CASE OF IBRAHIM AND OTHERS v. THE UNITED KINGDOM

Remainder inadmissible;No violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Article 6-3 - Rights of defence) (Article 6-3-c - Defence through legal assistance;Article 6 - Right to a fair trial);Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Criminal charge;Fair hearing) (Article 6-3-c - Defence through legal assistance;Article 6-3 - Rights of defence;Article 6 - Right to a fair trial);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - claim dismissed (Article 41 - Non-pecuniary damage;Just satisfaction)

András Sajó;Dmitry Dedov;Ganna Yudkivska;George Nicolaou;Guido Raimondi;Ineta Ziemele;Iulia Motoc;Johannes Silvis;Julia Laffranque;Khanlar Hajiyev;Krzysztof Wojtyczek;Ledi Bianku;Luis López Guerra;Mirjana Lazarova Trajkovska;Nona Tsotsoria;Päivi Hirvelä;Paul Lemmens;Paul Mahoney;Robert Spano;Síofra O’Leary;Vincent A. De Gaetano;Zdravka Kalaydjieva

The applicants were born in 1978 (Mr Ibrahim), 1981 (Mr Mohammed and Mr Omar) and 1982 (Mr Abdurahman). The first three applicants are in detention. The fourth applicant lives in London.

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

Two weeks later, on 21 July 2005, the first three applicants and a fourth man, Mr Hussain Osman, detonated four bombs on three underground trains and a bus in central London. On 23 July 2005 a fifth bomb was discovered abandoned and undetonated in a London park. Mr Manfo Asiedu was later 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 necessary for it to explode given the amount of TATP (acetone peroxide, a primary explosive) used as a detonator. The evidence showed that had the concentration of the hydrogen peroxide been higher or the TATP stronger, the bombs would have been viable.

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 nationwide police manhunt began and photographs and the CCTV images of the men were broadcast on national television and published in national newspapers. On 22 July 2005 a young man was shot and killed on the London underground by police after being mistaken for Mr Osman (see Armani Da Silva v. the United Kingdom [GC], no. 5878/08, 30 March 2016). In the days that followed, 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 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. The police interviewed the fourth applicant in England on 27 and 28 July 2005 and arrested him on the latter date. In separate proceedings, he 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. at a house in Birmingham. A number of police officers entered the house and found Mr Omar standing in the bathtub, fully clothed and screaming, with a rucksack on his back. The police believed that the rucksack, which was of similar dimensions to those used in the failed bomb attacks, contained a bomb. They shouted warnings before overpowering Mr Omar with the help of a TAZER device and removing the rucksack. The rucksack proved to contain an empty bucket.

Upon arrest, Mr Omar was cautioned by the police using the “newstyle” caution (see paragraph 184 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. He was asked if there was anything that he knew of anywhere that could hurt anyone. He answered, “No”. The police officers who accompanied him to the police station in London later gave evidence of a brief interview that took place in the car. According to them, they had asked again about whether there was material anywhere that could harm someone and whether officers needed to worry about anything at his home address, to which he had replied that there was not. Later in the journey, Mr Omar volunteered the following statement:

“I was on that tube at the time of the explosions. I did not know it was going to go off, I did not want to hurt anyone ... I did not make the explosives. I was told to collect it. I went to an alleyway near a shop and collected the rucksack.”

Mr Omar arrived at Paddington Green Police Station, London, at 7.20 a.m. At 7.50 a.m. he requested the attendance of the duty 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. Superintendent MacBrayne ordered that Mr Omar be held incommunicado under Schedule 8 of the Terrorism Act 2000 (see paragraphs 187 and 189 below).

Shortly afterwards, Superintendent McKenna directed that a “safety interview” be conducted with Mr Omar. “Safety interview” is the shorthand expression used to describe 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 188-190 and 193-198 below).

At around 8.50 a.m. a doctor was called to examine Mr Omar and the doctor certified him as fit to be interviewed.

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. The duty solicitor was told that he would be contacted again once the booking-in procedure had been completed.

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. The booking-in process finished shortly afterwards.

At 10.24 a.m. the custody officer was told that a further safety interview had been authorised by Superintendent McKenna. 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 reasons continued:

“Omar is suspected of detonating an improvised explosive device on a ... train on Thursday 21 July 2005; this was part of an organised simultaneous attack that involved at least three other persons yet to be arrested. The identity of one of these persons has yet to be established and the whereabouts of three is yet to be established.

Omar’s premises at 58 Curtis House are believed to have been used to manufacture the improvised explosive material. My suspicion is that Omar and his three (at least) accomplices were attempting to carry out a ‘suicide attack’, killing themselves and any other persons in their immediate vicinity. The other parties to this attack are yet to be apprehended and it is imperative to preserve and secure public safety that they are identified, located and detained prior to attempting to repeat the events of 21 July. The immediate whereabouts of these other persons, the presence of other improvised explosive devices and the identities and whereabouts of ANY other persons involved in the commission, preparation or instigation of acts of terrorism connected to Omar MUST be established to prevent any loss of life or serious damage to property. Awaiting the arrival of a solicitor and permitting any pre-interview consultation before any attempt to establish the above facts WILL cause unnecessary delay to this interview process. I have considered the requirements of PACE [the Police and Criminal Evidence Act 1984] and the associated Codes of Practice and I believe that this course of action is necessary and proportionate. ANY interview with Omar under this authorisation must cease when the risk to life and public safety is averted.

In granting this authorisation I have considered Omar’s rights under Article 6 [of the Convention] and believe that this authorisation is both proportionate and necessary for ensuring the Article 2 rights of the public in general.”

There then followed four safety interviews of around forty-five minutes each, with a break of around fifteen to twenty minutes between each one.

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 oldstyle caution (see paragraph 182 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 p.m. Again, Mr Omar was given the old-style caution at the start of the interview.

At around 12.15 p.m. a doctor was called to examine Mr Omar and certified him as fit to be interviewed.

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 (see paragraph 184 below). It finished at 1.17 p.m. and Mr Omar was given a hot meal.

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, who indicated that he would arrive at the police station at 3.30 p.m. At 3.40 p.m. the duty solicitor arrived at the custody suite and was allowed 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 brief 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 two days later, on 29 July 2005, at 1.45 p.m. in a flat in West London. Mr Mohammed was also present at the flat.

Mr Ibrahim was given the new-style caution (see paragraphs 21 above and 184 below) and put into a forensic suit. He was asked whether there was any material on the premises which might cause danger to any person. 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 House” because they had been there already. He identified the other man at the West London flat 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 said, “Look, I know you’re trying to link us with 7/7. I’ve seen it on the television. That’s nothing to do with us. I don’t know these people. I’m a Muslim. I can’t tell lies. Okay I did do the bus, but I had nothing to do with 7/7.” The officer replied, “Look, we’re not interviewing you about any of those matters at this stage”.

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. the duty solicitor called the police station and asked to speak to Mr Ibrahim. She was told that Mr Ibrahim was unavailable for a consultation. The solicitor called again at 5.40 p.m. and was told that her 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. Superintendent MacBrayne 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 gave detailed reasons, as follows:

“IBRAHIM is suspected of detonating an improvised explosive device on the London transport system on Thursday the 21st July 2005, this was part of an organised simultaneous attack that involved at least three other persons and I believe was a ‘suicide attack’ and those concerned were intent on killing themselves and inflicting mass casualties on the public. The total extent of those involved is not yet established and other suspects may remain at large ... [I]t is not known at this stage how much explosive was manufactured; where any may still be; or if it is under the control of an individual or individuals who may still conduct a similar attack.

It is imperative to preserve and secure public safety that all appropriate measures are taken to identify, locate and detain any other suspects prior to attempting to repeat the events of 21st July. It is necessary to take all proportionate steps to detain any persons engaged in the commission, preparation or instigation of acts of terrorism related to this matter to protect the public, prevent loss of life and substantial damage to property. Awaiting the arrival of a solicitor and permitting any pre-interview consultation before any attempt to establish the above facts WILL cause unnecessary delay to this interview process. I have considered the requirements of PACE and the associated Codes of Practice and I believe that this course of action is necessary and proportionate. ANY interview with Ibrahim under this authorisation must cease when the risk to life and public safety is averted.

In granting this authorisation I have considered Ibrahim’s rights under Article 6 ... and believe that this authorisation is both proportionate and necessary for ensuring the Article 2 rights of the public in general.”

At 7 p.m. a different solicitor called the police station and asked to speak to “Ibrahim Muktar Said”. 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 a Mr Ibrahim was at the police station, she was contacted and told that he was already represented by the duty solicitor. Meanwhile, Mr Ibrahim was seen by the forensic medical examiner and given a hot vegetarian meal.

At 7.58 p.m. Mr Ibrahim was taken from his cell for a safety interview. At the beginning of the safety interview he was given the newstyle caution (see paragraphs 21 above and 184 below). During the interview, he was read the notes of the police officers concerning what he had said during his arrest but he declined to make any comment or to sign them. He 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. When pressed on whether he knew about other people, other devices and other plans, he said that he did not deal with explosives and did not know anyone who did. When further pressed about whether there was “something out there” that could hurt someone, he said that if he knew anything he would tell the police. He repeated that he knew nothing about explosives and that he did not know anyone planning to carry out suicide attacks. 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 the other two 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.

Meanwhile, at 8 p.m. the second solicitor contacted the custody officer and a note was made in the custody record that there was an issue of two solicitors wishing to represent Mr Ibrahim. At 8.15 p.m., the second solicitor called again seeking to speak to him.

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. Around an hour later, Mr Ibrahim said that he did not want the services, at that stage, of the second solicitor.

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, using the new-style caution (see paragraphs 21 above and 184 below), on 29 July 2005 at 3.22 p.m. at the same West London flat as Mr Ibrahim. He was asked whether there was anything inside the flat that could cause harm to police officers or members of the public. He replied, “No”.

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, and the forensic procedure commenced. 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, Superintendent MacBrayne 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. The detailed reasons were essentially identical to those given as regards Mr Ibrahim (see paragraph 43 above).

At 6.59 p.m. the custody officer called the duty solicitor scheme. At 7.16 p.m. the forensic procedure was completed and 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 and shortly thereafter was permitted to return to his cell to pray.

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 paragraphs 21 above and 184 below). He was told that he was suspected of involvement in the attacks of 21 July and that the police were concerned for the safety of officers and the public. They therefore needed information about any further explosives, and the people who had them, that could cause harm to the public in the near future. He replied that he had nothing to do with the events of 21 July and that he knew nothing about them. He did not recognise the photographs of the alleged perpetrators which he had seen in the media and he did not know how to make the explosive devices found. The safety interview finished eight minutes later, 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.

Two days later, 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 first three applicants were charged with conspiracy to murder. In September 2006, the defence statements were served. In his defence statement, Mr Omar explained that together with Mr Ibrahim he had devised a plan of constructing a device with the outward appearance of a realisticlooking explosive device but which had been specifically designed only to make a noise. He accepted that he had been involved in constructing the devices detonated on 21 July 2005 and that he was one of the underground bombers.

In his defence statement, Mr Ibrahim accepted that he had detailed knowledge of how to make TATP and concentrated peroxide. He admitted that he had bought most of the ingredients for the bombs, which he said had been designed to make a noise but not to explode because there was insufficient TATP to activate the main charge. He described a meeting at 58 Curtis House with Mr Omar, Mr Mohammed and Mr Osman on 19 July 2005 and explained that Mr Mohammed and Mr Osman had been given the components that were to be used to make the devices. He maintained that his activating the device on the bus had been a mistake; he had not been able to set it off on the underground because there had been too many people and his escape might have been impeded.

In his defence statement, Mr Mohammed accepted that he had been one of the underground bombers. He admitted that he had carried the device but maintained that he had been given it by Mr Ibrahim so that it would make a noise and that it was to have been left on the underground train to attract maximum publicity. He said that he had helped move some of the hydrogen peroxide used to manufacture the devices and that, on 21 July 2005, he had mixed the hydrogen peroxide and flour and placed it in a container, thereafter attaching metal washers and screws to the device.

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. The applicants stood trial alongside Mr Osman, Mr Asiedu (see paragraph 15 above) and Mr Adel Yahya (accused of taking part in the essential preparation for the attacks). The trial lasted seven months.

The applicants’ defence at trial, as indicated in their defence statements, was that although they had been involved in the events of 21 July 2005 and had detonated the explosive devices, their actions had not been intended to kill but had been 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.

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 as contended by the prosecution. The prosecution sought to rely on the applicants’ answers in their safety interviews to undermine their defence that the events of 21 July were intended as a hoax.

The first three applicants argued that the admission of the statements they had made during their safety interviews at the police station 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 1984 (“PACE” – see paragraph 201 below). Counsel for Mr Omar accepted that the police had had good grounds for conducting the interviews as they did. Counsel for Mr Ibrahim claimed that the new-style caution included an element of coercion and that his safety interview had gone beyond its safety purpose. Counsel for Mr Mohammed said that the reasons for the decision to hold a safety interview in his case were incapable of constituting reasonable grounds given the fundamental nature of the right to a lawyer. He questioned whether Mr Mohammed’s safety interview had been an urgent interview at all and argued that the subject matter of the interview had exceeded questioning necessary for securing public safety.

A voir dire (a “trial within a trial” to determine the admissibility of evidence) was conducted. As Mr Omar did not challenge the lawfulness of the safety interviews or the manner in which they were conducted, the prosecution was not required to call evidence in this respect. His entire interview process, and in particular the content of his safety interviews, were taken as read. So, too, was the evidence of Superintendent McKenna, the senior officer in charge of the investigation, and the relevant evidence from the custody records. Evidence was heard from, inter alios, Superintendent MacBrayne, the interviewing officers and the jailer at Paddington Green police station. The judge also heard submissions from counsel.

Superintendent McKenna’s evidence was provided in a statement of 5 October 2006 and was as follows:

“Within hours of the incident on 21 July the investigation had discovered possible identities of three of the four principal suspects. The investigation became more complicated over these first few days due to a number of complicating factors. Some of these were as follows: on Saturday 23 July a further improvised explosive device (‘IED’) was discovered by a member of the public apparently abandoned ..., suggesting a potential fifth hitherto unknown suspect attacker. A premises in Enfield was discovered linked to two of the known suspects at that time. A large quantity of precursor chemicals was discovered in the vicinity of these premises. The quantity of chemicals appeared to be far in excess of what would have been required to construct the IEDs used during the attacks on 21 July. It appeared that the suspects from 21 July were in receipt of considerable post-event assistance from other unidentified persons.

The net effect of the issues mentioned above was that the need to identify and locate all those involved in the events of 21st was the overriding priority of the investigation. There existed a very real fear that another attack could be mounted, either by those who had carried out the attacks on 21st, or by others, acting separately, but under the same control, or in concert with the suspects from the 21st July.”

Superintendent MacBrayne gave evidence that he had been aware when granting permission to delay legal advice in the case of Mr Ibrahim that solicitors had been in touch with the custody suite. In his decision to delay legal advice, he had considered the period that a consultation might take but had not necessarily addressed the possibility of a telephone conference. As to the delay between the authorisation to conduct a safety interview and the start of Mr Ibrahim’s interview, Superintendent MacBrayne explained that the start time of an interview was a matter for the discretion of the officers. Once he had authorised an urgent interview, it was not realistic in these circumstances to expect him constantly to revisit the issue and determine when the interview was to occur: some decisions were left to the officers at the police station. Superintendent MacBrayne accepted that before the beginning of the safety interview of Mr Ibrahim it might have been possible for solicitors to see him but said that in his experience such conferences could be extremely protracted. He accepted that a meeting with a lawyer could be interrupted or made the subject of time-limits. In respect of Mr Mohammed’s safety interview, Superintendent MacBrayne gave evidence that the need to ask questions was just as great when the interview began as it had been when the interview had been authorised. He explained that he had given the police officers at the station the tools to make the decision as to the precise time the interview should occur.

In his lengthy ruling on the voir dire, the trial judge held that the statements made during the safety interviews could be admitted. The judge referred at the outset to the explanation given by Superintendent McKenna of the situation which he had faced (see paragraph 66 above). 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. He noted that 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 being detained at the police station.

The judge examined carefully the circumstances surrounding each of the applicants’ arrests and safety interviews. Reviewing, first, Mr Omar’s case, he noted that counsel for Mr Omar did not allege that the interviews had been oppressive. On the contrary, he said, counsel had accepted that the interviews had been necessary and fairly conducted. The judge noted:

“30. On all significant issues, it is admitted Omar, from the outset, did not tell the truth in these interviews and, in the result, he did not in any sense assist the police in their attempt to secure the safety of the public. Indeed, the position is quite the opposite ...”

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 police officers had concentrated on issues that might have revealed information relevant to assisting them to locate people or items that could pose a danger to the public. Although the interviews had been long, it had not been suggested by counsel that the police had exceeded the requirements of what was necessary and it had been acknowledged that the lines of questioning were relevant to public safety issues.

As regards Mr Ibrahim, the judge again reviewed in detail the circumstances of his arrest and questioning and noted:

“48. ... There were 18 detainees, all arrested for suspected involvement in the events of 21 July ... [T]he overall picture is of an extremely busy police station, and I accept unhesitatingly that it was impractical to enable a telephone conversation to take place between [the duty solicitor] and Ibrahim at the time of her two calls ... The custody sergeants understandably gave priority to ‘face-to-face’ conferences ... and it was not a realistic option to leave a room free with a telephone socket for telephone conversations with lawyers. [The custody sergeant] accepted, however, that there had been a breakdown in communication in telling the interviewing officers that [the duty solicitor] was trying to get through to Ibrahim on the telephone.”

The judge noted that the police had approached the issue of undiscovered items from a number of different directions but that at all times Mr Ibrahim had maintained that he did not know of any planned attacks for the future or hidden explosives.

The judge then examined the circumstances of Mr Mohammed’s arrest and questioning by the police. As regards the gap between his arrival at the police station and the start of his safety interview, the judge referred to Superintendent MacBrayne’s evidence (see paragraph 67 above).

The trial judge next referred to the statutory framework governing access to legal advice for those held under terrorism legislation (see paragraphs 188-190 and 193-198 below), which made it clear that where a suspect was interviewed without legal assistance, the old-style caution had to 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 195 below). However, the judge 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, first, 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; and, second, that they should take on board that incorrect cautions had been given.

The judge turned to review domestic and Strasbourg case-law on access to legal advice and the right to silence, referring to John Murray v. the United Kingdom, 8 February 1996, Reports of Judgments and Decisions 1996I, Condron v. the United Kingdom, no. 35718/97, § 60, ECHR 2000V, Magee v. the United Kingdom, no. 28135/95, ECHR 2000VI, and Averill v. the United Kingdom, no. 36408/97, ECHR 2000VI. He continued:

“129. 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) and so long as access is not delayed for an excessive period (Murray). 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 [of the Convention] (Averill). 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 181-185 below) and the caution were primarily designed to protect an accused from self-incrimination (both the old and new-style cautions) and to warn him of the consequences if he chose to answer questions (both cautions) 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 (the new-style caution). Neither the code nor the caution was intended to protect defendants from telling lies. The judge explained:

“134. ...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. Second, ... it cannot be said that the use of the new-style caution induced any of these three defendants to reveal parts of their defence so as to avoid adverse inferences being drawn during their trial. Instead they told lies.”

He concluded that, although he had given weight to the absence of a solicitor during the safety interviews and the use of the wrong caution, there had been no significant unfairness or material infringement of the applicants’ right to a fair trial. He then went on to consider the specific proceedings in each of the three applicants’ cases.

As regards Mr Omar, the judge noted that he had been the first of those who had detonated devices to be brought into custody and that he had, therefore, been a person of particularly high interest to investigators. He found that the safety interviews had been conducted expeditiously and that as soon as they had been completed Mr Omar had been given access to a solicitor. The interviews had been neither coercive nor oppressive, as accepted by Mr Omar’s counsel. Although not specifically raised by counsel, the judge further observed that no legitimate complaint could be made as to the overall length of the interviews: in interview, Mr Omar had been suggesting to officers that he had not been involved in the alleged offences, yet it had emerged as the questioning progressed that he knew some of those involved and that he had information as to particular events. The judge continued:

“141. ... Whether interviews of this kind need to be short or long, or somewhere in between, will depend on all the circumstances. Given the vital subject matter – the need to preserve life and limb and to prevent serious damage to property – the police were entitled in their questions to press and probe, as in any conventional interview, since long experience has demonstrated that although an unhelpful answer may be given initially, systematic but fair questioning can unearth detail which the interviewee was reluctant or unable to provide at the outset. These exchanges are often organic, and although the reason for asking the questions should only be to preserve the safety of the public, the subject-matter of the questions may perforce include seemingly extraneous matters, so as to enable the officers to approach a given ‘safety’ issue by a variety of different routes.” (original emphasis)

Although a breach of the applicable code of practice had occurred when the new-style caution had been administered at the beginning of safety interview C (see paragraph 34 above), the judge noted that this had not affected Mr Omar’s attitude to the questioning. He had continued telling lies consistent with what he had said in safety interviews A and B, where he had been correctly cautioned (see paragraphs 30-31 above). The new-style caution had not led him to incriminate himself.

As regards Mr Ibrahim, the judge reiterated that by the time he had arrived at Paddington Green police station there had been eighteen suspects in the custody suite, all held under terrorism provisions in relation to the events of 21 July (see paragraph 71 above). He continued:

“143 ... For the police these were unique and extremely difficult circumstances. They had to ensure that there was no contact or communication between any of the suspects, and with those – such as Ibrahim – who potentially may have yielded ‘forensic evidence’ elaborate procedures were followed to ensure that evidence of this kind was not lost or contaminated. He arrived at Paddington Green wearing special clothing and the booking-in procedure did not conclude until between 16.12 and 16.20. It would have been impractical for him to speak to a solicitor during that process. At 17.00 and 17.40, when the duty solicitor rang, neither of the two rooms with an appropriate telephone socket was available. The decision to hold a safety interview was recorded in the custody record at 18.10, and Ibrahim was taken from his cell for the safety interview at 19.58. On the evidence, it is clear that there was a breakdown of communication in that the investigating and interviewing officers ... were not told that [the duty solicitor] had been trying to speak to Ibrahim from 17.00. Furthermore, Mr MacBrayne had decided not to delay the interview to enable a solicitor to attend at the police station for a face-to-face meeting prior to any interview because of the length of time such a conference may take. Apart from the risk of delay to the interview, Mr MacBrayne did not object in principle to Ibrahim seeing a lawyer prior to the safety interview.

Although the officers could have set a time-limit on any legal consultation at the police station – a possibility that Mr MacBrayne did not address – I am persuaded that the decision to hold a safety interview without waiting for [the duty solicitor] to arrive at Paddington Green Police Station was wholly sustainable. Proper advice in these circumstances could not be given in a few minutes; indeed, for the conference with a solicitor who was new to the case to have had any real value it would have needed to last for a significant period of time. I acknowledge that [the duty solicitor], whose offices were only a little over two miles from the police station, could have attended at short notice, and that there was, in theory, time for a face-to-face conference between 18.10 and 19.58. However, the officers were working under exceptional pressure; it was uncertain as to when the interviews of each of the 18 suspects would occur, given the pressure on facilities; there was considerable demand for the four available solicitor/client conference rooms; and in all the circumstances it was wholly understandable that no officer appreciated that there was time to ask [the duty solicitor] to attend for a meeting with Mr Ibrahim before the safety interview began. Mr MacBrayne gave his authorisation for a safety interview at 18.10 and I do not consider that the unforeseen delay in organising the interview until 19.58, on these facts, constitutes a breach of Ibrahim’s rights to consult a solicitor ‘as soon as reasonably practicable’. On an assessment of what was reasonable on this highly unusual day, the failure to arrange a face-to-face conference during that less-than-two-hour period, or indeed during the longer period following the first telephone call from the duty solicitor, was not unreasonable. These rights cannot be assessed in a vacuum, but in the light of the circumstances prevailing at the time.”

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 he accordingly concluded that, to this limited extent, Mr Ibrahim had been incorrectly denied access to legal advice by telephone. However, the judge 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 noted again that the use of the new-style caution at the beginning of the safety interview was an error, but he considered that the erroneous use of that caution was a straightforward and wholly understandable oversight on the part of the officers conducting the interview, given the exceptional pressure under which they had been operating. For the reasons already given (see paragraph 78 above), he rejected the suggestion that once an interviewee had given an answer on a particular issue the officer should have explored the matter no further during safety interviews. Such an approach, he said, could amount to a dereliction by the officers of their duty. He considered that so long as the questioning was fair and so long as its purpose was to address safety issues, the officers were entitled to press and probe in an attempt to unearth useful information relevant to the protection of the public. They were not expected to believe and accept what was said by the detainee, and investigating his motives and attitudes to terrorism could be highly relevant to the question whether there was a subsisting danger to the public. The judge found that Mr Ibrahim’s safety interview had been short, that it was not suggested that it had been conducted coercively, that the questions had not gone beyond legitimate questioning for safety purposes and that Mr Ibrahim had seen a lawyer around seven and a half hours after his first request to see one. Finally, he noted that it was accepted by Mr Ibrahim that the conversation which had taken place upon his arrest was admissible (see paragraph 40 above), although its content was disputed.

As regards Mr Mohammed, the judge rejected the submission that the holding of a safety interview had not been objectively justified. He was confident that what had taken place had been a bona fide safety interview and that the officers had been entitled to conclude that the single question put to Mr Mohammed upon his arrest had not been a sufficient investigation of the potential dangers. The judge again emphasised that the risk to the public of outstanding explosives and conspirators had been considerable and found that it had been “wholly justified” to hold a safety interview without the delay that would have resulted from allowing him access to a lawyer. He repeated that giving proper advice at this stage, from solicitors not previously involved, would in all likelihood have taken a considerable period of time.

The judge noted that Mr Mohammed’s access to 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 fact of the interview and the terms of the new-style caution, there was no evidence of any pressure having been applied. The judge recorded that Mr Mohammed’s stance under questioning had been that he had been wholly uninvolved in the events of 21 July, and that although the officers had pressed him on this for a short and wholly appropriate period of time, he had resolutely maintained that he had no relevant information to impart. The judge was sure that the short interview had not exceeded the legitimate bounds or purpose of a safety interview and had, on the contrary, been focused and appropriate.

As to the fairness of the proceedings, in the light of his analysis of the facts, the judge began by citing passages from the House of Lords where their Lordships had referred to the “triangulation of interests” which had to be considered, namely the position of the accused, of the victims and their families and of the public. Their Lordships had also referred to the fact that individual rights should not be treated as if enjoyed in a vacuum and that the purpose of Article 6 of the Convention was not to make it impracticable to bring those accused of crime to justice. The judge continued:

“158. Those passages, in my judgment, reveal a critical aspect of the approach that the court should adopt when determining applications to exclude evidence on the basis of suggested unfairness. Trials must be fair, and judges have the obligation of ensuring that the trial process is not undermined by admitting evidence that would defeat that objective. However, the evidence which the defendant seeks to exclude should not be evaluated in a vacuum, and the court should not apply some rigid formula, thereby ignoring the true context of the disputed material. On these applications, the court is called upon to exercise discretion, and that can usually only be achieved if all of the relevant circumstances are taken into consideration. There is no pre-determined result, and each case depends on the application of the relevant principles to the particular facts.”

The judge emphasised that the right to a lawyer was recognised under domestic and European law as an important safeguard for an accused which should only exceptionally be denied. Where an interview with a defendant who had requested legal representation took place before the opportunity for consultation had been afforded, the court was required to scrutinise the circumstances with great care.

The judge considered that the submission that the applicants had been confronted with irreconcilable propositions when asked to participate in the safety interviews merited careful analysis. However, he found that the propositions were not irreconcilable and contradictory. He considered that the three applicants had been confronted with a “stark but clear choice”: either they could help the police in the knowledge that what they said might be used against them, or they could protect themselves and remain silent. He noted that they had been warned that failure to reveal elements of their defence later relied on at trial might count against them. He continued:

“161. ... 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: these matters were explained in straightforward language and it has not been suggested that any defendant failed to understand what was said to them ... The change in the words of the caution as regards [Mr Omar] in interview C appears to have passed by unnoticed; certainly, nothing has been advanced to support any argument that it caused confusion or pressure. Centrally, they were told that anything they said may be used in evidence against them ...”

The judge noted that the questions posed in the interviews had concerned the construction and detonation of the devices, which the three applicants now admitted. They had, therefore, not been faced with an unfair dilemma: it had been for them to decide at that stage in the unfolding events whether their personal interests or the public interest took priority. The judge further emphasised that the defence that the applicants had chosen not to reveal at that stage – the truth, as they now maintained in their defence statements – had been directly relevant to the public safety issues and easy to describe. It had not required 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 had not been the case here. He noted:

“161. ... The defendants might have a more credible position on this issue if they had answered questions in ways which were at least arguably designed to assist the police and which, as a result, incriminated them. However, it is common ground that the defendants either lied or failed to reveal what they knew during these safety interviews: rather than incriminate themselves, they offered false, exculpatory explanations. Having been warned that anything they said may be used in evidence, they chose not to tell the police the truth ...”

The judge further found that the invitation to cooperate in the process of protecting the public had not been an impermissible inducement. Finally, he concluded that the new-style caution had not, on the material introduced in the voir dire, pressured the applicants into providing any element of their various defences and that they could not validly claim that they had been induced impermissibly into revealing their “true” cases.

The judge emphasised again:

“162. What occurred in London in July 2005 was wholly exceptional; indeed, since the end of the Second World War, the perceived threat to the Capital during that month was without precedent in our national life. When the potential connection was made between the events of 7 and 21 July by the investigating officers, their inevitable concern was that the United Kingdom had become the target of what may turn into a wave of terrorist attacks. Many died on 7 July, and yet more were injured in terrible circumstances, and exactly a fortnight later it seemed that it was merely by good fortune that a repeat event had been avoided. The perpetrators on 7 July were dead and the police had incomplete information about them; when the devices detonated on 21 July, the police had no means of knowing whether yet more were destined to be set off in the near future; and a high priority for those charged with protecting the public was to find and defuse any other bombs and to arrest outstanding conspirators.”

The judge noted that, among other things, terrorism was usually intended to create chaos and panic and to disrupt the proper functioning of public life. It was, he said, no doubt intended by the perpetrators that the emergency and law enforcement services, faced with events of this nature, would have to function in a highly adverse environment. Indeed, in the absence of evidence to the contrary from the defendants, it was a fair inference that it had been contemplated by the defendants that they would cause a considerable strain to, or breakdown of, the normal and proper administrative procedures in multiple fields, thereby maximising the effect of their terrorist event. This conclusion applied equally, the judge said, whether the devices were intended to kill and maim or to be hoax devices which only partially detonated. The resort by the police to safety interviews, the delays in providing access to lawyers and the mistakes as to the caution were “a direct and unsurprising result of the defendants’ deliberate actions”.

In his conclusion to his ruling, the judge noted that the applicants had, by their own admission, caused the wholly exceptional and stressful environment within which the police had been forced to operate and that had led to the need to hold safety interviews. Further, instead of assisting the police in their understanding of the extent of the continuing risk, or lack of one, they admitted that they had availed themselves of this opportunity to tell a series of highly misleading, exculpatory lies. It was not suggested that they had failed to understand that they had the right to remain silent, or that they were unfit to participate in the interviews.

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. He had borne in mind the need for the court to have regard to the fact that the police should have the systems in place and the resources available to enable them to investigate all crime efficiently. That said, he added, the police could not be expected to anticipate and make provision for every kind of exceptional eventuality, particularly if the chaotic event in question had not occurred before. Further, in determining the admissibility of the statements, the court was fully entitled to weigh in the balance the fact that it had been necessary to conduct the interviews and that the state of affairs that had led to the denial of legal advice was the direct result of the applicants’ deliberate action.

The judge said that he had also taken into consideration the fact that the environment in which the applicants had been held had not been in any true sense coercive; indeed, he said, the opposite was the case. The applicants’ dietary and religious needs had been punctiliously catered for and their fitness for interview carefully assessed. It had not been suggested that the questioning was oppressive or unfair. While the judge accepted that the erroneous administration of the new-style caution had involved a level of indirect compulsion, this was not, in his view, decisive: the choice for the applicants had been an easy one and they had not been induced by the caution to incriminate themselves but had instead told deliberate, exculpatory lies.

The judge explained that he had also taken into account 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. He said that it was not, therefore, “marginal or unimportant evidence” but instead could provide the jury with considerable insight into the true intentions of the defendants. So long as it was fair to each defendant to introduce the safety interviews in his case, it was, the judge said, strongly in the public interest for the material to form part of the evidence bearing in mind the “triangulation of interests”. He therefore concluded that there had been no material infringement of the right of any of the applicants to exercise their defence rights. None of the applicants had needed the presence of a lawyer as a counterweight to anything adverse that had happened during their detention or safety interviews. The use of the wrong caution had not, on the facts, undermined the protection against self-incrimination. Moreover, there was nothing unfair in admitting the evidence given the circumstances analysed in detail in the ruling. Having thus weighed the requirements of Article 6 of the Convention, the judge ruled the interviews admissible in their entirety. He noted that “carefully crafted” jury directions would be necessary and that these would be discussed with counsel in due course.

Aside from the statements made in the safety interviews, the prosecution led evidence that the applicants had extremist views. They relied on books and printed material, audio material, including the last message of the 11 September 2001 suicide bombers, and video material showing beheadings and other atrocities, including homemade films, found at the residences of Mr Omar and Mr Osman. There was evidence that the first three applicants and Mr Osman had attended a training camp in the Lake District in May 2004 and there was a clear inference that the purpose was training for Jihad. Mr Ibrahim had spoken of training for Jihad in Afghanistan or Iraq in summer 2004 and at the end of 2004 he had left the United Kingdom to go on Jihad, returning in March 2005. Some of those who had gone with him had not returned and were presumed to have been killed. There was evidence that Mr Omar had tried to convince an outsider to the group of the legitimacy of suicide bombings and other terrorist activity and had made clear that he supported murderous operations carried out against the United Kingdom and the United States, expressing support for the 11 September 2001 suicide bombings. In early 2005, he had shouted at an imam of a mosque who had condemned suicide bombings in Pakistan that he should not “mislead the people”. 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. Between April and July 2005, Mr Ibrahim, Mr Omar and Mr Asiedu had purchased 443 litres of liquid hydrogen peroxide at 18 per cent concentration, the highest concentration available to the public, in a total of 284 containers. There was evidence that they had requested liquid hydrogen peroxide at 60 or 70 per cent strength. The prosecution contended that they had boiled the lower-strength hydrogen peroxide to increase its concentration. Of the 228 empty bottles later recovered, 36 had handwritten markings on them with the figure of “70” or “70%”, which the prosecution contended was proof that the defendants believed that the requisite concentration for explosion had been reached. Handwritten calculations and notes in Mr Ibrahim’s handwriting were also relied upon. A rota showed over 200 hours’ work boiling the hydrogen peroxide. The prosecution’s expert gave evidence that TATP was a suitable primary explosive for use in a detonator. Evidence was led that shrapnel had been attached to the outside of the plastic tubs. This 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, at 58 per cent concentration, had not reached the necessary concentration required for explosion. He pointed out that if the purpose had been a hoax, no increase in concentration would have been necessary. In response to the defence claim that the hydrogen peroxide had been concentrated and then diluted again with tap water (see paragraph 101 below), he explained that his analysis of the isotope composition of London tap water showed that this was not possible, a conclusion not disputed by the defence expert.

The prosecution also referred to a vast body of telephone and CCTV evidence of extensive contacts between the men from March 2005. A farewell letter written by Mr Mohammed, which the prosecution alleged was a suicide note, was also admitted. 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. A tripod for a video camera had been found in Mr Mohammed’s residence. Mr Mohammed’s fingerprints were on the tripod box and Mr Osman’s fingerprints were on the tripod. An empty box for a video camera had been recovered in Mr Osman’s residence and a video camera had been found in his possession when he was arrested in Rome. The prosecution alleged that the camera had been used to film a suicide video in Mr Mohammed’s residence, although no such video was ever found. The jury also heard evidence from passengers on the trains where three of the bombs had been detonated as to the applicants’ behaviour. In respect of Mr Ibrahim, the bus driver gave evidence of his unusual behaviour in boarding the bus. Finally, the prosecution referred to the lack of any credible plans for what was to happen after the detonations.

Copies of the custody records were provided to the jury.

The first three applicants gave evidence to the effect that their actions had been 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 claimed 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 Omar said that he had told the truth and lies during his safety interviews. He said that he had been truthful as regards the potential harm to the public, but he had not wanted Mr Ibrahim and Mr Mohammed to be killed by the police and so had not provided their true names or locations. He alleged that he had been told that he had better cooperate and had been afraid that he might be tortured, so he had told the officers what they wanted to hear.

Mr Ibrahim explained that he had not said, during his safety interview, that it was a hoax because he had known that he was supposed to get advice from a solicitor and had thought that there was something going on. He accepted that there had been no problem for him to say during the interview that it had been a hoax. He also agreed that seeing a solicitor would not have affected his decision as to whether he should tell the truth or whether he would lie. He said he did not trust the police and, despite the fact that the interview was being tape-recorded, he had believed that they would twist his words. He said that he had tried to protect his coaccused, that he had simply been talking for himself and that he had been confused at the police station and had not known what to say. He had been aware of the purpose of the safety interview, having been told that it was about protecting the public from suicide bombers. He explained that he had felt that he had to answer questions because it was a safety interview designed to save lives, although he had understood that he did not have to speak unless he wanted to. He had not admitted his involvement in making the TATP because he had been directing his answers at the concern as to any outstanding risk to the public. He agreed that he had claimed not to know his coaccused but explained that he had done this because he had not wanted to incriminate anyone. He said that he had decided not to say anything about his case and the plan until he had seen his solicitor; he had been concerned that if he had mentioned the hoax his words might have been misinterpreted or twisted.

Mr Mohammed explained his farewell letter, saying that it had in fact been written on 23 July 2005 after the shooting of the man mistaken for one of the suspects (see paragraph 17 above) because he had thought that he too would be shot by the police. It was pure coincidence that it had been written on the same pad as that used for the detonator. As regards the safety interview, Mr Mohammed said that he had understood that he did not have to speak unless he wanted to, but had thought that he had to talk because it was a safety interview designed to save lives. He explained that he had wanted to see a solicitor but had been interviewed without one. He agreed that by the time that the interview had taken place, he had no longer feared that he would be killed, but said that he had thought that he would be harmed. That, he said, was the sole reason for the lies he had told during the interview. He had said that he was not involved because he had thought that the police officers did not know who he was and that if he denied everything he would be permitted to leave the police station and go home. He said that the statement prepared after he had spoken to his solicitor (see paragraph 56 above) was partially true and partially false. He had not told the whole truth because he had not received legal advice, had felt under pressure and had been upset.

Like the first three applicants, Mr Asiedu’s case prior to trial was that the events of 21 July 2005 had been 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 had been too confused and frightened to refuse the device that had been handed to him but, in accepting it, he had not intended to join or play any part in the conspiracy.

The judge provided copies of his summing-up to counsel in advance of delivery and invited comments from them on its content. During his summing-up to the jury, delivered orally after copies had been distributed to jury members, 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 Mohammed 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 Mohammed. 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 during the safety interviews the defence led at trial, 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.”

As regards Mr Omar’s safety interviews, the judge said:

“On all significant issues it is admitted by Omar that from the outset he did not tell the truth, indeed quite the opposite ... Members of the jury, he denied any responsibility for these devices ...

Over and again he protested that he was telling the truth and that he had told the police all that he knew. Members of the jury, the wrong caution did not lead him in fact to incriminate himself at all in the sense of being compelled to reveal what he says is his true defence, but instead he told a series of exculpatory lies.”

The judge reminded the jury of Mr Omar’s explanation for his conduct during the interviews (see paragraph 102 above). He further noted that Mr Omar’s counsel accepted that the police had been genuinely concerned for the public, that they had been concerned to prevent a further attack and that Mr Omar’s access to legal advice had been delayed as a result. The judge reminded the jury that in normal circumstances, Mr Omar would have been advised by a lawyer prior to interview. Had this been done, he said, Mr Omar might have conducted the interview somewhat differently. The judge noted that counsel accepted that all the safety interviews had been conducted moderately and there was no suggestion that they had been conducted oppressively.

Next, the judge reminded the jury of the circumstances surrounding Mr Ibrahim’s arrival at the police station, noting that at 5 p.m. the duty solicitor had called and asked to speak with him. The judge continued:

“[She] was told that Mr Ibrahim was not available and that was because the two reception rooms with telephone sockets were being used and they may have been used for consultations, fingerprinting, booking in or signing forms. They had at least seventeen prisoners and there was a horrendous pressure on rooms. Unusually, the whole of the custody suite was being used – it was in lockdown mode – for terrorist detainees as of 5.05 p.m. on 28 July. It was the busiest they had ever been. The detainees had to be prevented from seeing or speaking to each other and they had to be carefully supervised and they had to restrict the opportunities, and this restricted the opportunity to move prisoners.”

The judge noted that the duty solicitor had called back at 5.40 p.m. and had again been told by a police officer that no rooms were available. The judge added:

“[The police officer’s] only option was to wait for one of those rooms to fall free and then to call the solicitor back. However, it was for the investigating officers to prioritise who should use the room.”

The judge reminded the jury of the reasons why a safety interview had been authorised and of the evidence of Superintendent MacBrayne:

“He told you that there was at least one outstanding individual. He was fearful that there might be a further suicide attack. He needed to gain information to prevent a further act of terrorism and to arrest perpetrators. He had been in communication with the investigating officers. They were very busy and this was a large-scale terrorist investigation. Urgent interviews, he said, are very rare and he contemplated that this would take place before the detainee saw his solicitor.

He would not have objected to a telephone or a face-to-face interview, so long as it did not delay the interview. He accepted that they could limit the length of time of the consultation. It was for the investigating officer and the custody officer to make the decision as to whether or not there could be a solicitor/client consultation before the interview.”

The judge reminded the jury of Mr Ibrahim’s explanation for his conduct during the safety interviews (see paragraph 103 above).

Finally, the judge told the jury that he had found that between 5 and 8 p.m., Mr Ibrahim should have had telephone contact with a lawyer. He instructed the jury to bear in mind that he had been incorrectly denied telephone legal advice during that period.

In respect of Mr Mohammed, the judge reminded the jury of his evidence as to why he had lied during the safety interview and in his statement prepared after receiving legal advice (see paragraph 104 above).

As regards 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, namely (i) the true events leading up to 21 July 2005; (ii) their knowledge 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 had taken place after they had received legal advice could be held against them.

On 9 July 2007 the jury unanimously convicted the first three applicants and Mr Osman of conspiracy to murder. The jury was unable to reach verdicts in respect of Mr Asiedu and Mr Yahya and a retrial in their cases was ordered. They subsequently pleaded guilty to lesser charges.

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

The first three 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 questioning, 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.”

The court summarised the evidence against the applicants presented at trial, including evidence of their extremist views, the purchase of the hydrogen peroxide and construction of the bombs and the letter written by Mr Mohammed (see paragraphs 96-99 above). It considered that the history of the purchase of the hydrogen peroxide in such vast quantities “[told] something of the commitment of the purchasers”. The handwritten marking on the recovered bottles provided “compelling evidence” that the manufacturers of the bomb had believed that the critical strength had been achieved, and there was “overwhelming evidence” linking all four bombers with the construction of the bombs. As to the applicants’ defence at trial, 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 60-70% 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 ‘70’ or ‘70%’ of 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.”

In respect of the impact of the admission of the safety interviews, the court noted that this had been the subject of challenge before the trial court and constituted the first ground of appeal. The court explained that it would return to a detailed consideration of the issue later in its judgment and commented:

“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.”

Concluding its opening remarks, the court referred to the trial judge’s summing-up and directions to the jury, noting:

“29. Fulford J summed up the case to the jury. The most superficial glance reveals that it was the product of characteristic thoroughness and accuracy. Save in relation to minor and wholly unsubstantiated arguments, it is not criticised by counsel on behalf of the applicants. The essential contentions advanced by counsel are directed at the judge’s decisions in relation to the police interviews ...”

The court then turned to the facts of the case. It considered, first, the facilities at Paddington Green Police Station, noting that it had been imperative to ensure that there was no means of communication between suspects and that cross-contamination in the course of searches of suspects had to be avoided. It explained that the urgent need to address the understandable fears identified by Superintendent McKenna in his October 2006 witness statement (see paragraph 66 above) involved two distinct considerations: first, the lawful arrest and detention of those believed to be responsible for the terrorist attack; and, second, immediate public protection from any further violent incidents. The court observed that those suspected of terrorist offences, if rightly suspected, were likely to be able to provide assistance to investigating officers performing their responsibilities for public safety. It was therefore 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 did not accept that the evidence of safety interviews should never be admitted at trial, explaining:

“36. ... The circumstances in which it is directed by a senior police officer that safety interviews should take place are operational, in short, how best, in a situation of immediate urgency, to secure public safety. The pursuit of this objective with a suspect who is invited to provide the police with relevant information may produce crucial evidence incriminating him in the offence for which he has been detained, or indeed other offences. The admission of the safety interviews or their fruits, in evidence at a subsequent trial is subject to the ordinary principles governing a fair trial, and the over-arching provisions in section 78 of The Police and Criminal Evidence Act 1984 (PACE). Much would turn on the nature of the warning or caution, if any, given by the police to the suspect. Thus, for example, if the suspect were to be assured in terms that any information provided by him would not be used against him, that would provide a powerful argument against the admission of incriminating evidence obtained in consequence. Much, too, may turn on whether the interviews produce evidence directly relevant to the charge which led to the suspect’s original detention, or whether the first connection that the prosecution may establish against him with any offence arises directly from his full co-operation with them during the course of the safety interview. As ever, these will be fact-specific decisions, to be made in the overall circumstances of each individual case. What however is clear is that the legislative structure does not preclude the use of the evidence obtained in safety interviews and, given the existing safeguards available to a defendant and the obligation on the trial judge to make the judgment necessary to enable him to exercise his discretion under section 78 of PACE, it would be wholly inappropriate for this court to impose the kind of self-denying ordinance which the submission based on public policy grounds would require.”

The court emphasised that the safety interviews had not revealed anything which could have led the police to take steps to protect the public and 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. Nevertheless, it noted, the interviews provided important evidence against the applicants, not because they had 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. In that sense, the interviews had produced material on which the prosecution proposed to rely to undermine the applicants’ credibility.

The court accepted that, owing to police error, incorrect cautions had been administered to the applicants before they had 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 had been fully informed and defendant-specific, and that he had approached the relevant issues with care. It examined in detail and approved of the trial judge’s comments as to the choice facing the applicants during questioning and the nature of the circumstances in which the interviews had taken place, and his approach to the exercise of his discretion (see paragraphs 87, 90 and 93 above). It reviewed at length the circumstances of each of the first three applicants’ arrests and questioning.

As regards Mr Omar, the Court of Appeal noted that he had been the first of the defendants to be arrested and that, as a consequence, what he had had to say had been of absolutely crucial importance to the stark public safety issues confronting the police at the time. It observed that during the voir dire, it had been expressly accepted that the decision to hold a safety interview before Mr Omar was granted access to a lawyer had been a valid decision under Schedule 8 of the Terrorism Act 2000 (see paragraphs 64-65 and 68 above and 189 below), that the interviews had been conducted fairly and moderately, and that they had been neither coercive nor oppressive. At trial it had been conceded that, although the safety interviews had been long interviews, the police had not pursued their objective of identifying potential public dangers in a way which had been excessive, that the questioning and length of interviews had not been unfair and that the questions had been focused on public safety issues. At the voir dire, the prosecution had not, therefore, been required to call evidence: the statement of Superintendent McKenna and the content of the safety interviews had been taken as read (see paragraph 65 above). Had Mr Omar questioned the reasons for the decision to delay legal advice, the prosecution would have been entitled to call evidence to explain why the police had believed Mr Omar to be a terrorist. The court continued:

“75. ... For good and understandable forensic reasons, these issues were not raised at trial. Instead, the essential submission on behalf of Omar on the voir dire was that any interview which followed denial of access to a solicitor was inadmissible, and that telling lies in the course of a safety interview should be equated with a failure to mention facts ... In any event the mistaken use of the ‘new style’ caution failed to give adequate protection to Omar because, properly understood, it would have led him to believe that if he chose not to answer questions his silence could not be used against him.”

Having explained how the trial judge dealt with these submissions, the Court of Appeal then observed that it was now faced with an altogether different submission from Mr Omar. It was argued that the entire issue of the safety interviews had been mishandled by Mr Omar’s trial counsel and that it had been inappropriately conceded that Superintendent McKenna’s decision was lawful. The court noted that this was not a retrial, yet it was nevertheless being invited to reconduct the voir dire on the basis of counsel’s submission that, so far as Mr Omar was concerned, the police had acted unlawfully and that their unlawful activity, which had been overlooked at trial, required to be addressed now. It continued:

“80. ... Expressed in this way, in a system in which the rule of law must prevail, the submission is superficially attractive. However it ignores or sidelines two important further considerations. 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.”

In the absence of bad faith, the crucial question was whether to admit the results of the interviews when Mr Omar had been deprived of access to his lawyer, irrespective of whether Mr Omar had been denied the right to have a solicitor contacted as soon as he asked for one. 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 had been 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 had been 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 had constituted a breach of the applicable code (see paragraph 196 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 interview should be admitted.

As regards Mr Mohammed, his counsel had submitted that the entitlement to access to a solicitor before and during his safety interview had been breached. The decision to delay such access was said to have been improper and unfair, and on close analysis, unreasonable. Although bad faith had not been alleged at trial, counsel now suggested that the interview had not been an urgent interview at all since it had started while the solicitors had been on their way to the custody suite. There had therefore been no reason not to delay the interview. Moreover, he had been given the new style caution rather than the old-style caution. The Court of Appeal explained how the trial judge had approached these matters and concluded that it saw no basis for interfering with his decision that the admission of the evidence of the safety interview would 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 met Mr Osman at Clapham Junction train station. The two men returned together to the fourth applicant’s home. Mr Osman 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 their investigation into the 21 July attacks. He agreed to assist them and accompanied them to Kennington Police Station.

The police officers began interviewing the fourth applicant as a witness at 6.15 p.m. By about 7.15 p.m. the officers considered that, as a result of the answers he was giving, he was in danger of incriminating himself and should be cautioned and informed of his right to legal advice. They sought instructions from senior officers. 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 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 had 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 further 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 police showed the fourth applicant a number of photographs and he confirmed the identities 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 statement went on to explain that 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 Eurostar 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.

In the statement, 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 on the morning of 28 July 2005, one of the officers telephoned his superiors to seek further instructions and was told to arrest the fourth applicant. The fourth applicant was arrested and cautioned. He was asked whether he wanted the services of a solicitor but declined saying, “No, maybe after interview if it gets serious”.

On 30 July 2005, after having received legal advice, the fourth applicant was interviewed as a suspect in the presence of his solicitor. He was asked if he had had the chance to go through his written statement with his solicitor and he confirmed that he had. The solicitor was asked if she had had enough time to advise her client and she replied:

“My role is to advise Mr Abdurahman in relation to his rights and procedures in relation to his interview. It is to intervene on his behalf when I feel it’s necessary to intervene and to assist him in drawing to his attention any matters that may arise at any time in relation to his position and in relation to his rights. In that context, Mr Adburahman has had an opportunity of considering the statement that he made voluntarily when he was stopped on 27th July. In the context of your disclosure that has been provided, I have advised him that he has various options open to him and he’s instructed me that he would wish to rely on a statement that he would now wish to read so that it can be recorded on tape and would thereafter not wish to make any further comment in relation to matters until such time as there is additional disclosure, in the hope that his statement will deal with the limited disclosure that has so far been provided and I trust it will do so.”

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 continued:

“I was stopped by the police on Wednesday, 27th July, and agreed to assist them in every way possible. See my statement dated 28th July 2005. I gave as much detail as possible about somebody known to me as Hamdi.”

He went on to correct aspects of his witness statement in so far as it related to the physical description he had given of Mr Osman. He added:

“I would like to emphasise that the CCTV video image of Hamdi (I pause to say that that turned out to be Mr Hussein Osman) released to the media was unrecognisable to me as being an image of him and when Hamdi first claimed knowledge of any participation in these events, I did not believe him or I did not believe him to be involved until I was stopped by the police.”

He made some further small comments about the witness statement and declined to answer any further questions.

On 1 August 2005 the fourth applicant was interviewed as a suspect 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 2005 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. He was charged at 2.20 p.m. on 3 August 2005.

In October 2007 the trial of the fourth applicant and four other men began at the Crown Court at Kingston before Judge Worsley QC and a jury. The fourth applicant was accused of assisting Mr Osman and failing to disclose information concerning the four bombers after the bombings. His codefendants included Mr Sherif, who was accused among other things of giving his passport to the fourth applicant for Mr Osman’s escape to Rome, and Mr Wahbi Mohammed, the brother of the second applicant, accused among other things of taking the video camera used to film suicide messages on the morning of 21 July 2005 and later giving it to the fourth applicant to give to Mr Osman.

The prosecution case was that the fourth applicant 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 and given it to Mr Osman to aid his departure to Rome. Finally, it was alleged that the fourth applicant had collected from Mr Wahbi Mohammed the video camera which had been used to film suicide messages by the would-be bombers, and had given it to Mr Osman.

The fourth applicant applied to have the witness statement of 28 July 2005 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) PACE (see paragraph 199 below). Alternatively, he submitted that it ought to be excluded pursuant to the general discretion to exclude evidence under section 78 PACE (see paragraph 201 below).

The prosecution opposed the application but accepted that the witness statement amounted to a confession for the purposes of section 76 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 (see paragraph 140 above).

At the voir dire, the two police officers gave evidence that, when they had first approached the fourth applicant on the afternoon of 27 July 2005, 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 him 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 suspended the interview and 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 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 had been 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 had been at the police station. Nor, the judge said, had anything been 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. The judge 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 of the Convention 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 prosecution opposed the application 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 2005 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 of where mobile telephone calls had been made), consistent with Mr Osman having made telephone calls at the fourth applicant’s flat;

(iii) CCTV footage showing the fourth applicant meeting Mr Wahbi Mohammed and collecting from him the camera alleged to have been used to film martyrdom videos made by the bombers;

(iv) evidence of telephone contact between the fourth applicant and Mr Sherif, allegedly for the purpose of collecting the latter’s passport for Mr Osman and for which the fourth applicant had given no explanation despite the fact that the two had not met for some years prior to the telephone contact;

(v) mobile telephone cellsite analysis consistent with the fourth applicant having met Mr Sherif to collect the passport;

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

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

(viii) 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;

(ix) The fourth applicant’s police interviews of 30 July and 1 August, after he had been arrested and had received legal advice, 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 148-152 above).

At the conclusion of the prosecution case, the fourth applicant applied 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 that he had been tricked into giving his witness statement. He claimed that 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 judge explained:

“I have to look at the evidence as a whole and the position of Mr Abdurahman as a whole when I’m considering whether the facts may justify the staying of the charges against him.

Mr Abdurahman had the opportunity in the course of interview when he was under caution to say that that which he had said before was untrue, was inaccurate or was given at a time when he was so tired that it was really unreliable and riddled with inaccuracy. He did not do that. At a time when he had been able to consult with his solicitor and consider in detail the statement which he had given to the police, he adopted it and ... to this day he adopts effectively that which he had said to the police.”

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. He noted that the fourth applicant was ably represented, had been able to make clear his position after he made his witness statement and had given his detailed comments on it when he was a suspect. While there was, as the prosecution conceded, an element of unfairness in his being treated initially as a witness, it was right to look at the overall picture. The judge reached the “very clear” conclusion that this was certainly not a case where he came even remotely near saying that it could be unfair for the fourth applicant to be tried.

Mr Osman was called to give evidence by his brother, Mr Sherif. He confirmed that he had sheltered at the fourth applicant’s flat and said that the latter had believed what was said in the news. The fourth applicant had said that the police were looking for him (Mr Osman) but that he was not recognisable from the images disseminated in the media. Mr Osman did not believe that the fourth applicant had been afraid of him. He further confirmed that he had asked the fourth applicant to make contact with Mr Sherif to collect the passport. The fourth applicant had done so at around 8-9 p.m. on the evening of 25 July 2005. After returning with the passport, the fourth applicant had gone to Waterloo station to book a Eurostar ticket for Mr Osman. He had been unable to do so because he did not have the passport number with him, but he had checked the timetable for the following day. Mr Osman was subjected to extensive cross-examination by counsel for the fourth applicant. It was put to him that he was lying to protect his family, an allegation that Mr Osman denied.

Mr Sherif gave oral evidence and was also cross-examined by the fourth applicant’s counsel. He admitted that he had provided the passport for Mr Osman’s travel. He gave evidence that the fourth applicant had come to see him at home on the evening of 24 July 2005 and had asked for his passport in order to enable Mr Osman to leave the country. He had said that Mr Osman was at his (the fourth applicant’s) home. Mr Sherif had been afraid and had not wanted to provide the passport. However, he had subsequently changed his mind. A text message to the fourth applicant later that evening and a telephone call the next day were to make arrangements for the fourth applicant to collect the passport. The fourth applicant had collected the passport from his home at around 7.45 p.m. on 25 July 2005. It was put to Mr Sherif by the fourth applicant’s counsel that he was lying but Mr Sherif insisted that he was telling the truth and that the fourth applicant had collected the passport.

The fourth applicant did not give evidence at trial. His defence was based upon the content of his witness statement of 28 July 2005. It was admitted that he had collected the video camera and had given it to Mr Osman, but counsel explained that this had been an innocent errand and that there had been no attempt to conceal it. It was further admitted that on 25 July 2005 at around 8.45 p.m. the fourth applicant had attended the ticket office at Waterloo Station. It was not admitted that he had collected the passport, and counsel emphasised that the only evidence to support this had been given by Mr Osman and Mr Sherif, both of whom he said were unreliable and had ulterior motives for the evidence that they had given. Counsel invited the jury to ignore the witness statement, referring to the admitted breaches of the code by the police. He emphasised that the interview had taken place over a long period of time, that there had been a failure to caution the fourth applicant and that he had not been given legal advice.

Before the jury retired to consider its verdict, the trial judge delivered his summing-up. On the matter of the witness statement, he directed them as follows:

“You remember the long, handwritten witness statement that Abdurahman signed and the subsequent interviews when he answered questions asked by the police. The prosecution say that, in addition to the other evidence against him, the defendant, Abdurahman, made a witness statement which amounts to a confession on which you can rely. The defendant says that you should not rely upon his written witness statement since it was obtained in circumstances likely to render it unreliable.

He says that he was tricked by the police into providing an account by them treating him as a witness when, in breach of the codes of practice laid down for the police to follow, he should first have been cautioned; secondly, allowed access to a solicitor; thirdly, had his interview tape-recorded; and fourthly, should have been given suitable and effective, uninterrupted rest periods.

The law is this, when considering his case, the question for you to consider is whether Abdurahman’s witness statement is something you should take into account as evidence in his case or whether you should disregard it. The question is not whether you think that it is fair that he’s being tried. If you think that the statement was or might have been obtained by something said or done which was likely to render it unreliable, you must disregard it, even if you think that it was or may have been true.

Breach of the code, however, does not lead to the automatic rejection as evidence of a written statement made by a witness who is later made a defendant. If you are sure that, despite the breaches of the code, the statement was freely given in the sense that he would have said those things whether or not he was cautioned and even if all the rules in the code had been followed and that it was true, then you will take it into account when considering your verdicts in relation to Abdurahman.

The prosecution say that, whatever breaches may have arisen in respect of the codes of practice which the police should obey, you can safely rely on the written witness statement made and signed by Abdurahman because he clearly adopted it in his interviews as ‘valuable information’ which he was providing to the police. Indeed he made detailed corrections which reflected accurately what he always wished to say at a time when he had been cautioned and had a solicitor to advise him. Abdurahman has chosen, as is his right, not to tell you on oath why he said the things he did and what he would have done if arrested and cautioned. Do not speculate.”

As regards the fourth applicant’s silence at trial, the judge directed the jury as follows:

“The defendant, Abdurahman, as you know, has not given evidence before you. That is his right, he is entitled to remain silent and to require the prosecution to make you sure of his guilt. You must not assume that he is guilty of any offence because he has not given evidence.

Two matters arise from his silence. First, you try this case according to the evidence and you will appreciate that Abdurahman has not given any evidence at this trial to undermine, contradict or explain the evidence put before you by the prosecution. Secondly, his silence at this trial may count against him. This is because you may draw the conclusion that he has not given evidence because he has no answer to the prosecution’s case or none that would bear examination. If you do draw that conclusion, you must not convict him wholly or mainly on the strength of it but you may treat it as additional support for the prosecution case.

However, you may only draw such a conclusion against him if you think it’s a fair and proper conclusion, if you’re satisfied about two things. First, that the prosecution’s case is so strong that it clearly calls for an answer by him; secondly, that the only sensible explanation for his silence is that he has no answer to the prosecution allegations or none that would bear examination.

The defence, I remind you, invite you not to draw any conclusion from his silence on the basis that there was an admitted breach of the code of practice which is in place to protect defendants such that they say you should reject the prosecution submission but you can safely rely on anything said by him to the police in his long written statement. If you think that the breaches of the code amount to a good reason why you should not draw any conclusion from his silence, then do not do so. Otherwise, subject to what I have said, you may do so.”

The judge reminded the jury of the prosecution case and the various elements of evidence against the fourth applicant (see paragraph 162 above). He explained:

“The prosecution rely on the witness statement he made and signed because they say it was adopted by him and that he’s an intelligent young man, apparently a capable employee at a solicitor’s firm. There is no reference, they point out, to the camera, the passport, and he lied over the date and destination of Osman’s departure.”

The judge also reminded the jury of the fourth applicant’s defence, set out in his witness statement, and of the submissions of his defence counsel at trial.

On 4 February 2008, the fourth applicant was convicted of assisting Mr Osman (count 12) and of four counts of failing to disclose information about the bombers after the attacks (counts 16-19). He was sentenced to five years’ imprisonment on count 12 and five years’ imprisonment on counts 16-19, to be served consecutively. Mr Sherif was convicted of assisting Mr Osman and failing to disclose information about him after the bombings. He was acquitted of having had prior knowledge of the attacks. He, too, was sentenced to five years’ imprisonment on each count, to be served consecutively.

The fourth applicant and his codefendants 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 Abdurahman 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. Abdurahman 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 Abdurahman, 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 appellant’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 Abdurahman’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 this appellant 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.”

In respect of the appeal against sentence, the court acknowledged that personal circumstances such as youth or vulnerability might be pertinent to sentence, 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 Abdurahman 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 ...”

It reduced the sentences in respect of count 12 and counts 16-19 to four years’ imprisonment each. It noted that the conviction for failing to disclose information about Mr Osman added little to the criminality involved in assisting him, so the sentence on that count was to be served concurrently. The remaining counts, involving his failure to disclose information about the other bombers, were clearly a separate offence that justified a consecutive sentence. The consequence was a total of eight years’ imprisonment. In dealing with Mr Sherif’s appeal against sentence, the court noted the critical role that he 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”. Taking into account 467 days spent under home arrest, he was sentenced to six years and nine months’ imprisonment on the count of assisting Mr Osman. A four-year sentence for failing to disclose information about Mr Osman was to be served concurrently.

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