THE tension between the competing values of security and human rights in the fight against terrorism was the subject of the ECtHR (Fourth Section) decision of Ibrahim v Others v the United Kingdom (Application nos. 50541/08, 50571/08, 50573/08, and 40351/09), 16 December 2014. Two weeks after the London bombings of 7 July 2005, bombs were detonated on the London transport system but failed to explode. After the first three applicants were arrested on suspicion of detonating the bombs, they underwent “safety interviews” which are conducted urgently for the purpose of protecting life and preventing serious damage to property, without any solicitor present and before the suspect can seek legal advice, as authorized under the Terrorism Act 2000. At the start of the “safety interviews”, instead of the “old-style” caution which reminds the suspect of his right to silence and informs him that anything said may be given in evidence, the police wrongly issued the “new-style” caution, which reminds the suspect of his right to silence and informs him that the court can draw adverse inferences at trial from his silence. This was contrary to s. 34(2A) of the Criminal Justice and Public Order Act 1994, which states that adverse inferences cannot be drawn at trial if the defendant did not have the opportunity to consult with a solicitor prior to questioning. During the “safety interviews”, the first three applicants denied any involvement in or knowledge of the detonation, but, at trial, they acknowledged their involvement in the detonation yet claimed that the bombs had been a hoax and were never intended to explode. The statements taken at their “safety interviews” were admitted at trial. The fourth applicant, Abdurahman, was initially interviewed by the police as a witness. When he started to incriminate himself by discussing the assistance he provided to one of the suspects, the police did not, at that stage, arrest him and inform him of his rights to silence and to legal inform as required under the Police and Criminal Evidence Act 1984 Code of Practice C; they only did so after having further questioned him as a witness and having taken a written statement from him. His written statement was admitted at trial.

After the Court of Appeal dismissed the first three applicants' appeals against their convictions in R. v Ibrahim (Muktar) [2008] EWCA Crim 880; [2009] 1 W.L.R. 578, and Abdurahman's appeal against his conviction in R. v Sherif [2008] EWCA Crim 2653; (2009) Cr. App. R. (S) 33, the four applicants argued before the Strasbourg Court that their rights to a fair trial and to legal assistance under Articles 6(1) and 6(3)(c) ECHR had been violated by their lack of access to lawyers during their initial police questioning, and by the admission at trial of the statements they had made during those police interviews which rendered their convictions unfair. By a 6:1 majority, the Court dismissed the claims. Adopting the Grand Chamber's analytical framework in its decision of Salduz v Turkey (Application no. 36391/02) (2008) 49 E.H.R.R. 421, the Court considered two separate but linked issues: (1) whether there were “compelling reasons” in the particular circumstances of the case to delay access to legal assistance and, if so, (2) whether the applicants’ Article 6 rights were unduly prejudiced by the subsequent admission of the statements they had made without legal advice as evidence in criminal proceedings.

Regarding the first issue, Salduz left open the question of whether terrorism charges may constitute a “compelling reason” to delay access to lawyers, and Ibrahim answered this question in the affirmative. According to the Court, there was an “exceptionally serious and imminent threat to public safety” at the time of the applicants' initial interviews (at [203]), specifically the possibility of loss of life on a large scale and the risk of further attacks (particularly in light of the London bombings two weeks earlier) (at [200]). Concerning Abdurahman, the police's continued questioning without arresting him and informing him of his right to a lawyer was indeed “troubling” (Sherif, at [38]) but not unreasonable, because it was based on the legitimate fear that Abdurahman would stop disclosing information of utmost relevance to public safety (at [202]). As for the first three applicants, delaying their access to lawyers was justified because it was for the sake of “ensuring that the integrity of the investigation was not compromised by leaks” (at [200]) where “access to legal advice would lead to the alerting of other suspects” (at [201]). It is submitted that this reason is difficult to accept in the English context. Not only is the Court espousing the view that lawyers may constitute a threat to justice (as noted by Judge Kalaydjieva in the sole dissenting opinion); its accepting without question the police's explanation that such “leaks” by the applicants’ lawyers would “make it more difficult to prevent an act of terrorism” (at [21], [33], [42]) is tantamount to saying that lawyers may constitute a threat to national security. Lawyers in the UK are bound by codes of professional ethics, specifically the Solicitors Regulation Authority Code of Conduct 2011 and Criminal Procedure Rules 2013. This factor was unfortunately not considered by the Court, unlike in S v Switzerland (Application nos. 12629/87 and 13965/88) (1992) 14 E.H.R.R. 670, which involved an alleged arsonist using terrorist-like methods to commit systematic offences against public order, who alleged a violation of his right to freely communicate with his lawyer under Article 6 ECHR; in that case, the Court held that there was no “risk of collusion” between the applicant's lawyer and his co-accused which justified restricting his Article 6 right, because the lawyer's professional ethics had not been called into question (at [49]).

Regarding the second issue, in reaching its conclusion that the subsequent admission of the applicants’ statements made without their lawyers present did not unduly prejudice their Article 6 rights, the Court examined several factors. There were procedural safeguards at trial which provided the applicants with the possibility to challenge the statements’ admissibility and weight (at [209], [210], [222]) and, in Abdurahman's case, he did not retract his statements even after having consulted with a lawyer but continued relying on his statement up until his request for its exclusion at trial (at [219]–[221]). Further, there was a significant body of incriminating evidence, independent of the statements, which was capable of undermining the applicants’ defence (at [211] and [223]). The Court also thought it important that Abdurahman was not forced to incriminate himself (at [218]), and how the first three applicants “did not allege any coercion, compulsion or other improper conduct which had pressured them into denying any involvement” (at [207]). It is submitted that the Court's view of coercion is too narrow in regard to the first three applicants’ case. The improper issuance of the “new-style” caution (with the warning that the court can draw adverse inferences at trial from their silence) without their lawyers present might have constituted a degree of indirect coercion to answer questions in defiance of the applicants’ will, as the trial judge noted (Ibrahim (Muktar), at [56e]). The physical presence of the lawyer, who may advise the suspect whether or not to volunteer answers to questions, “must be considered a particularly important safeguard for dispelling any compulsion to speak which may be inherent in the terms of the caution” (Condron v United Kingdom (Application no. 35718/97) (2001) 31 E.H.R.R. 1, [60]). In effect, the first three applicants were trapped “in a situation where both their silence and their lies may be lawfully interpreted to their detriment, thus leaving space only for confessions”, as dissenting Judge Kalaydjieva noted in Ibrahim.

Ibrahim represents a clear departure from the Court's pre-9/11 absolutist position that, even with the terrorist threat present, security and public order concerns cannot justify a violation of the privilege against self-incrimination under Article 6(1) (Heaney and McGuinness v Ireland (Application no. 34720/97) (2001) 33 E.H.R.R. 12, at [57]–[58]). It is a disappointing judgment and hopefully the Grand Chamber, to which Ibrahim was successfully referred on 1 June 2015, will decide this case differently. The right to legal advice is not only central to the privilege against self-incrimination. Without a lawyer, a detainee who is unaware of his rights is vulnerable to other human rights violations such as torture, arbitrary detention, and enforced disappearance. In allowing for the admission of the applicants’ statements made without lawyers present (contrary to the Grand Chamber's position that 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” (Salduz, at [55])), the Strasbourg Court in Ibrahim has taken a worrying position in regard to the interrogation of terrorist suspects. Counter-terrorism efforts should never compromise important procedural safeguards in the justice system, particularly in Europe today where the Paris and Copenhagen shootings in early 2015 and the return of radical jihadis from Syria have raised widespread fears of terrorist attacks.