Radical cleric European human rights claim rejected

8 February 2011 by

Mustafa Kamal MUSTAFA (ABU HAMZA) (No. 1) v the United Kingdom – 31411/07 [2011] ECHR 211 (18 January 2011) – Read judgment

The European Court of Human Rights has rejected radical preacher Abu Hamza’s claim that his 2005-6 trial, at which he was convicted of soliciting to murder, inciting racial hatred and terrorism charges, was unfair. He claimed that a virulent media campaign against him and the events of 9/11 made it impossible for the jury to be impartial.

Abu Hamza has lived in the UK since 1979. from 1997-2003 was Imam at the Finsbury Park Mosque, London. Between 1996 and 2000 he delivered a number of sermons and speeches which later formed the basis for charges of soliciting to murder, using threatening, abusive or insulting words or behaviour with intent to stir up racial hatred, possessing a document or recording with the same intent.

His trial began in July 2005 and he was ultimately convicted, in February 2006, of six counts of soliciting to murder, as well as various counts of racial hatred and terrorism. The jury acquitted him of three counts of soliciting to murder and one count of using threatening, abusive or insulting words or behaviour with intent to stir up racial hatred.

To Europe

Hamza argued that his prosecution breached his article 6 right to a fair trail for three reasons:

First, it was in breach of a legitimate expectation of non-prosecution which had been created by the authorities. His dealings with the Security Service and others had led him to believe his speeches were unwelcome but lawful And tthe decision to deprive him of his British citizenship (successfully appealed by Hamza – see our post) implied that the authorities had made a choice to deal with him administratively rather than through the criminal courts.

Second, he argued that the delay in prosecuting him rendered his trial unfair because his speeches had been given before 11 September 2001. This irretrievably destroyed the context in which they had been given and made it impossible for him to explain properly his actions at the time.

Third, the adverse publicity in his case rendered his trial unfair. He relied on the publicity given to the freezing of his funds by the Bank of England, his designation as a global terrorist by the President of the United States, his suspension as Imam by the Charity Commission, the raid on Finsbury Park Mosque and the citizenship decision. As such, he was not entitled to the protection that a person charged with a criminal offence otherwise enjoyed from adverse publicity, and from executive prejudgment of guilt.

Not this time

The court roundly rejected Hamza’s three arguments.

On assurances of non-prosecution, the actions of the security services raise questions as to why the officials “thought fit to give the applicant warnings as to his conduct and why they felt able to advise on whether that conduct amounted to incitement“. However, it must have been clear to Hamza “that the Security Service officials were not qualified to provide that advice“. Moreover, it must also have been clear that “they were not in a position to provide assurances as to whether or not he would be prosecuted“, which was not to be their decision.

As to the delay in prosecuting him leading to the jury’s opinions being coloured by the events of 9/11, the court found no evidence that the jury in fact was prejudiced. The jury also acquitted him of certain charges, which show he was able – in some instances at least – to explain his actions to to them.

As to the effect of the media campaign against him, the court accepted that “a virulent media campaign can in certain circumstances undermine the fairness of a trial by influencing public opinion and thus the jury“. But in most cases the trial process and the directions of a judge can cure these problems. And a national court is better placed to decide if it is unfair. The court emphasised (ironically, given the recent events surrounding the Jo Yeates murder) how experienced the UK was at addressing issues of jury prejudice:

in England and Wales, the courts enjoy wide powers to prevent adverse media reporting during trial and can, if necessary, stay proceedings on grounds of an abuse of process. As was noted in Montgomery, this approach reflects not only the experience of the United Kingdom courts, but that of criminal justice systems throughout the common law world. In the Court’s view, that experience should be respected.

Finally, the court held that there was no reason to view the secretary’s of state’s decision to deprive Hamza of citizenship as a breach of his right to be presumed innocent. There was “no direct link” between the citizenship decision and the later decision by the Crown Prosecution Service to prosecute him.

More to come

This is only the first of two claims which Abu Hamza has made to Europe. The second relates to the United States’ request to extradite him on terrorism charges (see my post for the full background). He is again alleging that the publicity surrounding his case would make it impossible to find an impartial jury, and that the US justice system – in particular the “super max” prison where he is likely to be held if extradited – breach human rights.

It was always going to be difficult for Hamza to convince the Strasbourg court that his trial was unfair due to jury prejudice. This is a judgment which is usually left to national courts, and the European court appears to trust the UK’s appraisal. His arguments over extradition may be more successful, which could lead to another run of “human rights act is a terrorists’ charter” articles. Watch this space.

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1 comment;

  1. s.Legree says:

    When will we wake up? Some countries simply execute these types, others kick `em out.
    We stand for the three card trick, DO SOMETHING, or lets have a military junta.

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