.
AP1 (Applicant): This is already, with great respect, a complicated area to have four sets of rules, depending how you analyze the answers, would be a hopeless complication to introduce further.
AP1 (Applicant): The European Charter, it is true, of course, that 3.6 of the Charter has a derogation,
AP1 (Applicant): perhaps more tightly drawn, to the absolute right, the otherwise absolute right to have a lawyer present at interview.
AP1 (Applicant): Of course, that's correct.
AP1 (Applicant): Salders gets to the same place.
AP1 (Applicant): Forgive me, that's a very clumsy phrase.
AP1 (Applicant): Salders is not perhaps so strictly contained, but it has the same effect.
AP1 (Applicant): Normally there will be a lawyer.
AP1 (Applicant): There may be circumstances when there may not be, albeit Salders doesn't require a formal derogation.
AP1 (Applicant): But the European Charter is silent as to what happens next.
AP1 (Applicant): If one gets outwith the normal central right of representation, what happens next?
AP1 (Applicant): And we say the second half of paragraph 55 in Salders, to which I will turn in but a moment or two, gives the answer.
AP1 (Applicant): And we say that answer is there is a principled position.
AP1 (Applicant): No lawyer at interview, even if that is justified, the fruits of that interview should not be at trial.
AP1 (Applicant): And before leaving the European Charter, I would make this point.
AP1 (Applicant): The reason given for all the occasions when there can be a derogation and interview without lawyer are not gathering evidence in urgent cases.
AP1 (Applicant): They are the protection of life and limb and the avoidance of danger.
AP1 (Applicant): So as with the position in the United Kingdom, the justification for forcing an interview without a lawyer is not to gather evidence, but now in this case the United Kingdom are arguing having been allowed to breach the normal rule, they may now take advantage of that breach, albeit that wasn't the reason they were allowed to avoid the normal rule to start with.
AP1 (Applicant): Judge Spano asks us, and we quite understand why the question is asked, whether we abandon the position of saying there was compelling, there was no compelling reason.
AP1 (Applicant): May I avoid the judge's question like this, it will seem, by saying firstly, you have our written submissions.
AP1 (Applicant): Secondly, we say this court can revisit the question of whether the trial court or the domestic appellate court was right or wrong to make those factual rulings.
AP1 (Applicant): And there are numerous examples of this court and section courts of this, of the European court, going behind the findings of courts.
AP1 (Applicant): We would simply pose this question.
AP1 (Applicant): Given in some of these safety interviews there were lawyers in the police station, there were lawyers in the police station which is in central London, waiting, asking to be admitted, where really was the harm in having a lawyer there when the safety interview is then conducted?
AP1 (Applicant): But as the court has noticed, and as Judge Spano obviously notices, the main thrust of our argument today has been, even if the court concludes there were compelling reasons, what should happen next?
AP1 (Applicant): And with great respect, the results of the decision the Grand Chamber reaches in due course will be a historical footnote, an anomaly on the certain circumstances in July 2005 in London, but they will have a lasting resonance and importance on what happens henceforth throughout member states with the fruit of unrepresented interviews.
AP1 (Applicant): And that is why it seems to us, with great respect, that should be the central thrust, the central point of the submissions we make today.
AP1 (Applicant): The case of Magee, the question was not directed at us in particular, but in passing we do note Magee, a Northern Irish terrorist case, of course.
AP1 (Applicant): The court found a violation from the denial of access to a lawyer in excess of 48 hours.
AP1 (Applicant): The court, this court, acted on the factual basis found by the trial court, no ill treatment, and the confessions were voluntary.
AP1 (Applicant): In Magee, the United Kingdom argued exactly as the United Kingdom argues today, namely that the rights were adequately protected at trial because there were lawyers, there was elaborate argument, there was a long ruling by the judge allowing the fruit of Magee's detention, the fruit of his confession in.
AP1 (Applicant): And the court found a violation because, with respect, the court always has to be able to look behind the elaboration, the words, the layers of procedure to get to the substance if practical and effective rights are to be guaranteed.
AP1 (Applicant): The United Nations Resolution 2249 of 2015, we accept this is a difficult time for anyone to be talking about terrorism and the rights of those accused of terrorist offenses.
AP1 (Applicant): But we do note nowhere in Resolution 2249 does it speak of Article 103, the fair trial right, of course, being in any way touched or affected by that resolution.
AP1 (Applicant): Indeed, paragraph 5 of the resolution says member states have to take all measures, quote, in compliance with international law.
AP1 (Applicant): And we will say the effect of that, with great respect, is that fair trials must survive even the most difficult of times.
AP1 (Applicant): The government, in their submissions of my learned friend, Lord Keane, suggested that to have a bright line rule is, quote, unprincipled.
AP1 (Applicant): Well, the International Covenant on Civil and Political Rights has a bright line rule.
AP1 (Applicant): The United States of America has a bright line rule.
AP1 (Applicant): So that is perhaps the majority of the planet, one way or another, lives within bright line rules in this area of the law.
AP1 (Applicant): So are they really also unprincipled?
AP1 (Applicant): Or is it perhaps more sensibly expressed?
AP1 (Applicant): There is a principle.
AP1 (Applicant): The United Kingdom don't like it, a rather different proposition.
AP1 (Applicant): Second part of Sowler's paragraph 55, what does in principle mean?
AP1 (Applicant): Mr. President, we say that the Grand Chamber has a simple
AP1 (Applicant): choice here.
AP1 (Applicant): It can either interpret in principle as saying it's a principle that matters and must be observed, or it can use it to water down the second part of paragraph 55 and say it's a general principle that can be avoided, really, on many, many occasions.
AP1 (Applicant): We suggest it should be the former.
AP1 (Applicant): We suggest in principle should mean this is a principle being laid down by this court for member states to follow to protect important rights.
AP1 (Applicant): And therefore, we have no examples to offer of occasions when that protection should be avoided.
AP1 (Applicant): My last two points are these.
AP1 (Applicant): It was suggested by my learned friends for the fourth applicant and perhaps with respect within Judge Motok's question that in times of terror, we somehow stop affording human rights to those accused of serious offenses, those accused of terrorist offenses.
AP1 (Applicant): We would say with great respect, unfashionable and unpopular, though it may be to mount these arguments, actually, in times of stress, in times of terror, it is exactly when those of us who are concerned with human rights with great respect should be most on our guard to make sure those human rights are protected.
AP1 (Applicant): Salda's was a case linked to the PKK, a vast loss of life in Turkey.
AP1 (Applicant): McGee was a terrorist case.
AP1 (Applicant): And Ushakov and Ushakov in Ukraine, the court stressed, these principles are particularly called for in the case of serious charges.
AP1 (Applicant): But herein with respect lies the balance.
AP1 (Applicant): Herein lies the balance.
AP1 (Applicant): The stress and the urgency of their moment is highly relevant to where there is a compelling reason to have the interview without lawyers in the first place.
AP1 (Applicant): But the safety of the nation is simply not guaranteed by having an unfair trial six, 12, 18 months down the line.
AP1 (Applicant): There, we say, is the place in the balance that the stresses of awful current events can play a part.
AP1 (Applicant): Finally, our central submission is the approach of the fourth section is profoundly dangerous in adopting what we say is a novel test, namely if there is lots of other evidence, the weight of the other evidence, then breaches of articles don't matter.
AP1 (Applicant): Indeed, they don't even, they haven't even occurred.
AP1 (Applicant): In his lucid submissions to you, my lone friend Lord Keane spoke of the impugned interviews in this case of being, quote, not the central platform.
AP1 (Applicant): So the fourth section say there was lots of evidence.
AP1 (Applicant): The United Kingdom say they weren't the central platform.
AP1 (Applicant): The trial judge said the evidence was of, quote, high relevance.
AP1 (Applicant): The court of appeal say if they were admitted, they were sufficient on their own to utterly undermine the defense.
AP1 (Applicant): Where is the principle, where is the practical, effective guarding of the human rights guaranteed under the convention if we have these varying tests that will be adjudged by different judges and different appellate courts throughout the member states on different levels?
AP1 (Applicant): It must be, we say, it must be that the effective and practical guarantee of rights demands simple, clear rules.
AP1 (Applicant): And those simple, clear rules are the bright line rule, and those simple, clear rules are the principle set out in the latter half of paragraph 55 of Solders, and we say it is as simple as no lawyers in interview, no subsequent use of the fruits of that interview.
Guido Raimondi (JudgeP): I call Mr. King, please.
AP2 (Applicant): Thank you, Mr. President. The government's approach seems to have been that they don't
AP2 (Applicant): want anything too hard edged, was the expression that was used. Now, what they seem to want,
AP2 (Applicant): and certainly what seemed to occur in the case of the fourth applicant, was it certainly wasn't hard edged. If anything, it was complete jelly. Nothing, none of his rights were in
AP2 (Applicant): fact applied. He was not even offered a safety interview. He was not made aware that he was
AP2 (Applicant): a suspect by giving a caution, even in the absence of a lawyer. They continued for a
AP2 (Applicant): ten hour stage to interview him without a lawyer, and in effect, leading him to believe he was being interviewed as a witness. Now, clearly, the saldest point in which one grapples
AP2 (Applicant): with when there can be exceptions or when a confession can be admissible, there are circumstances when that does happen. For example, in a properly controlled and properly staged
AP2 (Applicant): interview with lawyers present and tape recording and all the rest of it, people sometimes do make a confession. They say, yes, I did that. Now, that clearly would be potentially an
AP2 (Applicant): admissible piece of evidence at a trial. There are other less clear cases, and it is a difficult
AP2 (Applicant): area where people, maybe in a casual conversation with a police officer or someone else, make a confession to an offence where there has been no pressure on them or no circumstances that make it iffy. Again, that can be admissible and has been fairly admissible.
AP2 (Applicant): But certainly, to have some degree of control over the process, there must be rules which, in general terms, the police and the state have to abide by. There has to be some level
AP2 (Applicant): of bite to the system, where they cannot just ride roughshod over every right that a suspect or a person who is suspected of a crime has. If that were the case, even in the most compelling
AP2 (Applicant): of circumstances—and I do not suggest that there cannot be circumstances when there are compelling reasons why it might be important for a lawyer to move ahead and get some information—having done that and having ridden roughshod over the suspects' rights, does it become right then to prosecute them? That is the problem. Can you then prosecute and use that information
AP2 (Applicant): where you have abused the rights of a person to obtain the information and he has made a confession? Does it ever become right then to prosecute that person based on that?
AP2 (Applicant): That principle is established in §52, where the court considers that in the circumstances of the case it was incumbent on the police to inform the applicant of the privilege against self-incrimination and the right to remain silent. That principle has been very carefully
AP2 (Applicant): guarded within the European tradition—the right against self-incrimination—because of abuses that have taken place historically. That is a right that no doubt this court will
AP2 (Applicant): want to uphold. To allow any form of Government-backed initiatives that deny the rights, either by
AP2 (Applicant): trickery or by deceit, as we say happened in this case, must not be allowed. There must
AP2 (Applicant): be a hard edge to that. It cannot be jelly. We realise that the court is grappling with
AP2 (Applicant): very difficult circumstances where there may be compelling reasons to deny fundamental rights. That has to be balanced against a complete derogation of all rights in any circumstances
AP2 (Applicant): without having some procedural processes whereby there is some degree of protection. Even recording,
AP2 (Applicant): as one of the judges mentioned, was not done in the case of the process. The process was
AP2 (Applicant): not even recorded. What was the thinking and any kind of attempt to deal with the processes
AP2 (Applicant): that were in place? It was not thought about. There seemed to be panic, if anything. That
AP2 (Applicant): is not an appropriate circumstance to allow a confession to be admitted against a person in his final prosecution.
Guido Raimondi (JudgeP): Now, Lord Keen, please.
GR1 (Government): Could I address the questions more or less in the order in which they were posed?
GR1 (Government): First of all, Judge Motok raised the question of abuse of process and its place in the present context.
GR1 (Government): The chamber dealt with the question of abuse of process in its judgment at paragraphs 122 to 123, and more particularly at paragraph 129, where it referred to the Court of Appeals judgment at paragraph 39.
GR1 (Government): The short point is this.
GR1 (Government): If there had been an abuse of process, that would have stayed the proceedings.
GR1 (Government): They would never have proceeded as far as a voir dire over the admissibility of the evidence at all.
GR1 (Government): But that was not this case.
GR1 (Government): It was determined that there had been no abuse of process.
GR1 (Government): Such an abuse could have arisen where, for example, some inducement had been given to one of the applicants to give evidence or to make a statement against interest.
GR1 (Government): But that was not, as I say, this case.
GR1 (Government): Could I turn to Judge Spano's questions?
GR1 (Government): And he draws the distinction between the first, second, and third applicants on the one hand, and the fourth on the other.
GR1 (Government): As a matter of principle, we submit that the cases can and should be dealt with together.
GR1 (Government): But I would acknowledge that in the case of the fourth applicant, there was a factual distinction.
GR1 (Government): Because, of course, he was originally interviewed as a witness, not as a suspect.
GR1 (Government): And for that reason, the procedures pursuant to Pace were not carried out in the first instance.
GR1 (Government): However, there came a point in time when the police became concerned that he would or was incriminating himself.
GR1 (Government): And the question of caution arose.
GR1 (Government): And a decision was made not to administer that caution in order to seek further information about the danger of the further bomb cases.
GR1 (Government): I accept that at that point, there should have been a contemporaneous record made in respect of the fourth applicant.
GR1 (Government): And it wasn't made.
GR1 (Government): What I would say is that the police officers who were engaged in that process did then give evidence in the voir dire as to the circumstances.
GR1 (Government): And that evidence was before the court when it came to its final determination.
GR1 (Government): But I accept that there was, I think the term used was an anomaly.
GR1 (Government): There was, in that sense, an anomaly.
GR1 (Government): Because there should have been a contemporaneous written record when the caution was not administered, explaining why it had not been administered.
GR1 (Government): And that was not done.
GR1 (Government): But that, in and of itself, we would submit, does not constitute a breach of Article VI.
GR1 (Government): It goes to an evaluation of the overall fairness of the admissibility of the relevant evidence.
GR1 (Government): If I can then turn to the questions from the Vice President, Judge Sladio.
GR1 (Government): He raised the question as to who should determine whether or not there existed compelling reasons for proceeding as was done.
GR1 (Government): It is, of course, in the first instance for the domestic court or courts to make that determination.
GR1 (Government): That is not to say that this court has no place in respect to that matter.
GR1 (Government): This court should respect the decision made by the domestic courts.
GR1 (Government): And it should only seek to interfere where it considers that the decision of the domestic court was clearly erroneous or wrong.
GR1 (Government): It is not for this court, in my respectful submission, to embark upon a fact-finding exercise that supersedes that of the domestic tribunal.
GR1 (Government): The second matter raised by the Vice President concerned the point about the availability of lawyers at the time of the safety interviews.
GR1 (Government): That point was addressed by the chamber at paragraph 200 of their judgment.
GR1 (Government): But the point was shortly put in this way.
GR1 (Government): There was a risk of the leak of information into the public domain if those lawyers were present.
GR1 (Government): And it is not because, as a dissenting judgment in the chamber suggested, that the lawyers were being breached of their professional obligations.
GR1 (Government): The mere fact that the judges had attended upon one of the applicants and reported back to their office where they had been would be sufficient to allow a leak into the public domain that Mr. Omar or one
GR1 (Government): of the other applicants was being held at Paddington Station in the context of the outrages that had occurred in London at that point in time.
GR1 (Government): There are any number of examples of how that could have occurred.
GR1 (Government): And it's certainly not dependent upon any lawyer being in breach of his professional obligations.
GR1 (Government): It's a mere fact that he would, for example, return to his office and explain where he had been or what he'd been doing for the past three, four, or five hours.
GR1 (Government): And that is why, although at least in one instance there was a lawyer available at the point when a safety interview was being carried out, they were not admitted to the safety interview.
GR1 (Government): The vice president also raised the question about Magee, the Northern Ireland case.
GR1 (Government): Magee was a case where there was coercion and complaints of ill treatment.
GR1 (Government): And this court held that there had clearly been coercion in the context of the applicant having been held for a period of about 48 hours during which ill treatment had been administered and a statement had been given.
GR1 (Government): That, in my respectful submission, is not this case at all.
GR1 (Government): Indeed, it is noticeable that in the case of the first three applicants, the statements made were exculpatory and in no sense, on the face of it, incriminatory.
GR1 (Government): The vice president also raises the matter of self-incrimination.
GR1 (Government): And of course, self-incrimination and guarding against self-incrimination does have a central role in the context of Article VI.
GR1 (Government): No one would dispute that.
GR1 (Government): I allude to the decision in the case of Saunders and the United Kingdom.
GR1 (Government): But as distinct from Saunders in the present case, there was no compulsion in this case with regard to the statements being given.
GR1 (Government): And therefore, I would submit that the issue of self-incrimination does not directly arise.
GR1 (Government): Could I turn then to Judge Lemons, who raised a question about the interpretation of paragraph 55 of Saldus, essentially for malignant friends, but invited examples to be given of where exceptions would not violate fairness and when it would violate overall fairness.
GR1 (Government): And of course, it's a fact-sensitive exercise.
GR1 (Government): But one can see that, for example, where you were dealing with an applicant who was a juvenile or a vulnerable person who made a confession that was later retracted, there could be a situation in which it would violate overall fairness for such a statement to be admitted when it had been given in the absence of legal advice.
GR1 (Government): But I seek to give only one example, because it is essentially a fact-sensitive exercise in my submission.
GR1 (Government): Can I turn then to Judge Guerra and the question he posed with regard to the fourth applicant.
GR1 (Government): And it is correct to say that no caution was given in the case of the fourth applicant.
GR1 (Government): But the factual matrix was different in the case of the fourth applicant.
GR1 (Government): The fourth applicant was invited in to give a statement as a witness and did give a statement as a witness.
GR1 (Government): During the course of that statement, the police became concerned that he was or was about to, in some sense, incriminate himself.
GR1 (Government): And then a decision was given pursuant to the situation on the ground and the need for further intelligence that a caution would not be administered.
GR1 (Government): And there were compelling reasons for that, as was found by the court at first instance, acknowledged by the Court of Appeal, and found by the chamber.
GR1 (Government): And at the end of the day, it is also to be noted that the fourth applicant, once he had legal advice, adopted the statement he'd already given.