TrustHLT/LaCour huggingface dataset:
GR1 (Government): The government invite the court to determine the present applications by following the approach set out in this court's established case law, and in particular, by reference to the structured approach adopted by the chamber, which was based on a careful and compelling analysis of this court's jurisprudence.
GR1 (Government): The government submit that in each case, the first question is whether there were compelling reasons for the restriction on the right to legal advice.
GR1 (Government): And the second question is whether the admission of the statements caused undue prejudice, taking into account the fairness of the proceedings as a whole.
GR1 (Government): The government's overall submission on these points is that, as found by the trial judge, the court of appeal, and the chamber, there were compelling reasons for the restriction, and each of the applicants had a fair trial.
GR1 (Government): Against that background, may I now move on to the facts of the application, starting with the case of the first three applicants.
GR1 (Government): The first issue is whether there were compelling reasons.
GR1 (Government): The conclusion of the chamber was that there was no doubt that compelling reasons existed to restrict the right of the first three applicants to legal advice in their early police interviews.
GR1 (Government): The chamber found that it had been convincingly established that at the time of the interviews, there was an exceptionally serious and imminent threat to public safety, and that this threat provided the compelling reasons which justified the temporary delay of access to lawyers.
GR1 (Government): The government submit that the conclusion of the chamber was correct, and that the justification for restricting the right to access to legal advice has been clearly established.
GR1 (Government): The chamber's conclusion on this matter was based on an assessment of the circumstances in which the decisions were made, remembering that two weeks earlier, suicide bombers had killed 52 people in London, and that London was now in the midst of another suicide attack.
GR1 (Government): The individual decisions to restrict access were taken by police officers of senior rank, who, as the chamber found, had reasonable grounds for their belief that the restriction was necessary.
GR1 (Government): The grounds, which were contemporaneously recorded, were, as the chamber noted, full, compelling, and convincing.
GR1 (Government): The first three applicants at paragraph 37 of the memorial are submitting that there were no compelling reasons, and with emphasis that there was no evidence at all to support the conclusions of the chamber, excepting the case presented by the government.
GR1 (Government): The government submit that this is an extreme submission, and it is untenable.
GR1 (Government): As has been concluded at all stages, the imperative under which the police were operating at that time was obvious and was compelling.
GR1 (Government): But in addition, the first three applicants are now inviting the grand chamber to conduct a fine-grained analysis of the facts of the case, and to do two things.
GR1 (Government): First, to put itself in the place of the police on the ground, who were responsible for dealing with this emergency situation, and to second-guess the decisions they took.
GR1 (Government): And second, to overturn the factual evaluation of the trial judge, who heard the relevant evidence in the voir dire, and overturn the review of that evaluation conducted by the court of appeal.
GR1 (Government): In essence, the approach of the first three applicants in respect to this aspect of the case is to invite the grand chamber to sit as a fourth instance appeal court, and invite a conclusion that the domestic courts got the facts wrong.
GR1 (Government): The government submit that this attempt to relitigate the facts is unprincipled.
GR1 (Government): This court has asked the government to address the question of whether, if compelling reasons to justify the restrictions were not present, there was a violation of Article VI.
GR1 (Government): The government would observe, first of all, that given the facts that compelling reasons did exist in the case of the first three applicants, the issue does not arise in the facts of their case.
GR1 (Government): However, in response to the question at the level of principle, the government's submission is that the absence of compelling reasons would not, of itself, necessarily involve a violation of Article VI.
GR1 (Government): In other words, in order to determine whether there has been a violation, it is still necessary to examine the entirety of the proceedings.
GR1 (Government): The government accept there is some dicta supporting the proposition that such a rule is to be derived from Saldus.
GR1 (Government): The government accept that the absence of compelling grounds is a very important factor in the assessment of a complaint under Article VI.
GR1 (Government): A restrictor of the right to legal advice in the absence of compelling grounds is, of itself, capable of constituting a violation of Article VI, depending on the circumstances.
GR1 (Government): In some cases, it could lead to a finding of violation.
GR1 (Government): For example, whereas in the Turkish cases, there is a systematic denial of the right so that it is, in effect, extinguished on an arbitrary basis.
GR1 (Government): That is likely to constitute a violation of Article VI.
GR1 (Government): However, the government submit the absence of compelling grounds does not necessarily involve a violation.
GR1 (Government): As the case law cited by the chamber makes clear, the court has consistently stated that its primary concern under Article VI is to evaluate the overall fairness of criminal proceedings.
GR1 (Government): The right to legal advice is not an end in itself.
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 the isolated consideration of one particular aspect or incident.
GR1 (Government): The importance of assessing complaints by examining the entirety of the proceedings is highlighted by examples of the positions which may arise in practice.
GR1 (Government): In England, if the accused makes a statement in circumstances where his right to legal advice is restricted in the absence of compelling grounds, the court is likely to exclude the statement pursuant to the provisions of PACE.
GR1 (Government): In many cases, the exclusion of the evidence will remedy any potential unfairness arising from the restriction.
GR1 (Government): And in this way, the trial process, viewed as a whole, will have fully vindicated the accused's rights under the convention.
GR1 (Government): Similarly, events may arise at trial which justify the admission of the statement.
GR1 (Government): For example, an accused may deliberately attempt to mislead the jury by claiming that he had, from the beginning of the investigation, given a particular account to the police.
GR1 (Government): This false claim might, depending on the circumstances, justify the admission of the otherwise excluded statement as rebuttal evidence.
GR1 (Government): In summary, the government submit that an inflexible rule that means an Article VI complaint is determined solely on the basis of an isolated consideration, without having regard to the subsequent development of the proceedings, is contrary to principle, and is likely to lead complaints being upheld when, in reality, the trial of the accused was fair.
GR1 (Government): In any event, on the basis that compelling reasons did exist in the case of the first three applicants, the second question is whether, viewed in their entirety, the proceedings were fair.
GR1 (Government): In addressing this question, the chamber conducted a detailed consideration of the proceedings as a whole, and concluded that the admission of the statements in question did not cause undue prejudice.
GR1 (Government): The government submit that the conclusion of the chamber was correct, and that the trial of the first three applicants was fair in all respects.
GR1 (Government): In summary, the government submit that the first three applicants had a fair trial, and that there is no basis for concluding that the rights of the defense were unduly or irretrievably prejudiced by the admission of the statements.
GR1 (Government): I move on now to the case of the fourth applicant.
GR1 (Government): The court has asked the government to address the significance of the failures to caution the fourth applicant.
GR1 (Government): In the case of the fourth applicant, there came a time during questioning when Code C required the police to administer a caution.
GR1 (Government): For the reasons set out by the chamber, and considered below, in the exceptional circumstances of the fourth applicant's case, there were compelling reasons for the decision of the police not to comply with this requirement.
GR1 (Government): In Sychenko, the court held that in the circumstances of that case, it had been incumbent on the police to caution the applicant.
GR1 (Government): But the decision did not lay down a general rule that a failure to caution violates Article VI.
GR1 (Government): As is obvious, a caution is only one aspect of the protection against self-incrimination.
GR1 (Government): The decision not to caution the fourth applicant did not of itself involve a violation of Article VI, and nor did it render the statement of the fourth applicant inadmissible.
GR1 (Government): In answer to the court's question, it is clear that the significance of the omission to administer a caution is that it was a matter which the trial judge had to assess when determining whether it was fair to admit the statement.
GR1 (Government): And of course, this was a matter that the judge did, in fact, take into account.
GR1 (Government): As to compelling reasons more generally, the chamber similarly concluded that there was no doubt that compelling reasons existed to restrict the right of the fourth applicant to legal advice in his early police interviews, and that it had been convincingly established that at the time of the interviews, there was an exceptionally serious and imminent threat to public safety, and that this threat provided the compelling reasons which justified the temporary delay of access to lawyers.
GR1 (Government): In the particular circumstances of the fourth applicant's case, the requirement to consider whether legal advice should be offered did not arise at first, because the fourth applicant was being questioned as a witness.
GR1 (Government): When this changed, the police took a decision not to caution the fourth applicant or advise him of his right to legal advice, as required by Code C.
GR1 (Government): However, as the chamber noted, the exceptional circumstances and the extreme conditions in which the police were operating must be borne in mind.
GR1 (Government): London was under attack.
GR1 (Government): Three bombers remained at large, and the identification and arrest of the conspirators were imperative for public safety reasons.
GR1 (Government): The police on the ground were faced with a dilemma, and the decision the police took, which was based on the need to obtain information for the purposes of protecting the public from the imminent risk of death, was not unreasonable in the circumstances.
GR1 (Government): In summary, the existence of compelling reasons was clear and obvious, and has been recognised at every stage.
GR1 (Government): In relation to overall fairness, the chamber conducted a detailed consideration of the proceedings as a whole and concluded that the admission of the statement in question did not cause undue prejudice to the fourth applicant.
GR1 (Government): The government submit that the conclusion of the chamber was correct and that the trial of the fourth applicant was fair in all respects.
GR1 (Government): In summary, the government submit that the fourth applicant had a fair trial and that there is no basis for concluding that the rights of the defence were unduly or irretrievably prejudiced by the admission of the statements.
GR1 (Government): Mr. President, in conclusion, the government
GR1 (Government): of the United Kingdom invite the court to hold in the case of each applicant that there was no violation of Article 6 of the Convention.
Guido Raimondi (JudgeP): Thank you very much Lord Keen and thank you to all for your interventions.
Guido Raimondi (JudgeP): I would now like to invite the judges of the Grand Chamber to put any questions they may have to the parties.
Iulia Antoanella Motoc (Judge): My first question goes to the applicant.
Iulia Antoanella Motoc (Judge): And I would like to ask you, in the light of what you had said at the beginning, how you take into account the recent resolution of the Security Council, 2249, adopted recently, a few days ago, which considers, again, that terrorism is a threat to the peace and security.
Iulia Antoanella Motoc (Judge): And this is not the first time that the Security Councils have qualified terrorism as such.
Iulia Antoanella Motoc (Judge): How you take into account this resolution of the Security Council in relation with Article 103 of the Charter of the UN and in relation with Article 6 in our convention as such?
Iulia Antoanella Motoc (Judge): My second question is also to the applicant.
Iulia Antoanella Motoc (Judge): And I would like to see, because you have invoked the U.N.
Iulia Antoanella Motoc (Judge): Directive, I would like to have your interpretation of you about the Article 12 of this directive, which, now, it's not very clear for a lot of the doctrine, and especially to the reference in the Article 12 to the Article 3, Paragraph 6 of this directive.
Iulia Antoanella Motoc (Judge): My third question, it's addressed to the government of the UK.
Iulia Antoanella Motoc (Judge): And I would like the government of the UK to comment in the Paragraph 39 of the Supreme Court of Judication, Court of Appeal, Criminal Division, which said, in this type of cases, the court is only likely to conclude that there have been an abusive process if a defendant can establish that there have been an unequivocal representation of those responsible for the conduct of the prosecution and the defendant has acted in this statement.
Iulia Antoanella Motoc (Judge): And I would like to see what means for this court to be unequivocal, where he was not aware that he became a suspect because he was called to be a witness.
Guido Raimondi (JudgeP): Thank you very much. Judge Spano please.
Robert Spano (Judge): I have one question for the Council for the first three applicants, and then two questions for the government that have been provoked by the pleadings here today.
Robert Spano (Judge): I noticed that in the pleadings of the Council for the first three applicants, there was no direct pleadings or reference to whether compelling reasons existed for restricting the first three applicants' rights to legal advice.
Robert Spano (Judge): Do I understand it to be the case that the Council stipulates that there were compelling reasons to restrict advice of the first three applicants, or is it the contention of the Council that it really doesn't matter for the legal assessment whether compelling reasons existed or not, as an overall fairness assessment needs to be considered?
Robert Spano (Judge): Or does it need to be conducted anyways?
Robert Spano (Judge): Could I just get a clarification from the Council on that issue?
Robert Spano (Judge): And may I, as the Council referred to international legal instruments and the EU position, may I ask Council to take into account in their answer Article 3 of the directive just mentioned by Judge Motok, the directive of 2013 of the right of access to a lawyer, where in Article 3 there is an explicit exception provided to the right of access to a lawyer when the government, the police, are confronted with adverse consequences or an urgent need to protect life and liberty?
Robert Spano (Judge): To the government, may I firstly ask a clarification on a factual issue?
Robert Spano (Judge): There is a distinction in the facts as regards the way in which the decision was taken in restricting legal advice of the first three applicants, in the sense that that decision in all the first three applicants' cases was explicitly reasoned and recorded.
Robert Spano (Judge): So we have information in the file on the actual thinking behind the decision to restrict legal advice.
Robert Spano (Judge): However, in the fourth applicant's case, there is no such recording or reasoning given at the time when the decision was taken.
Robert Spano (Judge): May I ask, was the fact that this decision was not recorded or reasoned, is that an anomaly under UK criminal procedural law or guidelines or codes?
Robert Spano (Judge): And if this is not an anomaly, is there a basis for an exceptions to recording or reasoning for procedural decisions of that nature?
Robert Spano (Judge): The second question is a linked question.
Robert Spano (Judge): I understand the government to rely heavily on the fact that under domestic law, Schedule 8 of the Terrorism Act, there is an explicit statutory regime regulating when restrictions on legal advice can take place.
Robert Spano (Judge): Now, in the fourth applicant's case, as I understand it, there was an explicit decision taken not to caution.
Robert Spano (Judge): Is it the government's contention that the superintendent who decided, who made that decision at that moment, also in the individual circumstances, made an assessment on whether the conditions under Schedule 8 for restricting legal advice, not just the breach of the code on the right to remain silent, but he also made a determination which the government has emphasized is part of the assessment of compelling reasons, also made a determination under Schedule 8 of the Terrorism Act.
Robert Spano (Judge): And the reason I ask is because we do not have any record or reasoning given for that decision.
Guido Raimondi (JudgeP): Now Vice President Judge Sajó, please.
András Sajó (Judge): My questions are addressed primarily to the government, but the applicants' lawyers are free to comment if they wish so.
András Sajó (Judge): I had a difficulty following your argument, so this is just for clarification.
András Sajó (Judge): Is it the position of the government that the compelling reasons are to be determined at the level of domestic proceedings, or is it within the power of this court to analyze compelling reasons?
András Sajó (Judge): Or would it be, in your view, an act of force instance?
András Sajó (Judge): Related to this, and I apologize for asking this, but I was forced by arguments made by applicants.
András Sajó (Judge): In paragraph 38 of the applicants, Ibrahim and others' observations to the court, there is a discussion of the presence or availability of lawyers before and during the safety interview.
András Sajó (Judge): If I understand you correctly, your argument is that this situation was extraordinary, and I think no one can doubt that.
András Sajó (Judge): But then you also mentioned that it is obvious why these interviews were taken in the absence of lawyers who were, at least in some cases, available.
András Sajó (Judge): And sometimes even the obvious needs some explanation.
András Sajó (Judge): So I would be very grateful if you were kind enough to explain what is the interest that necessitates the absence of lawyers in those circumstances and in the particular circumstances of this case.
András Sajó (Judge): My second question is related to a case, and I apologize if my pronunciation is not correct.
András Sajó (Judge): Maggie, or Maggie, this is a case we decided in 2000.
András Sajó (Judge): This is a Northern Ireland terrorist case.
András Sajó (Judge): The facts, as far as I can see, are comparable.
András Sajó (Judge): There, one of the reasons for finding a violation was that holding the applicant incommunicado for around 48 hours in appalling conditions amounted to coercion.
András Sajó (Judge): Now, I wonder whether you would like to distinguish the present situation from that one, and if so, on which ground.
András Sajó (Judge): I understand that the period is shorter, but these facts were not presented by you so far.
András Sajó (Judge): In regard to Maggie, finally, and obviously related to Maggie, there was no discussion of the problem of self-incrimination.
András Sajó (Judge): And related to it, the problem of remaining silent.
András Sajó (Judge): I would like to know the position of the government.
András Sajó (Judge): What is the place of the rule against self-incrimination in the convention?
András Sajó (Judge): Do you consider this to be, because it's not there.
András Sajó (Judge): And there was argument recently in this auditorium, if I may call this chamber an auditorium, where it was argued that the absence of certain words which are in the Universal Declaration and in the covenant being absent from the convention mean that there is an intention not to include it.
András Sajó (Judge): And we know that these considerations, self-incrimination, et cetera, are not in the text.
András Sajó (Judge): So what is the place of those principles or rules according to the government from the perspective of Article VI?
Guido Raimondi (JudgeP): Thank you very much, Judge Sajó.
Guido Raimondi (JudgeP): Judge Lemmens, please.
Paul Lemmens (Judge): I would like to ask both parties whether they can assist the court in the interpretation of the famous paragraph 55 of the Saldus judgment.
Paul Lemmens (Judge): It is said there that even where compelling reasons may exceptionally justify denial of access to a lawyer, such restriction, whatever its justification, must not unduly prejudice the rights of the accused under Article 6.
Paul Lemmens (Judge): And then the next sentence reads, the rights of the defense will in principle, and I stress in principle, be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction.
Paul Lemmens (Judge): This seems to suggest that apart from the principle, there is also an exception.
Paul Lemmens (Judge): I would like to ask whether the applicants agree with this part of the Saldus principles, including the in principle term.
Paul Lemmens (Judge): I know from the government that they agree with the fact that there is a principle and therefore also an exception, so I'm not going to ask them the question.
Paul Lemmens (Judge): But then I would like to ask both parties whether they can give examples.
Paul Lemmens (Judge): In the first place, and that would then be especially for the applicants, what could be exceptions where the use of statements made without the assistance of a lawyer would not violate the overall fairness?
Paul Lemmens (Judge): But the government can reply to that too.
Paul Lemmens (Judge): And then vice versa, especially for the government, but the applicants can also give an answer, when would such use violate the overall fairness, also taking into account that according to Saldus, this is what usually as a matter of principle would happen.
Paul Lemmens (Judge): So I'm asking for some clear examples because a lot has been said, but it's for me not clear how you look at the application of this last part of the Saldus principles in practice.
Guido Raimondi (JudgeP): Thank you very much, Judge Lemmens.
Guido Raimondi (JudgeP): And now, President of Section, Judge López Guerra, please.
Luis López Guerra (Judge): Thank you very much.
Luis López Guerra (Judge): As I understand, the three first applicants were cautious about their rights in several ways, but there was a caution given to them.
Luis López Guerra (Judge): However, the fourth applicant was not cautious.
Luis López Guerra (Judge): I mean, no warning was given to him.
Luis López Guerra (Judge): Now, the question is, well, the government seems to maintain that there were compelling reasons for not cautioning the fourth applicant.