TrustHLT/LaCour huggingface dataset:
AP1 (Applicant): So one can see that in Yoldas, the comments made without lawyers could be seen as irrelevant to the later convictions.
AP1 (Applicant): And we note in passing that Yoldas has been relied upon by two subsequent judgments, never on this point, purely about waiver of rights.
AP1 (Applicant): In Saldas, this court found a violation after making the point that the comments made without lawyers had played a part in the conviction.
AP1 (Applicant): In Zachenko, the court made the same point.
AP1 (Applicant): We suggest, with respect, the proper question about the evidence at an applicant's trial, following the same analysis as Lord Hope, is were the impugned answers significant evidence at the applicant's trial?
AP1 (Applicant): In this case, the answer to that question is clear.
AP1 (Applicant): The safety interviews were, in the words of the trial judge, quote, of high relevance, unquote, to the central question raised in the trial.
AP1 (Applicant): The court of appeal in the applicant's case said, quote, if the records of the police interviews were properly admitted, they were sufficient on their own to utterly undermine, unquote, the defense at trial.
AP1 (Applicant): The second problem with relying on the strength of the other evidence is that evidence can grow or contract over time.
AP1 (Applicant): If the fourth section was correct in their analysis, then whether or not there was a violation of Article VI could come and go retrospectively, depending how the evidence unfolds.
AP1 (Applicant): This is not a theoretical point, Mr. President.
AP1 (Applicant): In the linked case of Acehedo, who was a defendant at the applicant's original trial, in the linked case of Acehedo in the court of appeal earlier this year, it was revealed that the key prosecution scientific witness at the applicant's trial had been criticized in writing by other government scientists.
AP1 (Applicant): And those documents, those criticisms, were not made known to the defense at trial, when according to Lord Hughes in Acehedo earlier this year, they were, quote, clearly disclosable and plainly they should have been, unquote.
AP1 (Applicant): Yet because that evidence, now cast in doubt, was before the trial court on the reasoning for the fourth section, it cured the violation of Article VI.
AP1 (Applicant): Third and finally on this subject, if it's the court's purpose to guard the rights guaranteed by the convention so they are practical and effective, what is the effect of introducing a weight of the evidence test in place of the bright line test?
AP1 (Applicant): With a weight of the evidence test, it becomes open to any prosecutor to argue that although an accused should have had legal representation at interview, the rest of the evidence is really very compelling and therefore the interview comments should be admitted.
AP1 (Applicant): And it's open to any member state's trial or appellate court to allow such interviews into evidence on the same basis.
AP1 (Applicant): In one of the cases relied upon by the fourth section, Sochenko, this court commented, I quote, it is not the court's role to examine whether the evidence in the present case was correctly assessed by the national courts.
AP1 (Applicant): If one combines the fact this court is not going to undertake a re-evaluation of the weight of the evidence with the fourth section's ruling that the weight of the evidence can avoid a violation, well, what is left of the effective supervisory functions of this court?
AP1 (Applicant): What is left of the protection offered to arrested people?
AP1 (Applicant): Mr. President, the alternative, and of course,
AP1 (Applicant): it's what we urge upon this court, is to reinstate the simple, clear protection that so many courts thought was established in Saldus.
AP1 (Applicant): Lawyer present except in exceptional circumstances.
AP1 (Applicant): If no lawyer is present, no use of the interviews permitted at trial.
AP1 (Applicant): Simple, easy to comprehend, and effective.
AP1 (Applicant): Mr. President, finally, we address three observations
AP1 (Applicant): to the position and the stance of the United Kingdom government.
AP1 (Applicant): Firstly, the United Kingdom's entire justification for the safety interview regime is that its purpose is non-evidential.
AP1 (Applicant): It is solely to seek to identify real and immediate dangers.
AP1 (Applicant): If that is the only reason for carrying out these interviews, it can scarcely be unfair to limit the use of such interviews to the purpose that justified them in the first place.
AP1 (Applicant): Second, in gratefully adopting the reasoning of the fourth section, as the United Kingdom government does, the government argues this was a case where there was ample other evidence of guilt, and therefore, there was no violation of Article 6 by their introduction of the interviews, nor would there be in other such cases.
AP1 (Applicant): Legally speaking, the absurdity of that position is that it's only in cases where they add very little, or where they amount to further evidence when there's already plenty, that these unrepresented interviews should be allowed into evidence.
AP1 (Applicant): To be intellectually consistent, the government must be saying that these interviews should be admitted when they're not needed by the state to prove its case, but not admitted when they are needed by the state to prove its case.
AP1 (Applicant): Legally, as we say, absurd.
AP1 (Applicant): Mr. President, finally on the United Kingdom's stance,
AP1 (Applicant): the dangers of not establishing a bright line rule are evident both in the United Kingdom courts and in the arguments set out by the government for these proceedings.
AP1 (Applicant): In the United Kingdom courts, safety interviews are now being adduced at other trials.
AP1 (Applicant): In July at the Central Criminal Court, just for an example, once all the relevant authorities, including the fourth section judgment in this case, were placed before a high court judge, in came the safety interviews carried out without a lawyer present.
AP1 (Applicant): No clear rule, no protection.
AP1 (Applicant): Mr. President, in the government's argument
AP1 (Applicant): to this court, the government's written submissions, it is said at paragraph 53 that even if there was denial of representation for no proper reason, it would still be possible for them to be relied upon at trial.
AP1 (Applicant): I started these submissions with one English saying.
AP1 (Applicant): I draw to a close with another.
AP1 (Applicant): Give them an inch and they will take a mile.
AP1 (Applicant): Mr. President, we do not for a moment
AP1 (Applicant): underestimate the controversy of cases such as these, where those denounced as terrorists seek the protection of this court for their human rights.
AP1 (Applicant): Yet, with the greatest of respect, it is only by guaranteeing practical and effective rights in the most serious cases that the rights of hundreds of millions of citizens of all member states are given the protection that the convention demands.
Guido Raimondi (JudgeP): Thank you very much Mr. Bennathan.
Guido Raimondi (JudgeP): I call Mr. King.
Guido Raimondi (JudgeP): Mr. King please.
AP2 (Applicant): Mr. President, in the case of the fourth applicant,
AP2 (Applicant): Mr. Abdirahman, the United Kingdom government
AP2 (Applicant): accepts that there were significant breaches of the codes of practice laid down by the Police and Criminal Evidence Act, including failure to caution, failure to inform him of his right to access to a lawyer, failure to tape record the interview, and a failure to adopt the safety interview provisions.
AP2 (Applicant): The fourth applicant was, therefore, deliberately questioned unlawfully for more than 10 hours, despite the interviewing officers considering him to be incriminating himself.
AP2 (Applicant): They knew he was a suspect with one hour of questioning him.
AP2 (Applicant): And this, again, is accepted by the United Kingdom.
AP2 (Applicant): In the false belief, therefore, that he was a witness for the prosecution, the fourth applicant continued to give detailed, self-incriminating information to the police from 6.15 PM on the 27th of July, 2005,
AP2 (Applicant): until 5 AM on the 28th of July, 2005.
AP2 (Applicant): Moreover, the interviewing officers stated at trial that they conveyed the impression to him that he would be released at the end of his witness statement when he had signed it.
AP2 (Applicant): The fourth applicant, therefore, acted on that representation and made a confession that was eventually recorded by the police in the form of a witness statement.
AP2 (Applicant): European case law and the European Parliament's directive recognize the right to silence and the right of access to a lawyer at the very, these two rights are at the very essence of a fair trial, as we've just heard from Mr. Benetton.
AP2 (Applicant): The right of access to a lawyer can be derogated in a very limited way.
AP2 (Applicant): Firstly, when there are compelling reasons and the derogation of that right is restricted to matters of national security and it's temporary.
AP2 (Applicant): The directive does not derogate the right to remain silent.
AP2 (Applicant): Trespassing slightly on Mr. Benetton's case,
AP2 (Applicant): and I'm sure he'll forgive me too, Yasser Omar, the third applicant, was the first to be arrested.
AP2 (Applicant): He was then subjected to five separate safety interviews.
AP2 (Applicant): These occurred on the 27th of July prior to the fourth applicant being questioned as a witness by the police.
AP2 (Applicant): As a direct result of the directives as a direct result of Yasser Omar's failure to give any information to the police, they decided to breach the fourth applicant's convention rights.
AP2 (Applicant): This course of action, we say, cannot amount to a compelling reason to derogate from the fourth applicant's rights.
AP2 (Applicant): Even if there were compelling reasons to restrict the right of the fourth applicant or his rights, the restriction of his rights should have been restricted to a safety interview under the domestic legal framework existing at the time and should have been temporary.
AP2 (Applicant): On the contrary, the fourth applicant was not even made aware that he was a suspect.
AP2 (Applicant): He was deliberately and dishonestly misinformed that he was a witness.
AP2 (Applicant): It was therefore not realistic that he should consider making a request for the assistance of a lawyer while making this statement, contrary to the observations made by the fourth section in the December judgment 2014.
AP2 (Applicant): Therefore, the manner in which the police treated the fourth applicant was a flagrant breach of the principles of European case law, Article 6, and the directive.
AP2 (Applicant): We now move on to the use made of the statement at trial.
AP2 (Applicant): The offense of assisting an offender particularized six acts of assistance that the applicant was alleged to have given to Mr. Osmond.
AP2 (Applicant): As a matter of interest, the trial judge directed the jury that they need only be satisfied so that they feel sure that he carried out one of these acts in order to convict him.
AP2 (Applicant): The evidence in respect of the first three particularized acts were offering Hussain Osmond accommodation in London, providing him with accommodation and food at 61 Newport Street, London, and providing him with fresh clothing.
AP2 (Applicant): These three acts were established mainly upon his witness statement.
AP2 (Applicant): But even more significantly, the information given in the witness statement formed the sole basis for the prosecution's case against the fourth applicant in respect of the three offenses of failing to disclose information about the other bombers, namely Muqtar Ibrahim, Yasser Omar, and Ramzi Mohammed.
AP2 (Applicant): Therefore, the observations made at paragraph 216 of the judgment of the fourth section are factually inaccurate and wrong.
AP2 (Applicant): Where it was said, it is significant that the contents of the fourth applicant's witness statement support the contention that the police interview is not directed at establishing the extent of his own role in the commission of a criminal offense, but obtaining details about the terror plot and planning, identifying the alleged bombers and those who are providing them with assistance, and ascertaining the whereabouts of Osmond.
AP2 (Applicant): Far from being an information gathering exercise, that witness statement went to the very heart of the prosecution's case against the fourth applicant.
AP2 (Applicant): Indeed, it was all there was in relation to the three offenses of failing to provide information.
AP2 (Applicant): And of course, this is further demonstrated in the trial process, where the prosecution relied upon the witness statement as a confession.
AP2 (Applicant): It's artificial to place reliance on what's been described as corroborative evidence to uphold a conviction in this case, where the main prosecution evidence stemmed from the witness statement.
AP2 (Applicant): For example, the corroborative evidence in respect of the fourth applicant obtaining a passport from Mr. Hossein Osmond
AP2 (Applicant): was based largely upon the self-serving evidence of a co-defendant, Mr. Sharif, who
AP2 (Applicant): was disbelieved by the jury as he was convicted, and Mr. Osmond, his brother, who gave evidence
AP2 (Applicant): as a convicted terrorist.
AP2 (Applicant): And the only other piece of evidence was inconclusive cell site evidence.
AP2 (Applicant): Likewise, the significance of a camera obtained by the applicant from Mr. Osmond
AP2 (Applicant): only makes sense in the context of his witness statements.
AP2 (Applicant): It would be highly speculative to conclude that the applicant would have been convicted without the use of the witness statement.
AP2 (Applicant): In addition, it's very relevant that the witness statement dealt with the reasons why the fourth applicant allowed Hossein Osmond to stay in his flat.
AP2 (Applicant): On any view, the witness statement cannot be regarded as being restricted to a need to obtain, as a matter of critical urgency, information on any further planned attacks and the identities of those potentially involved in the plot.
AP2 (Applicant): The witness statement specifically deals with the fourth applicant's state of mind, and thereby provided the mental element of the alleged offenses.
AP2 (Applicant): The legislative framework in place to govern the admissibility of the witness statement and the subsequent criminal proceedings failed to adequately safeguard the fourth applicant's rights because the statement was admitted.
AP2 (Applicant): The judge, in summing up to the jury, said, breach of the code, however, does not lead to automatic rejection as evidence of a written statement made by a witness, who later is made a defendant.
AP2 (Applicant): If you are sure that despite the breaches of the code, the statement was freely given in the sense that he would have said those things, whether or not he was cautioned, and even if all the rules in the code had been followed and that it was true, then you will take it into account when considering your verdicts in relation to Abdirahman, the fourth applicant.
AP2 (Applicant): If a citizen's fundamental rights can be violated in the manner as they were in this case, then the executive power can act unlawfully, knowing that the evidence obtained will be admitted at trial, thereby circumventing fundamental convention rights.
AP2 (Applicant): The case of the fourth applicant can be distinguished from the cases of the first three applicants, both legally and factually.
AP2 (Applicant): The witness statement was self-incriminating.
AP2 (Applicant): In the case of the first three applicants, the safety interviews were exculpatory.
AP2 (Applicant): The first three applicants were given safety interviews.
AP2 (Applicant): Mr. Abdirahman was not.
AP2 (Applicant): This right was denied to the fourth applicant.
AP2 (Applicant): At paragraph 213 of the Chamber Justice Act, of the judgment of the fourth section, the court found that there was careful application of that legislative framework by the police in the three applicants' cases.
AP2 (Applicant): Unlike the fourth applicant, the first three were aware that they were suspects, and they were questioned under caution.
AP2 (Applicant): The safety interviews were conducted on the sole basis of the need to obtain the information.
AP2 (Applicant): The first three applicants were involved in acts of terrorism.
AP2 (Applicant): Therefore, in our submission, there are a greater number of violations of the fourth applicant's convention rights, and the violations were more serious and flagrant.
AP2 (Applicant): We recognize the immense degree of public revulsion, which has quite properly attached itself to terrorist activities.
AP2 (Applicant): However, it is significant that in taking into account the circumstances of the offense, the court should take into account the personal circumstances of the fourth applicant, as each case must be viewed on its own particular facts.
AP2 (Applicant): The fourth applicant has not been involved in the preparation for or the commission of a terrorist act.
AP2 (Applicant): He did not have prior knowledge of the attempted bombings.
AP2 (Applicant): He was not part of a matrix of people who were involved in the preparation or commission of acts of terrorism.
AP2 (Applicant): There was no evidence that the fourth applicant had extremist views and supported suicide bombings.
AP2 (Applicant): It is accepted by the United Kingdom that it was a chance meeting between the fourth applicant and to St. Osman that drew him into the criminal justice
AP2 (Applicant): process.
AP2 (Applicant): While it is true to say that great weight must be attached to the nature of offenses involved in this case, this balance, again, against the conduct of the police must be maintained.
AP2 (Applicant): They deceived the fourth applicant into believing that he was a witness for the prosecution.
AP2 (Applicant): They purposefully breached his right to remain silent and his privilege against self-incrimination.
AP2 (Applicant): They denied his right of access to a lawyer and thereby acted unlawfully.
AP2 (Applicant): In our submission, these breaches were blatant and extremely serious.
AP2 (Applicant): There was a total disregard to the rules governing the treatment of a suspect.
AP2 (Applicant): Such conduct on the part of those who are responsible for criminal prosecution should be discouraged as a matter of public policy.
AP2 (Applicant): At the pretrial stage, the fourth applicant was made particularly vulnerable by virtue of being deliberately misled by the police that he was a witness when, in fact, he was a suspect.
AP2 (Applicant): In Saldus, as we've heard, the court found that even when compelling reasons may exceptionally justify the denial of access to a lawyer, such restrictions, whatever its justification, must not unduly prejudice the rights of the accused under Article VI.
AP2 (Applicant): The rights of the defense will, in principle, be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction, as in this case.
AP2 (Applicant): The prejudice is even greater, if that's possible, when a self-incriminating statement has been obtained by deception.
AP2 (Applicant): It is submitted that the conduct of the police brings into dispute the integrity of the executive body.
AP2 (Applicant): It's the court's function to exercise control over the executive.
AP2 (Applicant): This includes the executive power delegated to the police as servants of the state in their investigation and prosecution of criminal offenses.
AP2 (Applicant): The investigative stage is crucial in the trial process, hence why Article VI protects the rights of suspects at this stage.
AP2 (Applicant): For the court to reject the fourth applicant's case, it would endorse executive lawlessness, thereby undermining fundamental rights protected by Article VI, the integrity of the trial process, and ultimately, the rule of law.
AP2 (Applicant): It's further submitted that if the court rejects the fourth applicant's case, it would be contrary to Article VI III, the right to a fair trial, and Article III II of the directive, the right of access to a lawyer in criminal proceedings.
AP2 (Applicant): Those are my submissions, and I thank you for your attention.
Guido Raimondi (JudgeP): Thank you very much, Mr. King.
Guido Raimondi (JudgeP): Now for the UK government, I call Lord Keen of Elie.
Guido Raimondi (JudgeP): You have the floor, Lord Keen, please.
GR1 (Government): At the outset, the United Kingdom government wished to emphasize its commitment to the values of Article 6, and in particular, the importance of the component rights in Article 6, Paragraph 3.
GR1 (Government): Indeed, the fundamental nature of the right to legal advice in domestic law reflects this court's jurisprudence in this area.
GR1 (Government): It is one of the fundamental features of a fair trial, and its intrinsic aim is to contribute to ensuring the fairness of the proceedings as a whole.
GR1 (Government): The right to legal advice is enshrined in statute.
GR1 (Government): One of its aspects, the aspect material to this case, is that a suspect in police detention has the right to consult privately with a legal representative before he is interviewed.
GR1 (Government): And he has the right to have that representative present during the interview.
GR1 (Government): Equally consistent with this court's case law and the true content of Article 6, the right is not absolute.
GR1 (Government): In England, it may exceptionally be temporarily restricted for compelling reasons.
GR1 (Government): It has been established in each of the present cases that the reasons for the restriction were compelling.
GR1 (Government): Importantly, in English law, the restriction of the right to legal advice is never automatic or systematic.
GR1 (Government): It may only be exercised on a case-by-case basis.
GR1 (Government): What is required is an individual decision taking account of the particular circumstances of the case in accordance with a specific statutory scheme.
GR1 (Government): If the right is restricted, the accused is given the opportunity not just to challenge the authenticity of any statement made in the absence of his lawyer, but also to oppose its use by challenging its admissibility, which is determined by the trial judge.
GR1 (Government): The questions which are highly material in any assessment of this matter are, first, was the restriction justified?
GR1 (Government): And second, in light of the restriction, what effect would the admission of the statement have on the overall fairness of the proceedings?
GR1 (Government): As noted in the dissenting judgment of Judge Sipancic in the court's recent decision of Dvorsky and Kreyscher, in some continental systems, the principle of free discernment of evidence means that evidence cannot be excluded by the court.
GR1 (Government): In England, the position is different.
GR1 (Government): The judge is vested with broad powers to rule that evidence is legally inadmissible or should be excluded as a matter of fairness.
GR1 (Government): Just as there is no blanket rule that a statement made in the absence of a lawyer is automatically admissible as evidence, nor is there a blanket rule that such a statement must be excluded.
GR1 (Government): Such a hard-edged, inflexible rule would be entirely out of keeping with the practice in England, which is instead to determine the question of admissibility by assessing the particular circumstances of a case and reaching conclusions as to the overall fairness of the proceedings.
GR1 (Government): The government submit that the domestic approach is also consistent with the approach this court has repeatedly taken when examining complaints in this area.
GR1 (Government): This court has eschewed laying down hard-edged, inflexible rules, in particular in relation to the admissibility of evidence.