A lift in a burning building? – Grand Chamber rules on terrorist Article 6 claims

19 September 2016 by

Ibralondon-bombings21him and others v United Kingdom [GC], App nos. 50541/08, 50571/08, 50573/08, and 40351/09 – read the judgment here

The Grand Chamber has found a violation of Article 6(1) and 6(3)(c) in relation to one of the four applicants before it, partially overturning the earlier decision of the Chamber and providing much food for thought on the future of Article 6.

by David Scott. Many thanks to my colleagues at University of Zurich for comments on earlier drafts of this piece. Any mistakes are undoubtedly my own.



First three applicants

The first three applicants, Messrs. Ibrahim, Mohammed, and Omar, were involved in an attempted terrorist attack two weeks after the 7/7 London bombings. Along with a fourth man—Mr Osman, who was not involved in the Strasbourg proceedings—they detonated four bombs on three underground trains and a bus in central London on 21 July 2005. While all four bombs successfully detonated, they failed to explode as the main charge was insufficiently concentrated. A fifth bomb was discovered two days later in a London park, abandoned and undetonated. Evidence showed that, had the concentration been higher or had a stronger detonator been used, the bombs would have been viable.

After fleeing the scenes of their attempted explosions, a nationwide manhunt began for the four men. This manhunt inadvertently led to the death of Jean Charles de Menezes, the Brazilian man shot by police on the London Underground on 22 July 2005, due to him being mistaken for Mr Osman (the Grand Chamber dealt with this case earlier in the year, in Armani Da Silva v. the United Kingdom [GC], where the Court found no violation of Article 2—see our coverage here).

All four men were arrested at the tail end of July. Upon arrest, the applicants were detained and subjected to a “safety interview” under the Terrorism Act 2000. This type of interview allows the police to delay access to legal assistance if there’s an urgent need to interview the suspect in order to protect life and prevent serious damage to property. These interviews differed in length for each applicant: Mr Omar was denied legal advice for a little over eight hours, and was questioned for a total of about three hours; Mr Ibrahim’s access to legal advice was delayed for around seven hours, and was questioned for about half an hour; and Mr Mohammed’s access to legal advice was delayed for about four hours, during which time eight minutes of questioning took place. Various incriminating statements were made during these interviews.

At trial the applicants sought to argue that the bombs had been created as an elaborate hoax in protest against the war in Iraq. The bombs were 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 became whether the failure of the devices to explode was an intentional design flaw or a mistake in construction—with the evidence from the safety interviews strongly undermining their defence.

The applicants sought to have the safety interviews excluded from the trial on the grounds that the evidence would have an adverse effect on the fairness of proceedings. The admissibility of the evidence was assessed through a voir dire (a “trial within a trial”). The trial judge found that evidence could be admitted, for a number of reasons: the police were justified in their use of safety interviews, considering the urgent need to locate people or items that could pose a danger to the public, and had followed the relevant legal framework; that the interviews had not caused significant unfairness or material infringement of the applicants’ right to a fair trial; and that much of the evidence given was not, in fact, incriminatory, as the applicants had instead given false statements during their interview.

On 9 July 2007 the four were unanimously convicted of conspiracy to murder and sentenced to life imprisonment with a minimum term of forty years’ imprisonment. Leave to appeal was further rejected by the Court of Appeal on 23 April 2008.

Fourth applicant

The fourth applicant before the Court, Mr Abdurahman, had provided shelter to Mr Osman while he was on the run from the police. He was interviewed by police on 27 and 28 July 2005 as a potential witness. Within an hour of first being interviewed, police officers considered that, as a result of the answers the fourth applicant was giving, he was in danger of incriminating himself and should be cautioned and informed of his right to legal advice. Senior officers instructed them to continue to interview the applicant as a witness. The applicant eventually signed a witness statement on the morning of 28 July 2005.

The fourth applicant was then arrested. On 30 July 2005, after receiving legal advice, he was interviewed again, where he chose to read a prepared statement confirming and correcting much of the witness statement taken two days before. After successive interviews where no further statements were made, the applicant was charged on 3 August 2005 with assisting Mr Osman and failing to disclose information concerning the other bombers.

During his trial on October 2007, the applicant applied to have the witness statement of 28 July 2005 excluded, relying on four grounds: 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; that this breach had been deliberate; that the applicant had been induced to make the statement on the pretence that he was a witness; and that the statement had been taken in the early hours of the morning, when he was tired.

A similar voir dire was held, and while the trial judge found that there had indeed been a breach of the applicable code at the time when the fourth applicant had made his written witness statement due to the crystallisation of suspicion following his earlier first account, the witness statement should not be excluded as there was no evidence of oppression in gaining this statement. In addition, it was significant that the fourth applicant had “freely adopted” the witness statement even after being cautioned and receiving legal advice.

The fourth applicant was convicted on 4 February 2008 and sentenced to 10 years imprisonment. His appeal was dismissed on 21 November 2008.

Chamber judgment

Applications were lodged in Strasbourg in respect of the first three applicants on 22 October 2008 and 29 July 2009 in respect of the fourth applicant. The first three applicants sought to argue that solicitors could have been contacted prior to the safety interviews, and that “the decision to hold them incommunicado was a convenience to police officers acting under great pressure but not a necessity” [168, Chamber judgment]. The subsequent admission of these statements rendered the trial unfair [169, Chamber judgment]. The fourth applicant argued that domestic security concerns could not be used to override the requirement to properly caution him and provide him with legal assistance prior to his interview [181-187, Chamber judgment].

On 16 December 2014 the Chamber found no violation of Articles 6(1) and 6(3)(c) in respect of any of the applicants. It reiterated that the Court’s primary concern under Article 6(1) was to evaluate the overall fairness of the proceedings, in line with the Court’s previous judgment in Salduz v. Turkey [GC]. It found that there had been compelling reasons to delay the applicants’ access to legal advice in light of the exceptionally serious and imminent threat to public safety [197-203, Chamber judgment]. It further found that no undue prejudice had been caused by the admission of the statements at trial, giving particular consideration to the counterbalancing safeguards contained in the legislative framework, the trial judge’s rulings and directions to the jury, and the strength of the other evidence against the applicants [204-224, Chamber judgment].

The case was subsequently referred to the Grand Chamber on 1 June 2015.

Arguments before the Grand Chamber

First three applicants [236-238]

The first three applicants argued that Salduz should be understood as imposing a “bright-line rule” prohibiting the use at trial of statements obtained during police interrogation in the absence of a lawyer. While the allegations against the applicants were extremely serious, this could not alone justify for restriction of their right to legal assistance. The absence of compelling reasons was thus sufficient in and of itself to result in a violation of Article 6(1) and (3)(c).

In any event, the trial judge’s description of the evidence contained in the safety interviews as not marginal or unimportant but “evidence which could provide the jury with considerable insight” had resulted in undue prejudice in their cases. The Chamber had incorrectly relied on the strength of other evidence in the case and given too much scope to the prosecution to argue in favour of the admission of evidence obtained in breach of procedural rights.

Fourth applicant [239-242]

The fourth applicant argued that the deliberate failure to caution him had resulted in a denial of his fundamental right against self-incrimination, with the evidence contained in his witness statement “highly material” to his conviction. While accepting that the right to legal advice could be temporarily restricted for compelling reasons on national security grounds, no derogation from the right to silence was permitted, and in any event there were no compelling reasons to restrict his right of access to a lawyer as his interview had gone far beyond obtaining information of the utmost relevance to public safety. Similar to the first three applicants, the fourth applicant argued that the absence of compelling reasons was sufficient in and of itself to result in a violation of Article 6(1) and (3) (c).

Additionally, the fourth applicant alleged that he had been “deliberately induced” into making the statement on the false premise that he was a witness. Should compelling reasons to restrict his rights have existed, such restriction should have led to the holding of a safety interview, as in the first three applicants’ cases. Unlike the statements of the first three applicants, his statement had also been self-incriminatory, had gone to the very heart of the prosecution case against him, and had thus rendered the entirety of his proceedings unfair. The fact that the applicant did not try to retract the witness statement later was not decisive to this finding.

Government [243-246]

The Government argued that, while a fundamental right, access to a lawyer at the investigative stage was not absolute. Such an inflexible approach failed to recognise that the rights of the suspect at that stage might compete with other important public interest factors, and the guarantees in Article 6(3) were specific aspects to be considered when evaluating whether, overall, the proceedings had been fair. This approach was in line with the Court’s case law, in particular its recent judgment in Dvorski v. Croatia [GC], paragraph 82.

The Government argued that the Chamber had been correct in following the Salduz judgment, which applied a two-stage test for analysing the fairness of a denial of legal assistance: whether there were compelling reasons for the delay; and whether there was undue prejudice to the individual’s defence rights, taking into account the fairness of the proceedings as a whole. The absence of compelling reasons would not therefore automatically result in a violation of Article 6, although the absence of compelling reasons would be a very important factor for assessing the fairness of the proceedings as a whole [244].

In the present case, the justification for restriction was “absolutely overwhelming” given the “potential for loss of life on a large scale, the urgent need to obtain information on planned attacks and the severe practical constraints” [245]. The restriction had followed the domestic legal framework, which limited the delay to a maximum of forty-eight hours, with the restriction immediately ending once the reasons for the delay ceased to subsist. The rights of the defence had not been unduly or irretrievably prejudiced by the admission of the first three applicants’ statements.

In relation to the fourth applicant, the Government accepted that there had come a point during questioning when the applicable code of practice had required the police to administer a caution. However, they considered that there were compelling reasons for the decision not to caution him, in light of the exceptional circumstances and extreme conditions in which the police were operating. This failure to caution did not lead automatically to a violation of Article 6, however, as it was only one aspect of the protection against self-incrimination. This matter had been properly and carefully examined by the trial judge, and there had subsequently been no undue prejudice at the trial [246].

Grand Chamber majority opinion

Before analysing the case before it, the Court set out a number of general points on Article 6. First, the Court noted that the minimum rights under Article 6(3) (including the right to legal assistance) should be considered as “specific aspects of Article 6(1)” for considering the overall fairness of the proceedings [251—more on this below]. Accordingly, the Court agreed with the Government that Salduz imposed a two-part test in this regard: restriction of the right to legal assistance would only be compliant with Article 6 when there were compelling reasons for the temporary restrictions on the applicants’ access to legal advice, and when the admission of the comments made during the safety interviews did not render the criminal proceedings as a whole unfair [257]. Further, it rejected the applicants’ contention that a lack of compelling reasons would amount to an automatic violation of Article 6, although it acknowledged that a failure to show such compelling reasons would lead to the Court applying a “very strict scrutiny” to its assessment of the overall fairness of the proceedings, with the balance weighed heavily towards a finding of a violation. The onus would then be on the Government to explain why legal assistance had been exceptionally delayed in that specific case [262-265].

First three applicants

In relation to the first three applicants, the Court had “no doubt” that there was a need to avert serious danger to life, liberty, and physical integrity. The Government “had every reason to assume that the conspiracy was an attempt to replicate the events of 7 July”, that “the perpetrators of the attack were still at liberty and free to detonate other bombs, possibly successfully”, and that “the fact that the bombs had not exploded was merely a fortuitous coincidence”. The discovery of a fifth, undetonated bomb two days after the attacks “gave further credence to this very real fear” [276]. Moreover, it was clear that the legislative framework governing the use of safety interviews had been followed, and compliance with this framework was reviewed by both the trial judge and the Court of Appeal [277]. The Court was thus satisfied that the Government had convincingly demonstrated the compelling reasons for the temporary restrictions to the first three applicants’ right to legal advice [279].

Turning to the second limb of the Salduz test, the Court found no reason to challenge the overall fairness of the first three applicants’ proceedings. The interviews were strictly governed by a legislative framework, which had been properly followed by police and assessed by the trial judge during the voir dire [280-282]. Even after admission, the statements could be challenged during the trial, and all three applicants were able to provide further evidence in support of their case. All three had done exactly that, in fact, providing explanations for why they had lied during their safety interviews [283]. All of this was again open to challenge and reassessment before the Court of Appeal [284]. Additionally, there was significant other evidence laid before the jury to prove the applicants’ guilt [290-291], and the trial judge had been careful in his direction of the jury when considering the available evidence, including the contents of the interviews [292]. Finally, there was a “strong public interest in the investigation and punishment of the offences in question” [293—more on this below]. Accordingly, the Court was satisfied that proceedings as a whole were fair, and thus found no violation of Articles 6(1) and (3)(c) of the Convention in respect of the first three applicants [294].

Fourth applicant

The fourth applicant’s case was more complicated. While the first three applicants had been charged at the time of their safety interviews, the fourth applicant had been ostensibly interviewed as a witness at the time of his statement. The Court thus had to ask whether the protections given under Article 6 applied in the absence of a formal “criminal charge”. The Court followed the “autonomous Convention meaning” of the term: “a ‘criminal charge’ exists from the moment that an individual is officially notified by the competent authority of an allegation that he has committed a criminal offence, or from the point at which his situation has been substantially affected by actions taken by the authorities as a result of a suspicion against him” [249]. Accordingly, the Court found that from the moment suspicion crystallised that the fourth applicant had committed a criminal offence, his situation was subject to Article 6 protection [296].

Turning to apply the Salduz test, the Court was significantly less convinced by the Government’s “compelling reasons” to delay legal assistance. Unlike the safety interviews carried out for the first three applicants, the failure to provide a proper caution to the fourth applicant had no basis in domestic law, and had led to him being “misled as to his procedural rights”. In addition, the legislative framework allowing for safety interviews could equally have been applied for the fourth applicant, and no reason was given by the domestic authorities as to why this had not been used. Moreover, the lack of a legal framework left the decision to not properly caution the fourth applicant unreviewable before either the domestic courts or the ECtHR [299]. Accordingly, the Court found that the Government had failed to convincingly demonstrate the existence of compelling reasons for its restrictions on the fourth applicant’s rights [300].

As noted above, this was not immediately fatal to the case. But the burden now lay with the Government to show why the fourth applicant’s rights had been exceptionally restricted. The Court was unsatisfied in this regard. The fourth applicant had been left unaware of his privilege against self-incrimination—a privilege that lies at the heart of fair procedure under Article 6 [266]—and denial of this privilege alone constituted a shortcoming in terms of Article 6. This shortcoming was only made all the more significant by the lack of access to a lawyer, compounding the unfairness of the proceedings [303]. Moreover, the lack of legislative framework justifying such a restriction was not examined by the trial judge, and was thus unchallengeable before the Court of Appeal [304-305].

The Court also took issue with the finding of the trial judge that the witness statement could not be found to be unreliable or have been compelled through “oppression”, particularly considering that the applicant had not sought to challenge the statement after the fact. That the witness statement amounted to a confession was not disputed, said the Court; the problem was that it had been obtained “in breach of the applicable code of practice and in circumstances where he had not been notified of his right to legal advice or his privilege against selfincrimination”, leading to the applicant being “misled as to his fundamental procedural rights during questioning” [306]. The centrality of his statement to the prosecution case further cemented its importance for the overall proceedings, in particular as “it was the content of the statement itself which first provided the grounds upon which the police suspected the fourth applicant of involvement in a criminal offence” [307-309]. The trial judge’s directions to the jury further left the jury with “excessive discretion as to the manner in which the statement, and its probative value, were to be taken into account, irrespective of the fact that it had been obtained without access to legal advice and without the fourth applicant having being informed of his right to remain silent” [310]. All these factors led to a clear violation of Article 6(1) and 6(3)(c) in respect of the fourth applicant; although, somewhat unusually, the applicant’s claim for costs and expenses was considered by the Court to be “excessive”, and thus reduced to only 16,000 euro [318].


This is a dense case that will likely be pored over and cited for years to come. For present purposes, noting a few interesting points will suffice.

Clarification (or confusion?) of Salduz

Of most interest is the discussion of Salduz’s two-part test. The Court explicitly took the opportunity to clarify various elements of its jurisprudence in relation to Salduz [257]—something that was requested by the third party intervention of Fair Trials International [247-248]. How successful this clarification has been is open for discussion, particularly when one considers the six (!!!) separate opinions adjoined to the end of the judgment. Only a brief overview of some of the controversies follows.

As noted above, Salduz imposes a two-part test for justifying restrictions to the right to legal assistance. The majority interprets the test in this way:

The test set out in Salduz for assessing whether a restriction on access to a lawyer is compatible with the right to a fair trial is composed of two stages. In the first stage the Court must assess whether there were compelling reasons for the restriction. In the second stage, it must evaluate the prejudice caused to the rights of the defence by the restriction in the case in question. In other words, the Court must examine the impact of the restriction on the overall fairness of the proceedings and decide whether the proceedings as a whole were fair. [257]

This interpretation is lambasted in the joint partly dissenting, partly concurring opinion of Judges Sajó and Laffranque. While agreeing with the first two sentences, the third “waters down” the protections offered in the original Salduz judgment by looking not only at the prejudice caused to the defence but also the importance of this prejudice within the entire trial.

Here’s the paragraph of Salduz in question:

…the Court finds that in order for the right to a fair trial to remain sufficiently “practical and effective” … Article 6 § 1 requires that, as a rule, access to a lawyer should be provided as from the first interrogation of a suspect by the police, unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right. Even where compelling reasons may exceptionally justify denial of access to a lawyer, such restriction—whatever its justification—must not unduly prejudice the rights of the accused under Article 6…The rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction. [55]

This last sentence, argues the dissent, is crucial. The original Salduz test would lead to “irretrievably” prejudicial evidence being excluded automatically to ensure fairness, regardless of their eventual bearing on the trial. Sajó and Laffranque maintain that the majority’s interpretation in Ibrahim weakens the “irretrievable prejudice” principle from an absolute requirement to only one element of the overall fairness of proceedings. The majority’s belief that it “must” examine the impact of the restriction within the overall fairness of the proceedings is not supported by Salduz and “diminishes the level of protection without good reason”, backtracking and frustrating “years of European efforts to provide a high level of protection to procedural rights”:

To sum up: even if Article 6 § 3 rights are specific aspects of the right to a fair trial, as Can and human logic clearly indicate, there can be instances of irretrievable damage to that fairness that preclude fairness as a whole. Such a situation of irretrievable prejudice has been identified in Salduz as an absolute rule, and not as a rule with exceptions. We cannot see how irretrievable prejudice can be remedied without the exclusionary rule [requiring the exclusion of such evidence at trial]. The new approach does not provide any counterbalancing solution.

That’s the first point to consider. Turning back to the majority decision, it continues by clarifying what would be acknowledged as “compelling reasons” for a restriction on the right to legal assistance. Arguments advanced by a respondent Government must be assessed on a “case-by-case basis”, bearing in mind that the fundamental nature and importance of early access to legal advice requires that “restrictions on access to legal advice are permitted only in exceptional circumstances, must be of a temporary nature and must be based on an individual assessment of the particular circumstances of the case” [258]. The Court accepted that the existence of an urgent need to avert serious adverse consequences for life, liberty, or physical integrity can amount to compelling reasons, as was the case here [259]. “In such circumstances”, it states, “there is a pressing duty on the authorities to protect the rights of potential or actual victims under Articles 2, 3 and 5 § 1 of the Convention in particular” [259].

This point is also taken up by Sajó and Laffranque. They argue that the majority has misunderstood the question at hand:

The Court found that there were compelling reasons for not having access to a lawyer, given the exceptional circumstances in the aftermath of repeated terror attacks. We cannot agree more: this was an exceptional moment, requiring determined police action. But that is not the issue here…the question is not whether there were exceptional circumstances and an urgent need, but whether there were compelling reasons not to have access to a lawyer under these circumstances. [emphasis added]

While the seriousness of the situation required urgent interview, there was no reason to deny access to legal advice when it was available (as had been the case in particular for Mr Ibrahim, who was denied telephone consultation twice before the safety interview and whose duty solicitor was denied access until the conclusion of the interview). The original Salduz test would allow for an urgent interview if legal assistance was not immediately available, but should not be interpreted to deny any legal assistance on the grounds of urgeny. Moreover, says the dissent, this conclusion could be reached regardless of whether the Court followed its own “overall fairness reasoning” or the “irretrievability” interpretation of Salduz advanced by Sajó and Laffranque. As such, Sajó and Laffranque would have found a violation of Article 6(1) and 6(3)(c) in respect of the first three applicants as well as the fourth.

Sajó and Laffranque argue that the majority here conducts “a very deferential analysis” of the domestic proceedings, and the “strong public interest in a conviction” should not “overrule the Convention guarantees”. In fact, as the opinion notes, such compelling reasons may be justification for derogation under Article 15. But to perform a balancing exercise of this sort under Article 6 was irrational: “If punishment is of ‘the most compelling nature’, than [sic] what is the role of all the safeguards granted by the Convention?”

Interestingly, the majority’s opinion here is critiqued from the entirely opposite direction to Sajó and Laffranque, in the joint partly dissenting opinion of Judges Hajiyev, Yudkivska, Lemmens, Mahoney, Silvis, and O’Leary. Agreeing with the majority’s interpretation of the Article 6 case law, these judges argued that the majority’s assessment in respect of the fourth applicant was “excessively narrow”, which “ignores the fact that the matters calling for Convention analysis in the present case directly involve the human rights of many other people than the four applicants”.

For them, the essential question was not whether there were compelling reasons to deny legal assistance to the fourth applicant, but whether the authorities were “justified in thinking at the relevant time that cautioning the witness as a suspect would have frustrated fulfilment of the urgent need to avert the serious consequences which would result from a successfully executed terrorist attack”. The majority’s opinion focused “too narrowly on the purely procedural aspects of the fourth applicant’s case, to the detriment of the wider-angled assessment of the overall picture, including the impact on the interests of other holders of Convention rights as explained above”, and its requirement of “detailed regulation to the degree that the majority wish” for justifying the restriction of the fourth applicant’s procedural rights “appears to be demanding of the Contracting States something approaching perfection”. Accordingly, compelling reasons had existed to deny legal assistance to the fourth applicant, satisfying the burden of proof placed on the Government to justify its restrictions, and accordingly the proceedings could not be found in violation of Article 6(1) and 6(3)(c).

 Approach towards Article 6

At paragraph 251 the majority asserts, with little fanfare or explanation, that the minimum rights listed in Article 6(3) should be treated as specific aspects of the concept of a fair trial under Article 6(1). While the Court cites a number of previous cases to support its position (Salduz, paragraph 50; Gäfgen v. Germany [GC], paragraph 169; Dvorski, paragraph 76), this approach has been criticised as inconsistent (in the sense that the Court has not always followed such an approach—see for example other approaches in Luedicke, Belkacem and Koc v. Germany, where 6(3) is upheld as containing standalone minimum rights [42]; and Daud v. Portugal, where the case is analysed via the specific rights of Article 6(3), instead of under 6(1) [33]) and unreflective of the actual construction of Article 6. By treating the guarantees under Article 6(3) as “specific aspects” of Article 6(1), subjected to a test of “overall fairness”, one of the longest and most detailed rights in the Convention is conflated down to a two-word generic “fair trial” guarantee. This appears to go against the text of the Convention, subsuming the “minimum rights” enumerated later in the Article under a general concept of “fairness” and blurring the distinction between the “fair and public hearing” requirement under Article 6(1)—applicable to criminal charges and the determination of an individual’s “civil rights and obligations”—with the protections under Articles 6(2) and (3) for criminal charges alone.

The question of Article 6’s “internal structure” has been raised on this blog before (see Paul Harvey’s post here), and in a case where the Court appears to be striving to clarify some elements of its jurisprudence, it’s unfortunate the opportunity has been missed to justify and explicitly establish a more coherent approach to Article 6.

 Article 6 and the pre-trial stage

A final point of note is Judge Mahoney’s concurring separate opinion on the question of when Article 6 protections attach. While the majority assert that that a “criminal charge” needs to be established at the time the applicant made their statements [249, 275, 296], Mahoney argues that this goes against the Court’s previous established case law. In support of this proposition he notes the Court’s pre-existing case law on police entrapment, and further points to paragraph 55 of Salduz, which reads in relevant part:

in order for the right to a fair trial to remain sufficiently ‘practical and effective’…, Article 6 §1 requires that, as a rule, access to a lawyer should be provided as from the first interrogation of a suspect by the police, unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right.

Mahoney notes no mention of a requirement for a “criminal charge” to have already been brought when the initial police interview is carried out in order for Article 6 protection to attach. While of no bearing to the immediate case, Mahoney argues that once a person has been “charged” for the purposes of Article 6, the fairness guarantee should be seen to reach back to events occurring before “in so far as those facts are capable of influencing the fairness of the trial”. The majority’s approach risks rendering the status of being a suspect as overlapping with being charged with a criminal offence, and as Mahoney summarises:

To remove the legal distinction between a person suspected of and a person charged with the commission of a criminal offence strikes me as excessive and at odds with the reality of the criminal process in its wider sense, with its successive stages of investigation, prosecution and trial, while at the same time being wholly unnecessary for the effective application of the Salduz rule (as for that of the rule against entrapment) once a person has been “charged”. The result of removing that distinction is simply to introduce unnecessary conceptual confusion. That conceptual confusion has no consequences for the outcome of the present case, but may well have in future cases, I fear.

It may be Mahoney’s analysis that is conceptually confused, however. Within his opinion he appears to make a major conceptual mistake. This first happens in the sixth paragraph [emphasis added]:

A person may or may not already have been “charged” by the police when first interviewed. He or she may only be no more than a suspect at that stage. That does not alter the fact that, “in principle” (that is to say, as a general rule but not excluding exceptions), admission in evidence at a criminal trial of a statement made in an initial police interview as a suspect without access to legal advice will render the trial unfair. The existence or not of a “charge” at the moment of the initial police interview is, I believe, immaterial to the safeguard for criminal defendants that the Salduz rule represents. The Court’s case-law on access to legal advice at the initial police interview as a suspect should not have the consequence of disturbing the common-sense reality of how criminal procedure is carried out progressively from one stage to another in most of our countries (from being approached as a possible witness, to being a suspect, to being charged and ultimately tried). It is not necessary, in the fourth applicant’s case in particular, to run into one the two separate notions of (a) being questioned as a suspect and (b) being “charged” in order to ensure the fourth applicant the benefit of the guarantee under Article 6 that his trial should not have its fairness undermined by matters covered by the Salduz rule.

Then later, in the ninth paragraph [emphasis added]:

In the present case, immediately after his witness statement had been signed early in the morning of 28 July 2005, the fourth applicant was arrested and cautioned (see paragraph 147 of the judgment). After receiving legal advice, he was interviewed as a suspect on three other occasions, on 30 July and 1 and 2 August 2005, before being charged under domestic law on 3 August 2005 (see paragraphs 148-152 of the judgment). On my understanding of the Convention principles, it is not necessary for the resolution of the fourth applicant’s case to determine the exact occasion on which he can be said to have been “charged with a criminal offence” within the autonomous meaning of Article 6 of the Convention, since he had clearly been “charged” (at the very least on 3 August 2005) by the time that the question of the use of his initial statement as prosecution evidence arose. As I see it, the protection afforded to defendants in criminal trials by the Salduz rule on the use of evidence obtained during the initial interrogation by the police as a suspect is not dependent on the denial of access to a lawyer having occurred after the laying of the “criminal charge”. In order for the Salduz rule to apply to criminal trials, there is no need to equate, as the judgment does, being treated as a “suspect” with being “charged with a criminal offence”.

In these paragraphs Mahoney appears to show a misunderstanding of the role of the “criminal charge” within Article 6 protection. In the sixth paragraph in particular, Mahoney appears to consider a person subject to an intial police interview in any capacity as a “criminal defendant” or a “suspect”, and places far too much emphasis on the domestic determinations of the criminal procedure rather than the autonomous meaning given by the Court (see italics in paragraph 6). The question is not whether a criminal charge has occured at some point in the proceedings (as the italicised sentence in paragraph 9 suggests), or whether the person is considered by the authorities to be a witness or a suspect, but instead that from the moment the suspicion “crystallises” and the (autonomously interpreted) criminal charge “attaches”, Article 6 protection must be ensured from then on.

Whatever merits there may be to Mahoney’s position, the distinction that Article 6 protection attaches only at the moment of charge is well-established in the Court’s case law (see, for example, Alexander Zaichenko v Russia, paragraphs 42-51; ). The Court has been careful to create this distinction for practical reasons. Allowing Article 6 to “stretch back” would immediately make any evidence gained prior to charge unusable at trial and likely cause huge problems with police administration, particularly in cases of, for example, spontaneous confession (see, for example, Bandaletov v Ukraine, where the applicant gave incriminating states as a witness at the scene of the crime, but was ensured legal assistance after his arrest – no violation). This is made all the more problematic due to the lack of clarity in Mahoney’s judgment – by consistently referring to “Article 6” throughout his opinion, it is unclear whether Mahoney’s “extension” concerns Article 6(1), the right to legal assistance under 6(3) (which is suggested by his citation of Salduz), or the “fairness of the proceedings as a whole”.


This post in no way exhaustively analyses all the points raised by the judgment. And this was, indeed, a difficult judgment, balancing ever-controversial issues of national security and individual rights.

The tensions present in the different interpretations of the Salduz test reflect standard tensions at the heart of human rights themselves—the need to balance the rights of the individual against the wider security of society, the need to show deference to the state in the face of the threat of terrorism while effectively ensuring rights are not eroded, the need to ensure effective protection alongside effective prosecution, etc. This tension can even be seen in the media’s reporting of the case: compare the Daily Mail’s celebration that three terrorist’s human rights claim had been rejected against the Guardian’s focus on the violation of the fourth applicant’s fair trial rights.

Yet the scorching criticism in Judges Sajó and Laffranque’s separate opinion should be kept in mind. As their separate opinion begins:

We understand the primary importance of protecting societies from terrorism. The authorities responsible for this difficult task face serious challenges. However, it is crucial that in striking the right balance between security needs and the exercise of fundamental rights and freedoms all democratic societies, and all Contracting States of the Convention, show due regard for the requirements of the rule of law and avoid straying from human-rights and rule-of-law principles.

Cases concerning terrorism or the “worst of society” are the areas where human rights are hardest to justify, but most vital to enforce. How well the Court struck the balance in Ibrahim is up for debate. But in the words of AWB Simpson:

It is in conditions of conflict and emergency that states are most likely to trample on individual rights in the name of the public good, yet it is in relation to just such situations that states are most unwilling to accept any restraint on their power. The risk is that, in consequence, human rights come to be treated like lifts or elevators, which, one is told, should not be used in fires, just when they are what seem to be urgently needed.

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