CASE OF IBRAHIM AND OTHERS v. THE UNITED KINGDOM

No violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3 - Rights of defence;Article 6-3-c - Defence through legal assistance);No violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3 - Rights of defence;Article 6-3-c - Defence through legal assistance)

George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Päivi Hirvelä;Paul Mahoney;Zdravka Kalaydjieva

On 7 July 2005, four suicide bombs exploded on three underground trains and one bus in central London, killing fifty-two people and injuring hundreds more.

Two weeks later, on 21 July 2005, the first three applicants, Mr Ibrahim, Mr Mohammed and Mr Omar, and a fourth man, Mr Hussain Osman, detonated four bombs contained in rucksacks at separate points on the London public transport system. On 23 July 2005, a fifth bomb was discovered abandoned and undetonated in a bin. Mr Manfo Asiedu was identified as the fifth conspirator.

Although the four bombs were detonated, in each case the main charge, liquid hydrogen peroxide, failed to explode. Subsequent testing revealed that this was most likely the result of an inadequate concentration of the hydrogen peroxide: the hydrogen peroxide found in the bombs had a lower concentration than that which would have been necessary for it to explode.

The first three applicants and Mr Osman all fled the scenes of their attempted explosions. Images of the four men were, however, captured by closed-circuit television (“CCTV”) cameras. A national police manhunt began, in which photographs and the CCTV images of the men were broadcast on national television. The following day, 22 July, a young man was shot and killed on the London underground by police after being mistaken for one of the men. The four men were arrested, the first three applicants in England between 27 and 29 July and Mr Osman in Rome, Italy, on 30 July. They were tried and convicted for conspiracy to murder.

The fourth applicant, Mr Abdurahman, gave Mr Osman shelter at his home in London, during the period when Mr Osman was on the run from the police and before he fled to Rome. In separate proceedings, Mr Abdurahman was tried and convicted of assisting Mr Osman and failing to disclose information after the event.

The details of the applicants’ arrests and initial police questioning are set out more fully below.

The first of the bombers to be arrested was Mr Omar. He was arrested on 27 July 2005 at 5.15 a.m. in Birmingham.

Upon arrest, he was cautioned by the police using the “new-style” caution (see paragraph 137 below), namely that he did not have to answer questions but that anything he did say might be given in evidence, and that adverse inferences might be drawn from his silence if he failed to mention matters later relied on by him at trial. The police officers who accompanied him to the police station later gave evidence that Mr Omar had said that he had not known what he was doing, had not known that the bomb would go off and had not wanted to hurt anyone.

Mr Omar arrived at Paddington Green Police Station, London, at 7.20 a.m. At 7.50 a.m. he requested the attendance of a solicitor. He was told that he was entitled to consult a solicitor but that this right could be delayed for up to forty-eight hours if authorised by a police officer of the rank of superintendent or above. At 7.55 a.m. a superintendent ordered that Mr Omar be held incommunicado under Schedule 8 of the Terrorism Act 2000 (see paragraphs 140-143 below).

Shortly afterwards, a different superintendent directed that a safety interview be conducted with Mr Omar. A “safety interview” is an interview conducted urgently for the purpose of protecting life and preventing serious damage to property. The detainee is questioned in order to secure information that may help avert harm to the public, by preventing a further terrorist attack, for example. The interview may occur in the absence of a solicitor and before the detainee has had the opportunity to seek legal advice (see paragraphs 146 et seq. below).

At 9 a.m. a brief safety interview took place. It lasted three minutes and focused on whether there was anything unsafe in a bag which Mr Omar had discarded when he was arrested.

At 9.15 a.m. the custody officer at Paddington Green contacted the duty solicitor on behalf of Mr Omar.

At 10.06 a.m. and 10.14 a.m. Mr Omar again requested access to a solicitor. He was told that this would be arranged as soon as the booking-in process had been completed.

At 10.24 a.m. the custody officer was told that a further safety interview had been authorised. It was recorded in writing that Mr Omar had not been given access to legal advice on the grounds that delaying the interview would involve an immediate risk of harm to persons or damage to property and that legal advice would lead to the alerting of other people suspected of having committed offences but not yet arrested, which would in turn make it more difficult to prevent an act of terrorism or to secure the arrest, prosecution or conviction of persons in connection with terrorism offences. The reason for these beliefs, which was also recorded, was that Mr Omar was suspected of participating in the attacks of 21 July together with at least three as yet unidentified accomplices. There then followed four safety interviews.

Safety interview A commenced at 10.25 a.m. and concluded at 11.11 a.m. At the beginning of the interview, Mr Omar was given the old-style caution (see paragraph 135 below), namely that he did not need to say anything but that anything he did say might be given in evidence.

Safety interview B commenced at 11.26 a.m. and concluded at 12.11 a.m. Again, Mr Omar was given the old-style caution at the start of the interview.

At 12.19 p.m. the duty solicitor was contacted and was told that safety interviews were taking place.

At 12.31 p.m. safety interview C commenced. This time, Mr Omar was given the new-style caution. It finished at 1.17 p.m.

At 1.35 p.m. safety interview D commenced, following the administration of the old-style caution. It was completed at 2.20 p.m.

During the safety interviews, Mr Omar either claimed that he did not recognise the other suspects from the photos in the media or he gave an incorrect account of how he knew some of them. He deliberately incorrectly described their involvement in the events of 21 July.

Meanwhile, at 2.15 p.m., the custody officer contacted the duty solicitor. At 3.40 p.m. the duty solicitor arrived at the custody suite and was permitted to read the custody record.

At 4.08 p.m. Mr Omar was placed in a room for consultation with the duty solicitor. That consultation was interrupted at 4.15 p.m. for a further safety interview, which began at 4.19 p.m. and concluded at 4.21 p.m. and was conducted in the presence of the solicitor.

The next suspect to be arrested was Mr Ibrahim. He was arrested on 29 July 2005 at 1.45 p.m. in a flat in West London. He was cautioned and asked whether there was any material on the premises which might cause danger. He replied that there was not. He was also asked whether there was any material anywhere which the police should know about and he replied that the police already knew about “58 Curtis” (the premises where the explosive devices were believed to have been manufactured) because they had been there already. He identified the other man that the police had seen at the West London flat that day as Mr Mohammed and was asked whether Mr Mohammed had control of any materials likely to cause danger. He replied, “No, listen, I’ve seen my photo and I was on the bus but I didn’t do anything, I was just on the bus”. He was told that he would be interviewed about that later and that all the police wanted to know was whether there was anything at another location that was likely to cause danger. Mr Ibrahim indicated that he was aware that the police were trying to “link us to seven-seven” (referring to the events of 7 July 2005) and then said that he did “do the bus” but that he had had nothing to do with the events of 7 July.

Mr Ibrahim arrived at Paddington Green Police Station at 2.20 p.m. He requested the assistance of the duty solicitor.

At 4.20 p.m. he was reminded of his right to free legal advice and replied that he understood what had been said to him. The duty solicitor was contacted at 4.42 p.m. At 5 p.m. he called the police station and asked to speak to Mr Ibrahim. He was told that Mr Ibrahim was unavailable. The solicitor called again at 5.40 p.m. and was told that his details would be passed to the officer in charge of the investigation, but that telephone contact was impractical because the appropriate consultation rooms were unavailable.

At 6.10 p.m. a superintendent ordered an urgent safety interview and directed that Mr Ibrahim be held incommunicado. The custody record explained that his right to access to legal advice had been delayed because there were reasonable grounds for believing that delaying an interview would involve immediate risk of harm to persons or serious loss of, or damage to, property; and that it would lead to the alerting of other persons suspected of committing a terrorist offence but not yet arrested, which would make it more difficult to prevent an act of terrorism or secure the apprehension, prosecution or conviction of a person in connection with terrorism offences. The record referred to the suspicion that Mr Ibrahim had detonated an explosive device on 21 July 2005 as part of an organised attack intended to kill and injure members of the public.

At 7 p.m. a different solicitor called the police station and asked to speak to Mr Ibrahim. She was told that no-one of that name was held at the police station. At 7.45 p.m., when it was established that Mr Ibrahim was at the police station, she was told that he was already represented by the duty solicitor.

At 7.58 p.m. Mr Ibrahim was taken from his cell for a safety interview. At 8 p.m. the second solicitor contacted the custody officer. At 8.15 p.m., while Mr Ibrahim was being interviewed, the second solicitor called again seeking to speak to him.

At the beginning of the safety interview Mr Ibrahim was told:

“...[I] am going to ask you some questions, you don’t have to say anything if you don’t want to but the court can draw what’s called an inference from that and that just means that they can look upon your silence as perhaps a sign of guilt. And then what is being said here, it is being tape-recorded and it can be used in court.”

This was, in effect, the new-style caution (see paragraph 137 below).

During the safety interview, Mr Ibrahim was asked whether he had any materials such as explosives or chemicals stored anywhere. He denied knowing where any such materials might be stored or having any knowledge of planned attacks which might endanger the public. He told the police that he did not know anything about explosives and that he had no links with any terrorist groups. He added that he did not know anyone who dealt with explosives, was a danger to society or was planning terrorist activities. He accepted that he knew Mr Omar, but denied knowing other men connected with the events of 21 July whose pictures had been shown on television. He was unaware of anyone he knew having been involved in these events. He said that Mr Mohammed was not someone who would be prepared to do anything like that. The safety interview ended at 8.35 p.m.

At 8.45 p.m. the duty solicitor arrived at the police station. Mr Ibrahim was sleeping and saw the solicitor at 10.05 p.m.

During subsequent interviews while Mr Ibrahim was in detention, which were conducted in the presence of a solicitor, he made no comment.

The last of the three suspects to be arrested was Mr Mohammed. He was arrested and cautioned on 29 July 2005 at 3.22 p.m. at the same West London flat as Mr Ibrahim.

He arrived at Paddington Green Police Station at 4.29 p.m. At 4.39 p.m. he requested the assistance of the duty solicitor. At 5.05 p.m. the custody officer asked the relevant officers to inform him whether Mr Mohammed was to be held incommunicado and at 5.48 p.m. this was authorised.

Simultaneously, a superintendent authorised a safety interview. The reasons for delaying access to legal advice were recorded. The superintendent indicated that he believed that delaying an interview would involve immediate risk of harm to persons or serious loss of, or damage to, property; that it would lead to others suspected of having committed offences but not yet arrested being alerted; and that by alerting any other person it would be more difficult to prevent an act of terrorism or to secure the apprehension, prosecution or conviction of a person in connection with the commission, preparation or instigation of an act of terrorism.

At 6.59 p.m. the custody officer called the duty solicitor scheme. At 7.19 p.m. Mr Mohammed signed the custody record indicating that he wished to speak to a solicitor as soon as practicable. At 7.34 p.m. he was told that he was being held incommunicado.

At about 8 p.m. duty solicitors arrived at the front desk of Paddington Green Police Station.

At 8.14 p.m. the safety interview of Mr Mohammed commenced without the presence of a solicitor. He was given the new-style caution (see paragraph 137 below). He was told that he was suspected of involvement in the attacks of 21 July and was asked if he had any knowledge of further explosives, and those who had them, which could cause harm to the public in the near future. He maintained that he had nothing to do with the events of 21 July 2005 and that he knew nothing about them. He did not recognise the photographs of the alleged perpetrators which he had seen in the media. The safety interview finished at 8.22 p.m.

The duty solicitors arrived at the custody suite at 8.40 p.m. and saw Mr Mohammed at 9.45 p.m. The delay was partly caused by Mr Mohammed’s request for time to pray and the provision of a meal.

On 31 July 2005 Mr Mohammed was interviewed for the second time, this time in the presence of a solicitor. Early in the interview, the solicitor read out the following statement by Mr Mohammed:

“I am not a terrorist and I’m not in any way connected to any acts of terrorism and have not been connected to any acts of terrorism ... particularly on 21st July or the 7th July 2005.”

Thereafter Mr Mohammed exercised his right to silence.

The trial of the first three applicants for conspiracy to murder commenced in the Crown Court at Woolwich on 15 January 2007 before Mr Justice Fulford and a jury. It was to last seven months. The applicants stood trial alongside Mr Osman, Mr Asiedu (see paragraph 9 above) and Mr Adel Yahya (accused of taking part in the essential preparation for the attacks).

The applicants’ defence was that although they had been involved in the events of 21 July 2005 and had detonated the explosive devices, their actions were not intended to kill but were merely an elaborate hoax designed as a protest against the war in Iraq. The bombs had been designed to look realistic and to cause a bang when they went off but had deliberately been constructed with flaws to ensure that the main charge would not detonate.

At the start of the trial, the applicants argued that the admission of the statements they had given during their safety interviews would have such an adverse effect on the fairness of the proceedings that they ought to be excluded pursuant to section 78 of the Police and Criminal Evidence Act 1978 (“PACE” – see paragraph 154 below). They contended that their right of access to a solicitor before and during the safety interviews had been violated and that their right against selfincrimination had been breached as a result of the use of the new-style caution, when the old-style caution, (which made it clear that no adverse inferences could be drawn from their silence because they had not had access to solicitors) ought to have been used instead. They also argued that the statements should be excluded on grounds of public policy as, if such statements were routinely admitted, there was a greater likelihood that suspects would refuse to answer questions about public safety.

A voir dire (i.e. a hearing to determine the admissibility of evidence) was conducted. At its conclusion, and after hearing counsels’ submissions, the trial judge concluded that the statements made during the safety interviews could be admitted. His written ruling ran to 171 paragraphs and may be summarised as follows.

The judge referred at the outset to the explanation given by the police superintendent in charge of the investigation of the situation which he had faced. The superintendent had pointed in particular to the discovery of a quantity of chemicals, which appeared to be far in excess of that required to construct the devices used during the attacks of 21 July, and to evidence that the suspects had been in receipt of considerable post-event assistance.

The judge also considered the facilities available in the custody area at Paddington Green Police Station, where the applicants had been taken after their arrest and where the safety interviews had taken place. The entire custody facilities had been given over to the investigation into the attempted bombings. There were twenty-two cells, rooms for medical and forensic testing purposes and four rooms for consultations between suspects and their solicitors. However, at the time of Mr Ibrahim and Mr Mohammed’s safety interviews, eighteen individuals suspected of terrorism offences were detained at the police station. The imperative was to prevent communication between the suspects and to avoid cross-contamination in the course of searches and other forensic processes.

The trial judge next referred to the relevant statutory framework governing access to legal advice for those held under terrorism legislation (see paragraphs 139 et seq. below), which made it clear that where a suspect was interviewed without legal assistance, the old-style caution should be administered, because section 34(2A) of the Criminal Justice and Public Order Act 1994 prohibited the drawing of adverse inferences from silence where the suspect had not had access to legal advice (see paragraph 136 below). However, he considered that this did not extend to preventing the court from admitting evidence of things said by a suspect during questioning, including any lies that he told. The judge indicated that the jury would be told that, contrary to the terms of the new-style caution that had been on occasion administered, no adverse inferences could be drawn from the applicants’ failure to mention during questioning facts later relied on at trial.

He then turned to review this Court’s case-law on access to legal advice and the right to silence, explaining:

“In my view, the following conclusions are to be drawn from those decisions of the ECHR. First, legal advice can be withheld for good cause during the early stages of interviews, so long as the conditions in which the interviews occur are not significantly coercive (Magee v. the United Kingdom, no. 28135/95, ECHR 2000 VI) and so long as access is not delayed for an excessive period (John Murray v. the United Kingdom, 8 February 1996, Reports of Judgments and Decisions 1996-I). Moreover, interviewing a suspect having withheld legal advice and following a newstyle caution is not decisive in the assessment of whether there has been a breach of Article 6 (Averill v. the United Kingdom, no. 36408/97, ECHR 2000VI). Rather, the court must look at the circumstances overall and the use to which evidence is put (and including whether adverse inferences are drawn). Accordingly, so long as the overall circumstances have not caused irretrievable prejudice to the rights of the defendant, much will depend on the directions a jury receives as to how they should approach the silence or the statement of a suspect in these circumstances. As the Court made clear in Averill, considerable caution is required when attaching weight to the fact that a person arrested in connection with a serious criminal offence and having been denied access to a lawyer during the early stages of his interrogation responds in a particular way – or as in that case, does not respond – to the questions put to him. The need for caution is not removed simply because an accused is eventually allowed to see his solicitor and then refuses to answer questions. A jury must be given a strong and careful warning that they must take into account all of the relevant circumstances; they must have discounted all reasonable (‘innocent’) explanations for the accused’s silence or statements before they consider using this material against him; and the jury must be told to be careful not to accord disproportionate weight to this evidence.”

The trial judge considered that the applicable code of practice (see paragraphs 144-151 below) and the caution were primarily designed to protect an accused from self-incrimination and to warn him of the consequences if he chose to answer questions and the harm that could be done to his case if he failed to reveal elements of his defence on which he later relied at trial. Neither the code nor the caution was intended to protect defendants from telling lies. The judge explained:

“Whilst I recognise that an accused may benefit from having a solicitor remind him of his moral duty to tell the truth, in my view it is an invalid argument to suggest that an interview is necessarily inadmissible because the suspect did not have the advantage of a consultation with a solicitor, who had been excluded for good cause, in order to tell him that he should not deceive the police.”

He concluded that, despite the absence of a solicitor during the safety interviews and the use of the wrong caution, there was no significant unfairness or material infringement of the applicants’ right to a fair trial.

In response to the submission that the applicants were confronted with irreconcilable propositions when asked to participate in the safety interviews, the judge found that they were not. He noted:

“... The defendants were confronted with a stark but clear choice: either they could help the police in the knowledge that what they said may be utilised against them, or they could protect themselves and remain silent ... What is clear beyond doubt is that the defendants were not misled or deceived as to the underlying purpose of the interviews, the possible consequences of answering questions or the potential risks of not revealing elements of their defence ...”

He further observed that the defence that the applicants chose not to reveal at that stage was directly relevant to the public safety issues and was easy to describe. It did not require any detailed understanding of the criminal law or a complicated factual explanation. It could have been summed up by the single word “hoax”. The judge accepted that it was sometimes necessary to have the assistance of a lawyer before a suspect could understand and describe a complicated defence, but said that this was not the case here.

The judge considered that the defendants might have had a more credible position if they had answered the questions posed in ways which were at least arguably designed to assist the public and which, as a result, incriminated them. However, it was common ground that they had either lied or failed to reveal what they knew in the safety interviews: rather than incriminate themselves, they had offered false, exculpatory explanations. The judge further found that the invitation to cooperate in the process of protecting the public was not an impermissible inducement. Finally, he concluded that the administration of the new-style caution did not pressure the defendants into providing any element of their various defences.

The judge set out in detail the approach he had adopted to the exercise of his discretion whether to exclude the evidence. In particular, he had given full weight to the principle that access to legal advice before and during questioning was one of the most fundamental rights that should only be denied on reasonable grounds in particular cases; and he had taken into consideration the fact that the environment in which the applicants were held was not in any true sense coercive and that the questioning was neither oppressive nor unfair. While he accepted that the erroneous administration of the new-style caution involved a level of indirect compulsion, this was not, in his view, decisive: the choice for the applicants was an easy one and they had not been “induced” by the caution to incriminate themselves but had instead told deliberate, exculpatory lies. He also noted that the evidence of the safety interviews was potentially of high relevance to the central question raised in the trial, namely whether the defences now advanced were possibly true.

As regards Mr Omar’s safety interviews, the judge observed that, in answering the questions designed to protect the public, Mr Omar had volunteered a very large amount of misleading information. He had not incriminated himself at any stage, but had instead told extensive exculpatory lies. The judge considered it clear that the police officers had concentrated throughout on issues that might have revealed information relevant to assisting them to locate people or items that could pose a danger to the public. He noted that there was no suggestion that the police had exceeded the requirements of what was necessary and that it was acknowledged that the lines of questioning were relevant to public safety issues.

The judge found that Mr Omar had been denied access to a solicitor for a little over eight hours. The safety interviews had been conducted expeditiously and as soon as they were completed Mr Omar had been given access to a solicitor. The interviews were neither coercive nor oppressive, as accepted by Mr Omar’s counsel. Although a breach of the applicable code of practice had occurred when the new-style caution was administered at the beginning of safety interview C, that had not affected his attitude to the questioning. He had continued telling lies consistent with what he had said in safety interviews A and B.

As regards Mr Ibrahim, having reviewed the evidence showing the times and locations of the various interviews and consultations taking place at the police station, the judge accepted “unhesitatingly” that it would have been impractical for a telephone conversation between the solicitor and Mr Ibrahim to have been arranged at the time of her telephone calls (see paragraphs 34-35 above). He observed that at the relevant time there had been eighteen detainees at the police station, all arrested for suspected involvement in the events of 21 July 2005. The police station had been exceptionally busy and the conference rooms had been prioritised for face-to-face consultations; it would not have been a realistic option to leave a room free with a telephone socket for telephone conversations with lawyers. The judge noted that the police had accepted that there had been a breakdown in communication in that the interviewing officers had not been told that Mr Ibrahim’s solicitor was trying to speak with him on the telephone.

The judge further held that it would have been impractical for Mr Ibrahim to have spoken to a solicitor before the booking-in procedures were completed at 4.42 p.m. Although there was, in theory, time for a faceto-face conference between 6.10 p.m., when the safety interview was authorised, and 7.58 p.m., when it commenced, the judge considered that, in light of the pressure under which the police were working, it was wholly understandable that no officer had appreciated that there was time to ask the duty solicitor to attend for a meeting with Mr Ibrahim before the safety interview commenced. However, the judge was of the view that it should have been possible, between 5 p.m. and 7.58 p.m., to ensure that the duty solicitor was given access to Mr Ibrahim by telephone and accordingly concluded that, to this limited extent, he was incorrectly denied access to legal advice by telephone. However, he considered that this error did not involve a material infringement of his defence rights, noting:

“145. ... [T]his infringement of his rights was of low significance: it would have been impossible for [the duty solicitor], in speaking to Ibrahim for the first time over the telephone, to give detailed and informed advice in those circumstances, and she would have been unable to provide material assistance on the decision which he had to take. Although for this defendant the choice was a straightforward one, [the duty solicitor] would have needed to understand the entirety of the main background circumstances before she could give advice that would have been useful to Ibrahim as regards the options confronting him. She could have advised him of his rights, but save for any issues arising out of the misuse of the new-style caution, his core rights had already been made clear to him: he was entitled to legal advice (which had been delayed for public safety reasons); he was entitled to remain silent; and anything he did say may be given in evidence against him. There is no suggestion that he did not understand these straightforward matters.”

The judge considered that the erroneous use of the new-style caution was a straightforward and wholly understandable oversight on the part of the officers conducting the interview, given the pressure under which they were operating. He noted that the safety interview was short; that it was not suggested that it had been conducted coercively; and that the questions did not go beyond legitimate questioning for safety purposes. The judge examined the transcript of the safety interview conducted and noted that Mr Ibrahim had consistently denied having knowledge of any planned future attacks or hidden explosives. Mr Ibrahim had seen a lawyer around seven and a half hours after his first request to see one.

In respect of Mr Mohammed, the judge found that legal advice had been delayed for about four hours, during which time eight minutes of questioning had taken place. There was no suggestion that the interview had been held in coercive circumstances. Aside from the administration of the new-style caution, there was no evidence of any pressure having been applied. The judge was sure that the interview had not exceeded the legitimate bounds or purpose of a safety interview and had been, on the contrary, focused and appropriate.

The judge therefore concluded that there had been no material infringement of the right of any of the applicants to exercise their defence rights and that the interviews were admissible in their entirety.

The main issue at trial was whether the failure of the devices to explode was an intentional design flaw (in which case the applicants could not be guilty of conspiracy to murder) or a mistake in the construction of the devices. The prosecution relied heavily on the applicants’ answers in their safety interviews to undermine their defence that the events of 21 July were intended as a hoax.

The prosecution also led evidence that the men had extremist views. They relied on extremist material found at the residences of Mr Omar and Mr Osman (of beheadings and other atrocities); evidence that the first three applicants and Mr Osman had attended a training camp in the Lake District and that Mr Ibrahim had travelled abroad on jihad; and evidence that Mr Omar had tried to convince an outsider to the group of the legitimacy of suicide bombings and other terrorist activity and, on another occasion, had shouted at an imam who had condemned suicide bombings. Also introduced as evidence were jottings referring to martyrdom on the same pad of paper that had been used to note the amount of materials supposed to go into each bomb.

The prosecution further relied on evidence as to the purchase of the material for the bombs and their preparation. They established that, between 28 April and 5 July 2005, 443 litres of liquid hydrogen peroxide at a low concentration had been purchased from three shops in north London in a total of 284 containers by Mr Asiedu, Mr Ibrahim and Mr Omar. There was evidence that they had initially requested liquid hydrogen peroxide at a much higher strength at or near the strength necessary to enable explosion and that they had boiled the hydrogen peroxide to increase its concentration. A number of the empty bottles later recovered had handwritten numerical markings on them, which the prosecution contended was proof that the defendants believed that the requisite concentration for explosion had been reached. A rota showed over 200 hours’ work boiling the hydrogen peroxide.

Scientific evidence was also led as to the construction of the bombs, which had been put in rucksacks adapted for the purpose. The detonator was encased in paper from an A4 pad. Shrapnel had been added to the devices, which would have increased fragmentation upon explosion and maximised the possibility of injury. Both prosecution and defence experts agreed that the bombs were not viable. The prosecution’s expert explained that this was because the hydrogen peroxide had not reached the necessary concentration required for explosion. He noted that it would have been difficult for those constructing the bombs to have measured the strength of the hydrogen peroxide but pointed out that, if the purpose had only been an hoax, no increase in hydrogen peroxide concentration would have been necessary: at the initial low concentration or with a banger inserted into the mix, the same impression of noise would have been produced. In response to the defence claim that the hydrogen peroxide had been concentrated and then diluted again with tap water (see paragraph 77 below), analysis of the isotope composition of London tap water showed that this was not possible.

The prosecution also referred to telephone and CCTV evidence of extensive contacts between the men primarily before, but also after, 21 July 2005.

A farewell letter written by Mr Mohammed, which the prosecution alleged was a suicide note, was also admitted in evidence. It was alleged to have come from the same pad of paper as had been used for encasing the detonator in the bombs. A witness gave evidence that he had received the letter on 21 July 2005 from Mr Mohammed’s brother and had been asked to pass it on to Mr Mohammed’s partner.

The jury also heard evidence from passengers on the trains where three of the bombs had been detonated. One gave evidence of Mr Mohammed mumbling nervously to himself on the platform, another of him shouting “this is wrong, this is wrong” after the detonation of his bomb, still others of his look of surprise, confusion and panic afterwards. In respect of Mr Omar, passengers gave evidence of his surprise and fear. Two witnesses he encountered during his escape gave evidence that he had asked them for help and had told them he had been injured in a bomb attack or explosion. In respect of Mr Ibrahim, the bus driver who had been in charge of the bus on which Mr Ibrahim’s detonation took place gave evidence of Mr Ibrahim’s nervousness in boarding the bus.

The applicants gave evidence to the effect that their actions were intended as a hoax. They had initially planned to leave the bombs unattended in public to make a point about the Iraq war. After the events of 7 July, the plan changed to detonating the bombs but not the main charge of hydrogen peroxide. To this end, they maintained that, although they had tried to concentrate the hydrogen peroxide by boiling it, they had then watered it down so that it would no longer be at the necessary concentration for an explosion. Mr Ibrahim gave evidence that he had not intended to detonate his bomb on the bus; it had gone off accidentally as he felt for the battery in order to try and remove it. Mr Mohammed explained his farewell letter saying that it had in fact been written on 23 July after the shooting of the man mistaken for one of the suspects (see paragraph 11 above) because he thought that he too would be shot by the police. It was pure coincidence that it was written on the same pad as that used for the detonator.

Like the first three applicants, Mr Asiedu’s case prior to trial was that the events of 21 July 2005 were a hoax. However, after Mr Ibrahim had given evidence, Mr Asiedu gave oral evidence and changed his previous position. He claimed to have learned on the morning of 21 July 2005 that the devices were real bombs. He was too confused and frightened to refuse the device that was handed to him but, in accepting it, he did not intend to join or play any part in the conspiracy.

During his summing up to the jury, the judge gave the following direction in respect of the statements made in the safety interviews:

“What about the lies, members of the jury, told by some defendants to the police? It is admitted that the defendants Ibrahim, Asiedu, Omar and Mohamed lied to the police in different ways during their interviews. ... [B]efore you even begin to take any lies into consideration, you must pay careful attention to the circumstances in which the lies were told and those circumstances vary between the defendants.

First, you will recall that because of the exceptional circumstances that existed in July 2005 safety interviews were authorised in the cases of Ibrahim, Omar and Mohamed. That meant that those defendants were questioned in an attempt to preserve the safety of the public before they had the opportunity of consulting with a solicitor. It is not alleged by anyone that legal advice was denied by the officers as a result of bad faith or dishonesty. However, access to legal advice prior to interview is a right that is usually afforded to a suspect and you should take into consideration that this did not happen. For instance, a solicitor may have advised the defendant in question to remain silent or they may have reminded the defendant that he should tell the truth and that there may be consequences if he lied. Therefore, when considering whether to hold any lie told by those three defendants during a safety interview against them, remember that this safeguard with these safety interviews was withheld.”

The judge also directed the jury to bear in mind that incorrect cautions had been used. He explained:

“As a result, it was confused and potentially confusing for all three defendants. The new-style caution that was administered may have put inappropriate pressure on them to speak. When considering whether or not to hold any lie told by a defendant during a safety interview against him, take into account, therefore, that unsatisfactory history as regards the use of the caution.

However, as regards the use of the new-style caution, you are also entitled to bear in mind that none of these three defendants were in fact pressurised into revealing anything that they have later relied on in this trial. To the contrary, on all or most material issues they lied.”

In respect of those lies, the judge observed:

“In addition, for Ibrahim, Asiedu, Omar, Osman and Mohammed when assessing lies they told whilst in police custody, whether in a safety interview or otherwise, you should consider two further questions: on the particular issue you are considering, you must decide whether the defendant you are considering did in fact deliberately tell lies. If you are not sure he did, ignore this matter on that issue. If you are sure, consider why did the defendant lie on that issue. The mere fact that a defendant tells a lie is not in itself evidence of guilt. A defendant may lie for many reasons and they may possibly be innocent ones in the sense that they do not denote guilt. It is suggested here that lies were told for a variety of reasons: out of fear of admitting a degree of involvement or knowledge but which the defendant says falls short of his being a conspirator, that is Asiedu; to protect others who they feared would be falsely accused and might be killed or injured as a result; out of fear of admitting involvement, as they claim, in a hoax attack, or out of panic, distress, confusion, or from fear of being assaulted.

If you think that there is, or may be, an innocent explanation for the lies told by the defendant you are considering, then you should take no notice of them. It is only if you are sure that he did not lie for an innocent reason that his lies can be regarded by you as evidence supporting the prosecution case, subject to the other directions I have just given you on this issue relating to the safety interviews.”

Concerning the failure of the applicants to mention the defence led at trial during the safety interviews, the judge directed as follows:

“Let us turn then to the failure of the defendants to answer questions in interview. The first matter to stress is that you must not hold it against Ibrahim, Omar and Mohammed that they failed to mention during the safety interviews matters which they later relied on in court. That is because, as I have just explained to you, access to a lawyer had been denied at that stage and the law is that in those circumstances a defendant is not to be criticised for failing to mention matters that later form part of his defence. Of course it follows from the direction I have just given you about lies that if instead of remaining silent they told lies, you are entitled to take those untruths into account, subject always to the matters I have just directed you to take into account.

[M]y clear direction to you is that you must not hold it against Ibrahim, Omar and Mohammed that they failed to mention during the safety interviews matters which they later have relied on in this court.”

For the later interviews that took place after the applicants had seen their legal representatives and had received the new-style caution, the trial judge directed the jury that the applicants had failed to give an account of three matters that they relied on at trial, even though they had been asked questions about them in interview: (i) the true events leading up to 21 July 2005; (ii) their knowledge individually of and association with their coaccused; and (iii) their true state of mind, purpose and intention in relation to the deployment of the bombs. He explained that the failure to mention these matters during the interviews which took place after they had received legal advice could be held against them.

On 9 July 2007 the jury convicted the first three applicants and Mr Osman of conspiracy to murder. The jury were unable to reach verdicts in respect of the other two defendants and a re-trial in their cases was ordered. They subsequently pleaded guilty to lesser charges.

On 11 July 2007 the first three applicants were sentenced to life imprisonment with a minimum term of forty years’ imprisonment.

The applicants sought leave to appeal against their convictions. They argued inter alia that the trial judge had erred in his ruling admitting the evidence of the safety interviews.

On 23 April 2008 the Court of Appeal refused leave to appeal against conviction.

Setting out the background to the applicants’ arrest and questing, the court observed:

“5. ... It is virtually impossible to imagine the pressure and concerns which must have been felt by the police investigating teams. Two weeks earlier four bombs had been successfully detonated with the dreadful consequences with which we are familiar, and they were now faced with four more bombs, again in the transport system, which had been detonated, but failed to explode. The bombers involved on 7th July had perished, but the perpetrators of the second intended atrocity were at large, free to repeat their murderous plans, and to do so more effectively. They had to be found and detained, and the immediate objective of the investigation, including interviews of those arrested in connection with these incidents, was directed to public safety.”

The Court of Appeal expressed, at the outset of its judgment, the following, general conclusion as to the nature and conduct of the trial:

“7. It is axiomatic that every defendant, even a defendant alleged to be involved in direct and dangerous violence on the citizens and institutions of this country, is entitled to a fair trial at which his guilt must be proved. This trial was marked with conspicuous fairness and commanding judicial control by Mr Justice Fulford. The defendants were represented at public expense by leading counsel of distinction and experience, with absolute clarity about their professional responsibilities both to their clients, and to the court. The jury’s difficulty in agreeing verdicts in relation to Asiedu and Yahya demonstrates that they approached the issues with the open-minded fairness and lack of prejudice which is one of the customary characteristics of the jury system. Now that the applicants have been convicted after a fair trial before an impartial tribunal, we are entitled to record, after a lengthy examination of the evidence, that their defences to the charge of conspiracy to murder were ludicrous.”

In respect of the applicants’ defence, the Court of Appeal made the following observation:

“17. If these were hoax bombs we find it hard to conceive why it was necessary for the peroxide to be boiled in order to increase its concentration, or why both Asiedu and Yahya, independently, when buying hydrogen peroxide asked for it to be supplied at [a much higher] strength, or the highest available percentage. Equally, it is astonishing to imagine why nearly 100 gallons of hydrogen peroxide was needed unless its purpose was to increase its strength. The handwritten figures ... on 36 bottles made devastating evidence. Each one demonstrated that the manufacturers of the bombs believed that they had in fact achieved the critical concentration necessary to ensure that the bombs exploded. Indeed a significant part of the trial was taken up by the efforts by applicants to explain away this crucial evidence. In very brief summary it was contended that after the concentration in the hydrogen peroxide had been increased, it was then watered down. Moreover it is difficult to understand how any political point, if that was all that was sought to be made, could be improved by the incorporation of shrapnel within the bomb. The shrapnel was intended to cause death and maiming. There could be no other purpose. And if this expedition were intended as a hoax or a political demonstration, there was a remarkable silence from the applicants themselves after they had made their escapes. If their objective was a hoax, half a moment’s attention to the outpouring of the news about the unsuccessful bombings would have demonstrated that their objective had been achieved. Yet no such assertion or claim or explanation was given or offered to the police or the media or the public before any of the applicants was arrested.”

As to the impact of the admission of the safety interviews, the court observed:

“20. ... At this stage we simply record that if the records of the police interviews were properly admitted, they were sufficient, on their own, utterly to undermine the ‘hoax’ defence.”

The court was of the view that an interview process which, so far as possible, enabled the police to protect the public was a necessary imperative. It considered that the question whether the results of such interviews should be used as evidence against the suspects was delicate. However, it emphasised that none of the applicants had said anything which directly incriminated them, or involved any confession to participation in, or even remote knowledge of, the conspiracy to murder on 21 July. It also found that there was a risk of attaching disproportionate importance to this particular feature of the evidence in the case. Nevertheless, it noted, the interviews provided important evidence against the applicants, not because they told the truth and revealed knowledge of or involvement in terrorist activity, but because they had made a number of demonstrably untrue assertions without suggesting the defences that they later advanced at trial.

The court accepted that, owing to police error, incorrect cautions had been administered to the applicants before they told the lies in question. However, it emphasised that each of the men had been warned that the answers given in the safety interviews might be used in evidence against him. The court continued:

“37. ... So they were under no illusions. They did not purport to incriminate themselves at all. They chose to lie. On any view that was an important consideration in the exercise of Fulford J’s discretion.”

The court was satisfied that the exercise of discretion by the trial judge was fully informed and that he had approached the relevant issues with care.

As regards Mr Omar, the court noted that he was the first of the defendants to be arrested and that, as a consequence, what he might have to say was of absolutely crucial importance to the stark public safety issues which confronted the police at the time. It observed that during the voir dire, it was expressly accepted that the decision to hold a safety interview before Mr Omar was granted access to a lawyer was a valid decision under Schedule 8 of the Terrorism Act 2000 (see paragraphs 139 et seq. below). It was further conceded that the interviews were conducted fairly and moderately, and that they were neither coercive nor oppressive. However, during the appeal, counsel for Mr Omar had sought to argue that the police action to delay Mr Omar’s access to legal advice was not lawful. The Court noted:

“First, breaches of the relevant Code do not make subsequent police actions unlawful, at any rate in the sense that they are or would be sufficient of themselves to lead to the exclusion of the results of the subsequent interviews. When, as the judge found, the police were not seeking deliberately to manipulate the system in bad faith, he was required to address the exclusionary powers provided by section 78 of PACE: no more, no less. This leads to the second consideration, that it is always open to the defendant’s advocates at trial to make a deliberate forensic decision to waive or ignore, and therefore choose not to rely on the breaches of the relevant Code, if the effect of inviting attention to them may increase rather than diminish the defendant’s difficulties. In short, the trial advocate must make his own judgment whether to advance argument based on breaches of the relevant Code, or to argue some, or one, but not all of them.”

The court could see nothing to support the conclusion that the decision to admit the evidence of the safety interviews in Mr Omar’s case was flawed.

In respect of Mr Ibrahim, the court noted that three submissions had been advanced by his counsel. First, it had been argued that the superintendent’s conclusion that a pre-interview consultation between Mr Ibrahim and the duty solicitor would cause unnecessary delay was a serious error of judgment because the safety interview had not taken place until over an hour later. Second, it had been contended that the continued questioning of Mr Ibrahim after he had denied knowing anything constituted a breach of the applicable code, paragraph 6.7 (see paragraph 146 below). Finally, it had been submitted that the administration of the new-style caution had contributed to the unfairness by introducing an element of coercion. The Court of Appeal explained in detail how the trial judge had approached these matters and concluded that it saw no basis for interfering with his decision that the statements made during safety interviews should be admitted.

As regards Mr Mohammed, the court noted that the trial judge had accepted that the wrong caution had been given and that access to legal advice had been delayed for almost four hours. However, he had been confident that the interview had been a genuine safety interview, observing that it had lasted eight minutes and had not been held in coercive conditions. The court could see no basis for interfering with the decision that the admission of the evidence did not render the trial unfair.

The fourth applicant was a friend of Mr Osman, having been introduced to him by Mr Osman’s brother, Mr Abdul Sherif, in around 1999. On 23 July 2005, two days after the attempted bombings, the fourth applicant bumped into Mr Osman at Clapham Junction train station as the former was getting on a train home. The two men returned together to the fourth applicant’s home. Mr Osman then stayed with the fourth applicant until 26 July.

Meanwhile, on the afternoon of 25 July a surveillance camera was filming the entrance to the fourth applicant’s block of flats. The camera subsequently zoomed in on the fourth applicant and his flat. At 6 p.m., an undercover surveillance officer was deployed in the vicinity of the fourth applicant’s home. On the morning of 26 July, officers observed the fourth applicant and a man later identified as Mr Osman leaving the address. The fourth applicant accompanied Mr Osman to a bus stop, where Mr Osman caught a bus to Waterloo train station. The fourth applicant returned home.

On the morning of 27 July the fourth applicant went to work. When he was returning from work at around 5.30 p.m., he was approached by two police officers who sought his assistance as a potential witness in the investigation. He agreed to assist them and accompanied them to Kennington Police Station.

The police officers began interviewing the fourth applicant at 6.15 p.m. By about 7.15 p.m. the officers considered that, as a result of the answers he was giving, the fourth applicant was in danger of incriminating himself and should be cautioned and informed of his right to legal advice. They sought instructions from a senior officer in charge of the investigation. They were told that they should continue to interview the fourth applicant as a witness and accordingly did so.

At about 12.10 a.m. on 28 July, the fourth applicant was taken with the two police officers to point out an address where he believed Mr Osman lived.

Between 1.30 a.m. and 5 a.m. on 28 July, at the police station, a witness statement was taken from the fourth applicant.

In the statement, the fourth applicant recounted how he had become friends with Mr Osman in around 1999 but had lost contact with him the following year. He stated that, on 23 July 2005, Mr Osman had come running up to him at Clapham Junction railway station as he was about to board a train, and the two men had greeted each other as old friends. They had boarded the same train to Vauxhall and at the fourth applicant’s stop, Mr Osman had decided to alight with him on the pretext of wishing to speak about something. As they walked towards the fourth applicant’s home, Mr Osman had told the fourth applicant that he was in trouble with the police. He claimed to have stolen some money and to have escaped from police custody. When they arrived at the fourth applicant’s flat, Mr Osman had asked him to put on the television, and together they had watched a report of the attempted bombings which showed photographs of the men sought by the police. Mr Osman had then said that he knew the men and that they were good men. When the photograph of a fourth man sought in connection with the attacks appeared on screen, Mr Osman had pointed at the screen and said, “that’s me”. At first the fourth applicant had not believed him since the photograph did not resemble Mr Osman. But as Mr Osman had continued to discuss the justification for the attacks, the fourth applicant had begun to realise that he was telling the truth. He had become frightened and had wanted Mr Osman out of his home. Mr Osman had then asked to stay with the fourth applicant for two nights and, fearing for his personal safety if he refused, the fourth applicant had acceded to the request.

The witness statement also described an injury to Mr Osman’s thigh, which he had said was incurred while escaping after his bomb had failed to explode. Mr Osman had also explained how he had pressed the button to activate his bomb but nothing had happened. He had given details of his escape from the underground train and his movements over the next two days, when he had gone to stay with a friend in Brighton who had lent him a car. He had shown the fourth applicant photographs of the other bombers in a national newspaper which he had brought with him and revealed their names. The fourth applicant was shown a number of photographs by the police and confirmed the identity of three of the males photographed according to the information provided by Mr Osman. The fourth applicant also explained that Mr Osman had mentioned a fifth bomber who had not detonated his bomb; the fourth applicant did not know the identity of this person. The fourth applicant explained that Mr Osman had made a few calls from his mobile phone, but had spoken in Eritrean.

The next day, conversation with Mr Osman had been limited. However, he had told the fourth applicant how the bombers had prepared their bombs and had given him details of videos the group had recorded prior to the bombings, in which they had explained their actions. Mr Osman had made another call on his mobile in the afternoon. He had gone out briefly later that night and had returned with cash. He had asked to borrow clothes and the fourth applicant had indicated that he should help himself.

On the morning of 26 July Mr Osman had packed a bag and told the fourth applicant that he was going to catch a train to Paris from Waterloo train station. He had left for the station at around 8 a.m. and about an hour later had called the fourth applicant to say that he was on a train. The fourth applicant had then switched off his mobile telephone so that Mr Osman could not contact him any further.

The fourth applicant described Mr Osman’s wife and recorded the fact that he had taken police officers to a block of flats where he believed that Mr Osman and his wife lived. He concluded the witness statement by emphasising that it had been a chance meeting at Clapham Junction and that he had not taken part in any arrangement to assist or harbour Mr Osman. He said that he had only let Mr Osman stay because he had been afraid.

After the witness statement had been signed, one of the officers telephoned his superiors to seek further advice and was told to arrest the applicant. The fourth applicant was then arrested and cautioned. He was asked whether he wanted the services of a solicitor at that time but declined saying, “No, maybe after interview if it gets serious”.

On 30 July, after having sought legal advice, the fourth applicant was interviewed as a suspect in the presence of his solicitor. He made no comment to almost all the questions he was asked. His solicitor indicated that he wished to read a prepared statement in response to the disclosure received. In the prepared statement, the fourth applicant confirmed that he had had no prior knowledge of the events of 21 July and deplored them. He had been stopped by the police on 27 July and had agreed to assist them in every possible way; in this respect, he referred to his witness statement of 28 July. He corrected the witness statement in so far as it related to the physical description he had given of Mr Osman. Finally, he emphasised that the CCTV image of Mr Osman shown on television had been unrecognisable and that, when Mr Osman had claimed to have participated in the attempted bombings, he had not believed him.

On 1 August the fourth applicant was interviewed a second time. He again declined to answer questions but insisted that he had been assisting the police from the beginning and did not wish to make any further statements. He was interviewed further on 2 August and repeated that he was not and never would be a terrorist and had not played any part in what had happened. In his last interview, on 3 August, he said that everything he knew was contained in his original witness statement. The fourth applicant was charged at 2.20 p.m. on 3 August 2005.

The fourth applicant was tried with four other men, including Mr Sherif, at the Crown Court at Kingston before HHJ Worsley QC and a jury. He was accused of assisting Mr Osman and failing to disclose information after the bombings. The prosecution case was that he had been prepared to give Mr Osman shelter even though he had known that Mr Osman had been involved in the attacks. The prosecution also alleged that the fourth applicant had collected Mr Sherif’s passport from him and given it to Mr Osman. Finally, it was alleged that the fourth applicant had also collected a video camera which had been used to film suicide messages by the would-be bombers, and had given it to Mr Osman. The suicide messages have never been recovered.

The fourth applicant applied to have the witness statement excluded, relying on four matters. First, that the statement had been taken in breach of the applicable code of practice, in particular because he had not been cautioned or informed of his entitlement to free legal advice. Second, that the breach had been deliberate. Third, that he had been induced to make the statement on the pretence that he was a witness and would be free to go home after the statement was completed. Fourth, that the statement had been taken in the early hours of the morning, when he was tired. As a result of all of these matters, the fourth applicant submitted, the statement was a confession made by him in circumstances likely to render it unreliable pursuant to section 76(2) of PACE. Alternatively, he submitted that it ought to be excluded pursuant to the general discretion to exclude evidence under section 78 of the same Act (see paragraphs 152 and 154 below).

The prosecution opposed the application but accepted that the witness statement amounted to a confession for the purposes of section 76 of PACE. The prosecution also accepted that there had been a breach of the relevant code of practice in failing to caution the fourth applicant or offer him the services of a solicitor when the two police officers had come to the conclusion that they should take instructions from their superiors.

At the voir dire, the two police officers gave evidence that, when they first approached the fourth applicant on the afternoon of 27 July, it was with a view to his assisting the police as a potential witness. It was also accepted by the parties that, at that stage, the police officers did not have sufficient information to justify arresting the fourth applicant, or treating him as a suspect. One of the officers explained that by 7.15 p.m. he had taken the view that, as a result of the answers that the fourth applicant was giving, he was in danger of incriminating himself and should be cautioned and informed of his right to legal advice. The officers had accordingly sought instructions from one of the senior officers in charge of the investigation. They had been told that they should continue to interview the fourth applicant as a witness and had therefore done so. In his evidence one of the officers expressed surprise that, when the witness statement was completed, he had been instructed to arrest the applicant.

On 3 October 2007 the trial judge refused the fourth applicant’s application to have the witness statement excluded. He accepted that at the time when the fourth applicant had arrived at the police station there had been no reasonable objective grounds to suspect him of any offence and that it was entirely appropriate to treat him as a witness. However, in view of the prosecution concession that reasonable objective grounds to suspect the fourth applicant of an offence could be said to have crystallised by the conclusion of his first oral account, the judge was satisfied that there had been a breach of the applicable code at the time when the fourth applicant had made his written witness statement.

The trial judge found as a fact that there was no evidence of oppression of the fourth applicant while he was at the police station. Nor, the judge said, was anything said or done by the police officers that could have rendered the witness statement unreliable. He pointed out that the fourth applicant had “freely adopted” the witness statement after he had been cautioned and had received legal advice. He therefore did not accept that the statement should be excluded under either section 76 or section 78 PACE.

Finally, the judge referred to the right of the defence to put matters concerning the fourth applicant’s challenge to the witness statement before the jury. The jury would be directed appropriately on the question of reliability. In the circumstances no breach of Article 6 § 3 arose.

The defence subsequently made an application to have excluded those parts of the witness statement which the fourth applicant had withdrawn or qualified in his subsequent interviews. These parts concerned the physical description given of Mr Osman and statements which indicated that the fourth applicant had come to believe that Mr Osman was involved in the attacks. The application was opposed by the prosecution, because the qualifications later made demonstrated the detail in which the fourth applicant had subsequently considered his witness statement. The application was refused, the trial judge finding that exclusion of the passages would be misleading to the jury. He explained that the jury would be able to hear the full circumstances in which the fourth applicant had come to adopt the witness statement.

The other prosecution evidence led at trial against the fourth applicant included:

(i) CCTV footage from 23 July showing the fourth applicant and Mr Osman together at Clapham Junction railway station, at Vauxhall railway station and walking towards the fourth applicant’s flat;

(ii) mobile telephone cellsite analysis (analysis showing where mobile telephone calls have been made), consistent with Mr Osman having made telephone calls at the fourth applicant’s flat;

(iii) CCTV footage showing the fourth applicant meeting one of his codefendants and collecting from him the camera alleged to have been used to film martyrdom videos made by the bombers;

(iv) cellsite analysis consistent with the fourth applicant having met Mr Sherif to collect the passport for Mr Osman;

(v) footage from a police surveillance camera showing Mr Osman leaving the fourth applicant’s flat on 26 July en route to Waterloo station;

(vi) a newspaper report on the attempted bombings, with pictures of the bombers (including Mr Osman), found in the fourth applicant’s flat with his fingerprints on it;

(vii) telephone contact between the fourth applicant and Mr Osman after the latter had taken the Eurostar from Waterloo, indicating that Mr Osman had spoken to the fourth applicant twice by mobile telephone on 26 July and had twice attempted to telephone him on 27 July from Italy;

(viii) The fourth applicant’s police interviews of 30 July and 1 August in which he admitted that Mr Osman had stayed at his flat and stated that the contents of his 28 July witness statement were accurate (see paragraphs 111-112 above).

At the conclusion of the prosecution case, the fourth applicant made an application to have the proceedings stayed on the grounds that the prosecution was an abuse of process. He argued that the order given to the police officers to continue to treat him as a witness, and not a suspect, meant he had been tricked into giving his witness statement. He had effectively been told that he would not be prosecuted. In other words, later treating him as a suspect and prosecuting him was inherently unfair.

On 5 November 2007 the judge refused the application. He held that it would only be an abuse of process to prosecute someone who had received an unequivocal representation that he would not be prosecuted and had acted on that representation to his detriment. No such unequivocal representation had been made to the fourth applicant. Even if he had thought that there had been such a representation, he had not acted on it to his detriment. The evidence had to be looked at as a whole: once cautioned and provided with legal advice the fourth applicant had had the opportunity to say that the witness statement was untrue, inaccurate or given at a time when he was so tired that it was unreliable. However, he had chosen not to do so. Instead, throughout the proceedings he had adopted that witness statement; indeed, “to this day” he had effectively adopted what he had previously told the police. He had given his detailed comments on the statement when he was a suspect. The judge found that far from being an affront to justice for the case to continue, it would be an affront to justice for the case not to continue.

The fourth applicant did not give evidence at trial. His defence was based upon the witness statement of 28 July 2005.

Mr Osman was called to give evidence by Mr Sherif. During crossexamination Mr Osman confirmed the account given by the fourth applicant in his witness statement, notably that he had sheltered at the fourth applicant’s flat. Mr Sherif confirmed that he had provided the passport for Mr Osman’s travel. He accepted that from phone calls with Mr Osman and from what he had been told by the fourth applicant, he knew that the police were looking for Mr Osman.

On 21 February 2008, the fourth applicant was convicted and sentenced to a total of ten years’ imprisonment. Four of the fourth applicant’s co-accused, including Mr Sherif, were also convicted.

The fourth applicant and a number of his co-defendants appealed against conviction and sentence to the Court of Appeal. The fourth applicant argued that the trial judge had been wrong to admit the witness statement.

On 21 November 2008 the Court of Appeal dismissed the appeal against conviction. It expressed some concern about events at the police station but considered that the trial judge had not erred in admitting the impugned witness statement. Concerning the fact that the statement had been made in breach of the applicable code, the court said:

“38. The way the police behaved is undoubtedly troubling. The decision not to arrest and caution [the fourth applicant] when the officers interviewing him believed that they had material which gave them reasonable grounds for suspecting that he had committed an offence was a clear and deliberate instruction to ignore the Code. But at that stage the police dilemma is understandable. [The fourth applicant] was providing information about Osman which could have been of critical importance in securing his arrest, which was the priority at that time. It seems to us that the judge was entitled to come to the conclusion that the prosecution had established that nothing was said or done which could undermine the reliability of the witness statement. He was entitled to take into account the fact that in the prepared statement he made after caution he asserted that he was seeking to give assistance to the police. That was repeated in the later interviews. He said nothing therefore to suggest that the circumstances were such as to render it likely that what he said was not reliable. It seems to us, therefore, that the judge was also entitled to conclude from all material that [the fourth applicant] with the help of legal advice, was repeating, subject as we have said to some corrections, what was in the witness statement as his account of the part such as it was, that he played in relation to Osman in the days after 21st July. Further, given the [fourth applicant’s] adoption of that witness statement, we do not consider that the judge’s decision to permit the statement to go before the jury in the exercise of his discretion under s. 78 of the Act can be said to be perverse or affected by any error of law.”

As to the refusal of the trial judge to stay the trial on grounds of abuse of process, the Court of Appeal explained:

“39. ... The main thrust of the argument on [the fourth applicant’s] behalf is that to prosecute on the basis of a statement that he gave when being treated as a witness is quite simply unfair. He was, it is said, effectively being told that he would not be prosecuted and gave assistance accordingly. The judge in our view rightly rejected this argument. There was no evidence that [the fourth applicant] made his statement because he believed he was not going to be prosecuted. He gave no evidence to that effect; and there is nothing in the interviews after he was arrested to suggest that that was the reason for his having made the witness statement. On the contrary, he made the witness statement because he wanted to assist the police. In this type of case, the court is only likely to conclude there has been an abuse of process if a defendant can establish that there has been an unequivocal representation by those responsible for the conduct of the prosecution and that the defendant has acted to his detriment: see R v Abu Hamza [2007] 1 Cr App R 27, [2006] EWCA Crim 2918, in particular at paragraph 54. That was not the situation here.”

Describing the general relevance of an appellant’s personal circumstances to the sentence imposed, the court acknowledged that youth or vulnerability might be pertinent, but emphasised that this was not the case in respect of most of the appellants before it, including the fourth applicant. The court noted that the appellants had acted without any regard whatsoever to their public duty, and continued:

“None except [the fourth applicant] made any disclosure at all until they were arrested ...”

In conclusion, the Court of Appeal partly allowed the fourth applicant’s appeal against sentence, on account of the help he had given to the police:

“47. The assistance that [the fourth applicant] gave to Osman was of the utmost significance. We conclude, however, that we can and should reflect the fact that, albeit only after he had been seen by the police, he gave at least some help and information ...”

The court therefore reduced the total sentence to one of eight years’ imprisonment. In dealing with Mr Sherif’s appeal against sentence, the court noted the critical role the latter had played in enabling Mr Osman’s escape and considered that it justified “a very severe sentence which cannot be mitigated as it was in the case of [the fourth applicant] by his giving any information at any stage to the police”.

On 3 February 2009 it refused to certify a question of general public importance for the consideration of the House of Lords.