TrustHLT/LaCour huggingface dataset:
GR1 (Government): Such rules are likely to be unwieldy and arbitrary in their result, leading to the exclusion of relevant evidence even where, on any view, its admission would not render a trial unfair.
GR1 (Government): They are also likely to cut across the well-developed and sophisticated processes by which domestic courts, particularly those exercising a common law jurisdiction, determine questions of admissibility.
GR1 (Government): Instead, the approach taken by this court has been to examine whether the restriction of component rights was justified to reach conclusions in relation to Article VI, having regard to the criminal proceedings as a whole.
GR1 (Government): This was the approach taken by the chamber, and the government submit that the approach, reasoning, and conclusion of the chamber was correct.
GR1 (Government): There are also two important factual matters which are relevant to any assessment of the applications before this court, and I want to make reference to them at the outset.
GR1 (Government): The first is that the justification for restricting access to legal advice in each case has been clearly established as compelling.
GR1 (Government): Two weeks before, 52 people had been murdered by suicide bombers on the London Underground and on a London bus.
GR1 (Government): The situation faced by the police was that a second attack was underway, and the imperative on the capital's law enforcement agencies was to protect lives.
GR1 (Government): Operating in an emergency situation under severe practical constraints, the reason access to lawyers was restricted was, as the chamber has found, to address an exceptionally serious and imminent threat to public safety.
GR1 (Government): Secondly, the statements made by the applicants in the absence of legal advice was not the central platform of the prosecution's case against them.
GR1 (Government): The statements could not be characterized as decisive evidence within the meaning of this court's jurisprudence or evidence on which the convictions were founded.
GR1 (Government): The short point is that there was other evidence against the applicants which provided a very strong case of guilt.
GR1 (Government): These two matters relating to the circumstances of the particular applications, the compelling justification for the restriction, and the strength of the evidence against the applicants have been recognized by each tribunal at every stage.
GR1 (Government): That is, by the Crown Court at first instance, by the Court of Appeal, and by the chamber.
GR1 (Government): And at each stage, the courts have, after careful scrutiny, concluded that the applicants had a fair trial and that there was no violation of Article 6.
GR1 (Government): May I turn to the relevant domestic scheme in relation to the right to legal advice.
GR1 (Government): The relevant scheme in terrorism cases is set out in Schedule 8 of the Terrorism Act 2000.
GR1 (Government): Paragraph 7 of the schedule provides that a person detained in connection with a terrorism offense shall be entitled, if he so requests, to consult a solicitor as soon as is reasonably practicable, privately, and at any time.
GR1 (Government): The right is subject to paragraph 8, which sets out the circumstances in which the right may be restricted.
GR1 (Government): There are a number of important features in relation to the operation of this paragraph, to which I would like to draw this court's attention.
GR1 (Government): First, access to legal advice may only be restricted for good cause.
GR1 (Government): The restriction may only be authorized for the purpose of preventing one of the consequences set out in subparagraph 4.
GR1 (Government): In essence, this means that a restriction may only be authorized for the purpose of preventing the compromise of a terrorist investigation, physical injury, or acts of terrorism.
GR1 (Government): The prevention of these matters would provide a clear and compelling justification for the restriction of the right.
GR1 (Government): Secondly, the restriction of the right to legal advice requires an individual decision to be taken in an individual case.
GR1 (Government): Legal advice may only be delayed if a police officer of at least the rank of superintendent, that is an officer of senior rank, has reasonable grounds to believe that the exercise of the right will have one of the consequences in subparagraph 4.
GR1 (Government): Moreover, the question of whether the senior officer has reasonable grounds is both a subjective and an objective question.
GR1 (Government): Not only must the senior officer have the requisite belief, but the belief must be founded on grounds that are objectively reasonable.
GR1 (Government): All of this focuses the decision in any case on the particular circumstances that have arisen.
GR1 (Government): There is nothing automatic or systematic about delaying access to a lawyer in a terrorist case.
GR1 (Government): This feature provides a striking contrast with the domestic procedure the court examined in Sardines and Turkey.
GR1 (Government): Thirdly, the restriction on the right is limited in time.
GR1 (Government): The effect of subparagraph 2 is that access to legal advice cannot be delayed for more than 48 hours.
GR1 (Government): Even where access has been delayed, the effect of subparagraph 8 is that where the reason for authorizing the delay ceases to subsist, there can be no further delay pursuant to that authorization.
GR1 (Government): Therefore, the restriction under consideration falls within strict prescribed limits.
GR1 (Government): Finally, it should be noted that this is a formal scheme which imposes procedural obligations on the police if it is exercised.
GR1 (Government): Any restriction must be communicated to the suspect and the authorization and the reason for it must be recorded in writing.
GR1 (Government): The government submit that this scheme is consistent with Article 6.
GR1 (Government): It does not go beyond what is necessary.
GR1 (Government): It is strictly limited in time.
GR1 (Government): And for the reason I will go on to explain, it does not prejudice the overall fairness of criminal proceedings.
GR1 (Government): I would like to turn now to the way in which a statement made to the police when access to a lawyer has been restricted is treated in the English trial process.
GR1 (Government): As I've already said, there is no blanket rule that a statement of this kind is inadmissible.
GR1 (Government): The question of admissibility will depend on the circumstances of the case, and in particular, whether having regard to the circumstances, it would be unfair to admit the statement.
GR1 (Government): The trial court has two important powers in relation to statements made by an accused.
GR1 (Government): First, the court has the power to rule that a confession is inadmissible under Section 76 of the Police and Criminal Evidence Act.
GR1 (Government): A confession includes any statement which is wholly or partly adverse to the person who made it.
GR1 (Government): If the admissibility of the confession is challenged by the accused, the confession will be inadmissible unless the prosecution proved to the court beyond reasonable doubt that it was not obtained by oppression or in consequence of anything said or done which was likely to render any confession made by the accused unreliable.
GR1 (Government): This is an important safeguard.
GR1 (Government): It means that if, in the opinion of the judge, the delay in legal advice may have amounted to oppression or may, in the circumstances, have been likely to render a confession unreliable, the accused statement will not be admitted before the jury.
GR1 (Government): The second power the trial court has is the general exclusionary power under Section 78 of the Police and Criminal Evidence Act.
GR1 (Government): Under this section, the court may refuse to allow evidence on which the prosecution relies to be admitted if it appears to the court that having regard to all the circumstances, including the circumstances in which the evidence was obtained, its admission would have such an adverse effect on the proceedings that it ought not to be admitted.
GR1 (Government): In exercising this broad discretion, a judge is thus able to consider matters bearing upon the authenticity of the evidence as a preliminary issue.
GR1 (Government): A challenge to the admissibility of the statement takes place during a voir dire in which evidence is called before the judge concerning the circumstances in which the statement was made.
GR1 (Government): The procedure is fully adversarial, and the parties have the opportunity to cross-examine witnesses and to make submissions to the court.
GR1 (Government): The decision of the judge determining the question of admissibility is set out in a reasoned judgment, which, if necessary, can be scrutinized on appeal.
GR1 (Government): The nature of the voir dire procedure in the court's power necessarily focuses the judge's determination on the particular facts of the case.
GR1 (Government): This is evidence on the facts of the present applications.
GR1 (Government): In the case of the first three applicants, the circumstances in which the statements were made, the justification for the restrictions, and the overall fairness of the proceedings were explored in great detail.
GR1 (Government): The judgment of the trial judge extended to 171 paragraphs, which are summarized in the chamber judgment.
GR1 (Government): The extensive examination of the facts and a careful and detailed judgment were also features of the fourth applicant's case, again summarized in the chamber judgment.
GR1 (Government): At the center of these judgments was a recognition of the fundamental nature of the right to legal advice.
GR1 (Government): An examination of the justification for the actions of the police to restrict access, and an assessment of the impact of the admission of the statements on the overall fairness of the proceedings.
GR1 (Government): The procedures adopted and the reasoning and conclusions of the trial judges were upheld by the Court of Appeal.
GR1 (Government): Finally on this topic, the government would wish to observe that the decision of the judge on admissibility is not the end of the matter.
GR1 (Government): Once the evidence is admitted before the jury, the defense had the opportunity to challenge the accuracy, reliability, and relevance of the evidence through cross-examination and at the end of the trial by making submissions to the jury.
GR1 (Government): The significance of a statement, if there is found to be any, is ultimately a matter of fact for the jury to determine, subject to directions the trial judge may give in relation to the correct approach.
GR1 (Government): In the present case, the jury were given careful judicial directions.
GR1 (Government): The procedure I have outlined to this court is a fundamental feature of the common law system.
GR1 (Government): It is inconsistent with the adoption of blanket rules in relation to admissibility.
GR1 (Government): Instead, the procedure seeks to ensure that relevant evidence is placed before the jury, whilst at the same time ensuring that the rights of the defense are respected.
GR1 (Government): May I turn now to this court's case law.
GR1 (Government): I would like to begin by making some observations on the nature of the right to legal advice.
GR1 (Government): There are two overarching matters of principle which are clear from the case law.
GR1 (Government): The first matter of principle is that access to legal advice at the investigative stage is to be regarded as a fundamental aspect of a fair trial.
GR1 (Government): The second overarching matter of principle is that whilst the right is fundamental, it is not absolute.
GR1 (Government): As the chamber noted, the court has always recognized that the right to legal assistance could be subject to restrictions for good cause.
GR1 (Government): This approach recognizes that the guarantees in paragraph 3 of article 6 are specific aspects of the right to a fair trial, which must be taken into account in any evaluation, but that they are not an end in themselves.
GR1 (Government): Compliance with the requirements of a fair trial must be examined in each case having regard to the development of the proceedings as a whole, and not on the basis of an isolated consideration of only one of the guarantees set out in paragraph 3 of article 6.
GR1 (Government): It is noteworthy that the first three applicants seek to upset this consistent and well-established approach.
GR1 (Government): I refer to paragraph 27 of the memorial submitted on their behalf.
GR1 (Government): They contend that there should be, and I quote, a bright line rule, unquote, that all criminal suspects are entitled as a bare minimum to access to legal advice before they are questioned.
GR1 (Government): The government submit that it is certainly the case that there is an entitlement to such advice, as the court's case law and the English statutory scheme make clear.
GR1 (Government): However, there is no justification for an absolute rule.
GR1 (Government): There are three points the government wish to make on this point.
GR1 (Government): First, an absolute rule would be inflexible and fail to take account of the fact that there are legitimate and compelling reasons which justify departure from the normal position.
GR1 (Government): In other words, it fails to address the fact that at the investigative stage, the rights of a suspect may be competing with other important public interest factors.
GR1 (Government): Second, article 6 itself does not make provision for an absolute rule.
GR1 (Government): As a matter of principle, the guarantees in paragraph 3 of article 6 are not absolute guarantees.
GR1 (Government): They are specific aspects of a fair trial, which have to be considered when evaluating whether overall the proceedings were fair.
GR1 (Government): The call for a bright line rule therefore misconstrues the true content of article 6.
GR1 (Government): Third, there is no support for an absolute rule in the case law.
GR1 (Government): Quite the reverse.
GR1 (Government): This court's jurisprudence makes clear that the right to legal advice is not absolute and may be restricted for good cause.
GR1 (Government): The clear and consistent position adopted by this court is that if access to legal advice is restricted, a trial may nevertheless be fair.
GR1 (Government): The next matter I wish to address is the circumstances in which the rights of legal advice may be restricted.
GR1 (Government): This court's case law is equally clear on this matter.
GR1 (Government): The right may be restricted if in the particular circumstances of the case there are compelling reasons for doing so.
GR1 (Government): I refer to Saldo's itself at paragraph 55, as well as the chamber's judgment at paragraph 193.
GR1 (Government): In conducting any evaluation, the court will focus on why the authorities restricted the right.
GR1 (Government): It is noteworthy that in Saldo's itself and the other Turkish cases relied on by the first three applicants at paragraph 34 of their memorial, the restriction which led to a violation of article 6 was systematic and was not based on any individual consideration of the particular circumstances of the case.
GR1 (Government): And in the other cases, there was simply no justification for the restriction at all.
GR1 (Government): The recognition that a restriction of the right to legal advice for compelling reasons does not of itself involve a violation of article 6, involves a recognition that if such a restriction is imposed, it is still possible for the accused of a fair trial.
GR1 (Government): The government submit that once a restriction has been imposed, the question of whether the subsequent proceedings are fair depends on an evaluation of the proceedings as a whole.
GR1 (Government): This was made clear by the chamber, and again in the case of Saldo's.
GR1 (Government): In evaluating the overall fairness of the proceedings, there are a number of factors it is necessary to take into account.
GR1 (Government): And these were identified by the chamber at paragraph 196.
GR1 (Government): First, the general legislative framework and any safeguards it contains.
GR1 (Government): And we've addressed this.
GR1 (Government): Second, the quality of the evidence.
GR1 (Government): Third, whether the statement was promptly retracted.
GR1 (Government): Fourth, the procedural safeguards applied during criminal proceedings.
GR1 (Government): And fifth, the strength of the other evidence in the case.
GR1 (Government): This is an important factor, as the chamber concluded.
GR1 (Government): An analysis of the factors identified by the chamber will allow this court to consider how, in substance and in reality, the restriction impacted on the fairness of the proceedings.
GR1 (Government): It permits an evaluation that is sensitive to the wider range of factual circumstances that will arise across different cases, and also an evaluation that has regard to the specifics of the particular legal system concerned.
GR1 (Government): However, the first three applicants and the third party intervener contend that the factors identified by the chamber are irrelevant, and that the court should not consider the fairness of the proceedings by reference to the particular facts of the case, or having regard to the legal system concerned.
GR1 (Government): Instead, they contend that there should be a hard-edged, inflexible, absolute rule which prohibits the admission of a statement made in the absence of legal advice.
GR1 (Government): This is yet another so-called bright-line rule which is being urged on this court.
GR1 (Government): The government submit that the adoption of such a rule would be unprincipled, contrary to this court's traditional approach to the issue of overall fairness, and arbitrary in practice.
GR1 (Government): The content of Article VI does not mandate such a rule, and contrary to that which is submitted by the first three applicants, there is no support in this court's case law for the existence of such a rule.
GR1 (Government): The chamber judgment reflects the balance of the convention.
GR1 (Government): If the applicant's argument was accepted, it could undermine public confidence in the convention.
GR1 (Government): That is particularly so when the domestic courts and the chamber have concluded not only that the proceedings were fair, but that there were compelling reasons for the authorities to have acted as they did.
GR1 (Government): As a matter of principle, the approach of this court has been to avoid laying down inflexible rules in relation to paragraph 3 of Article VI, in particular inflexible rules in relation to the admissibility of evidence.
GR1 (Government): As this court has said on many occasions, admissibility of evidence is a matter for regulation by national law and the national courts.
GR1 (Government): And this court's only concern is to examine whether the proceedings have been conducted fairly.
GR1 (Government): And the problem with inflexible rules was expressed by the grand chamber and Al-Khawaji and United Kingdom.
GR1 (Government): But this court was considering whether there was an absolute rule that a conviction could not be based solely or to a decisive degree on hearsay evidence.
GR1 (Government): And the relevant quotation is in the written submission.
GR1 (Government): Contrary to the submissions of the first three applicants, Sarduz does not lay down a bright line rule that the admission of a statement made in the absence of legal advice inevitably involves a violation of Article VI.
GR1 (Government): At paragraph 55, the grand chamber observed the rights of the defense will, in principle, be irretrievably prejudiced when incriminating statements major in police interrogation without access to a lawyer are used for a conviction.
GR1 (Government): However, that statement of principle is not to be construed as laying down an absolute rule.
GR1 (Government): As the grand chamber noted in Sarduz at paragraph 52, the question of fairness had to be determined in light of the entirety of the proceedings.
GR1 (Government): And indeed, the court in Sarduz went on to examine other factors at paragraph 57 of the judgment.
GR1 (Government): Most significantly, this court had regard to the fact that the statements in question were the main evidence in the case and that the trial court, whilst using the statement to convict, did not take any stance on its admissibility.
GR1 (Government): Not only does Sarduz properly analyze, not lay down, the bright line rule which the applicants suggest, it has not been interpreted as laying down such a rule.
GR1 (Government): The chamber certainly did not interpret it as doing so, and nor did this grand chamber in the recent judgment in Dvorsky and Kreyschau.
GR1 (Government): With the court having cited Sarduz, noted at paragraph 82, that where a statement was admitted, relevant factors to be considered include the opportunity given to the accused to challenge the authenticity of the evidence and to oppose its use, whether the accused was in custody, whether such statements constituted a significant element on which the conviction was based, and the strength of the other evidence in the case.
GR1 (Government): And nor has the Supreme Court of the United Kingdom interpreted Sarduz in the way suggested by the applicants.
GR1 (Government): I refer there to the judgment of the Supreme Court in the case of Her Majesty's Advocate and Pee, the case that followed on from the decision in Kader.
GR1 (Government): At paragraph 34 of the first three applicants memorial, a number of cases have been cited in support of the proposition that this court has, following Sarduz, adopted a bright line admissibility rule.
GR1 (Government): However, on analysis, the cases do not support this proposition.
GR1 (Government): In each case, a violation was found not by applying a bright line rule, that the mere admission of the statement breached the convention, but on other grounds.
GR1 (Government): For example, as I've already said, the four Turkish cases all involved a systematic denial of legal advice, which itself led to a violation.
GR1 (Government): In Plonka in Poland, the court had regard to the fact that the suspect was a vulnerable person who was not properly informed of her rights.
GR1 (Government): It was also a case, unlike the present, in which the accused had confessed.
GR1 (Government): In Pyshnokov in Russia, there was no justification at all for the denial of legal advice, and no proper consideration of the admissibility of the statement.
GR1 (Government): In Yushakov in Ukraine, the accused treatment had amounted to a violation of Article 3.
GR1 (Government): In Yurovolkov in Ukraine, another confession case, the trial court did not conduct an assessment or evaluation of allegations of coercion in connection with the making of the statement in question.
GR1 (Government): The cases all involved systematic restrictions or trial procedures which, the statements having been admitted, were not sufficient to prevent undue prejudice to the defense.
GR1 (Government): They focused on the particular circumstances of the case and the particular legal procedures that were adopted by the domestic courts.
GR1 (Government): They did not apply an inflexible rule of the kind the first three applicants are asking this court to adopt.
GR1 (Government): The third-party intervener has placed substantial reliance on the EU directive.
GR1 (Government): The government submit that the directive is an instrument that is in fact supportive of this court's existing flexible approach, focused on overall fairness, and is inconsistent with the adoption of an inflexible rule.
GR1 (Government): It is noteworthy that Article 3, paragraph 6 of the directive, permits temporary derogation from the right of access to a lawyer for compelling reasons, which entirely accord with the reasons set out in the English statutory scheme.