EHRM, 13-09-2016, nr. 50541/08, nr. 50571/08, nr. 50573/08, nr. 40351/09

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 ‘new-style’ 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:

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:

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 old-style 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:

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 new-style 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:

Thereafter Mr Mohammed exercised his right to silence.

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:

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:

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:

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 1996-I, Condron v. the United Kingdom, no. 35718/97, § 60, ECHR 2000-V, Magee v. the United Kingdom, no. 28135/95, ECHR 2000-VI, and Averill v. the United Kingdom, no. 36408/97, ECHR 2000-VI. He continued:

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:

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:

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:

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:

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:

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:

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:

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:

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:

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

In respect of those lies, the judge observed:

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

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

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:

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

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 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:

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:

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:

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.

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:

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:

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:

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

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 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.

Article 18 of the Statute of the International Criminal Tribunal for the Former Yugoslavia (‘ICTY’) and Article 17 of the Statute of the International Criminal Tribunal for Rwanda (‘ICTR’) provide for legal assistance for suspects if questioned by the prosecutor of the Tribunal during the pre-trial phase. Article 21 of the ICTY Statute and Article 20 of the ICTR Statute reproduce the content of Article 14 ICCPR (see paragraph 216 above). Rule 42 of the ICTY Rules of Procedure and Evidence provides:

Rule 42 of the ICTR Rules of Procedure and Evidence is in substantially the same terms.

Rule 89(D) of the ICTY's Rules, and Rules 89(C) together with 70(F) of the ICTR's Rules, provide that a chamber may exclude evidence if its probative value is substantially outweighed by the need to ensure a fair trial. Rule 95 of the Rules of both the ICTY and the ICTR provides that no evidence shall be admissible if obtained by methods which cast substantial doubt on its reliability or if its admission is antithetical to, and would seriously damage, the integrity of the proceedings.

In Prosecutor v. Karadžić (Case No. IT-95–5/18-T, Decision on the Accused's Motion to Exclude Intercepted Conversations, 30 September 2010), the defendant applied to exclude evidence of intercepted conversations obtained in violation of Bosnian law. The trial chamber of the ICTY explained:

The chamber explained that in light of its mandate to prosecute persons allegedly responsible for serious violations of international humanitarian law, it would be inappropriate to exclude relevant and probative evidence because of procedural considerations, as long as the fairness of the trial was guaranteed. It concluded that the admission of evidence obtained by Bosnian authorities in violation of Bosnian law would not damage the integrity of its proceedings and found the evidence to be admissible.

223. Article 55 of the Rome Statute of the International Criminal Court (‘ICC’), which entered into force on 1 July 2002, sets out the rights of persons during an investigation under the Statute. Article 55 § 1 provides, inter alia, that a person shall not be compelled to incriminate himself or to confess guilt and shall not be subjected to any form of coercion, duress or threat, to torture or to any other form of cruel, inhuman or degrading treatment or punishment.

On the question of procedural rights prior to questioning, Article 55 § 2 provides, in so far as relevant:

Article 67 sets out the procedural rights of the accused and reproduces, inter alia, the content of Article 14 § 3 (d) and (g) ICCPR (see paragraph 216 above).

Article 69 § 7 of the Rome Statute provides that evidence obtained by means of a violation of the Statute or internationally-recognised human rights shall not be admissible if:

In Prosecutor v. Lubanga (Case No. ICC-01/04–01/06, Decision on the Confirmation of Charges, Pre-Trial Chamber I, 29 January 2007), a pre-trial chamber of the ICC considered the question of admissibility of illegally-obtained evidence. It accepted that the challenged evidence had been obtained in violation of the internationally-recognised human right to privacy. However, it said that given the terms of Article 69 § 7, it was clear that the evidence was not to be automatically excluded. Having concluded that the reliability of the evidence was not affected by the illegality, the court turned to consider the impact on the integrity of the proceedings. It explained that it had to ensure an appropriate balance between the rights of the accused and the need to respond to victims' and the international community's expectations. It continued:

The first three applicants argued that, properly understood, Salduz, cited above, imposed a bright-line rule prohibiting the use at trial of statements obtained during police interrogation in the absence of lawyers. In their view, this bright-line rule had been repeatedly reaffirmed by the Court, including in terrorism cases (citing, inter alia, Płonka v. Poland, no. 20310/02, 31 March 2009; Pishchalnikov v. Russia, no. 7025/04, 24 September 2009; and Dayanan v. Turkey, no. 7377/03, 13 October 2009). They further relied for support on the terms of Directive 2013/48/EU, Article 14(3)(d) ICCPR and the US Supreme Court's ruling in Miranda v. Arizona (see paragraphs 206–212, 216 and 229 above).

They argued that there were no compelling reasons to restrict their right to a lawyer. While the allegations were, admittedly, of the most serious order imaginable, this could not alone justify a restriction. The police could have contacted lawyers as soon as the applicants had requested legal representation. Had they done so, there was every prospect that the applicants would have been represented by the time the police were ready to conduct the safety interviews. In particular, the applicants considered that any concern as to possible leaks was wholly misplaced in light of the obligation of client confidentiality. The absence of compelling reasons was sufficient in and of itself to result in a violation of Article 6 §§ 1 and 3 (c).

In any event, they submitted that the restriction on legal advice had resulted in undue prejudice in their cases. The trial judge had described the evidence of the safety interviews as not marginal or unimportant but evidence which could provide the jury with considerable insight. The Chamber's reliance on the strength of other evidence in the case, in particular, was wrong since it was not founded on precedent, evidence could grow and contract over time and it gave too much scope to the prosecution to argue in favour of the admission of evidence obtained in breach of procedural rights.

The fourth applicant argued that the deliberate failure to caution him had resulted in his being denied the fundamental right against self-incrimination. It was highly material that the prosecution case had been substantially based on his witness statement. The evidence of Mr Sherif and Mr Osman implicating him was unlikely to have been persuasive, given that Mr Sherif was also convicted at trial and Mr Osman had given evidence as a convicted bomber. The remainder of the prosecution evidence was insufficient to support a conviction.

The fourth applicant accepted that the right to legal advice could be temporarily restricted for compelling reasons on national security grounds, but emphasised that no derogation from the right to silence was permitted. He further argued that there were no compelling reasons to restrict his right of access to a lawyer. The fact that formal arrest might have resulted in his ceasing to disclose information of the utmost relevance to public safety was not a reasonable justification. He also contended that the interview had gone far beyond obtaining information about the bombers. In his submission, the absence of compelling reasons was sufficient in and of itself to result in a violation of Article 6 §§ 1 and 3 (c).

Further, even if there were compelling reasons to restrict his rights, such restriction should have been temporary and should have led to the holding of a safety interview, as in the first three applicants' cases. His witness interview had not been restricted to the need to obtain information on any further planned attacks and the identities of the perpetrators, but had dealt also with his state of mind thus proving the mental element of the offences. He had been deliberately induced into making the statement on the false premise that he was a witness. He referred to the privilege against self-incrimination and the need for the prosecution to prove its case without resort to evidence obtained by coercion or oppression. Unlike the statements of the first three applicants, his statement had also been self-incriminatory. It had gone to the very heart of the prosecution case against him, and it was artificial to place any weight on corroborative evidence. The fact that he did not try to retract the statement was not decisive. He accepted that great weight had to be attached to the nature of the offences in his case, but argued that this had to be balanced against the conduct of the police.

Having regard to the entirety of the proceedings, the fourth applicant argued that there had been a violation of Article 6 §§ 1 and 3 (c) since his rights to be cautioned, to a lawyer and not to self-incriminate had been ignored and the admission of the statement had unduly and irretrievably prejudiced his defence.

The protections afforded by Article 6 §§ 1 and 3 apply to a person subject to a ‘criminal charge’, within the autonomous Convention meaning of that 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 (see Deweer v. Belgium, 27 February 1980, §§ 42–46, Series A no. 35; Eckle v. Germany, 15 July 1982, § 73, Series A no. 51; and McFarlane v. Ireland [GC], no. 31333/06, § 143, 10 September 2010).

The right to a fair trial under Article 6 § 1 is an unqualified right. However, what constitutes a fair trial cannot be the subject of a single unvarying rule but must depend on the circumstances of the particular case (see O'Halloran and Francis v. the United Kingdom [GC], nos. 15809/02 and 25624/02, § 53, ECHR 2007-III). The Court's primary concern under Article 6 § 1 is to evaluate the overall fairness of the criminal proceedings (see, among many other authorities, Taxquet v. Belgium [GC], no. 926/05, § 84, ECHR 2010; and Schatschaschwili v. Germany [GC], no. 9154/10, § 101, ECHR 2015).

Compliance with the requirements of a fair trial must be examined in each case having regard to the development of the proceedings as a whole and not on the basis of an isolated consideration of one particular aspect or one particular incident, although it cannot be excluded that a specific factor may be so decisive as to enable the fairness of the trial to be assessed at an earlier stage in the proceedings (see Can v. Austria, no. 9300/81, Commission's report of 12 July 1984, § 48, Series A no. 96). In evaluating the overall fairness of the proceedings, the Court will take into account, if appropriate, the minimum rights listed in Article 6 § 3, which exemplify the requirements of a fair trial in respect of typical procedural situations which arise in criminal cases. They can be viewed, therefore, as specific aspects of the concept of a fair trial in criminal proceedings in Article 6 § 1 (see, for example, Salduz, cited above, § 50; Gäfgen v. Germany [GC], no. 22978/05, § 169, ECHR 2010; Dvorski, cited above, § 76; and Schatschaschwili, cited above, § 100). However, those minimum rights are not aims in themselves: their intrinsic aim is always to contribute to ensuring the fairness of the criminal proceedings as a whole (see Can, cited above, § 48; Mayzit v. Russia, no. 63378/00, § 77, 20 January 2005; and Seleznev v. Russia, no. 15591/03, § 67, 26 June 2008).

The general requirements of fairness contained in Article 6 apply to all criminal proceedings, irrespective of the type of offence in issue. There can be no question of watering down fair trial rights for the sole reason that the individuals in question are suspected of involvement in terrorism. In these challenging times, the Court considers that it is of the utmost importance that the Contracting Parties demonstrate their commitment to human rights and the rule of law by ensuring respect for, inter alia, the minimum guarantees of Article 6 of the Convention. Nevertheless, when determining whether the proceedings as a whole have been fair the weight of the public interest in the investigation and punishment of the particular offence in issue may be taken into consideration (see Jalloh v. Germany [GC], no. 54810/00, § 97, ECHR 2006-IX). Moreover, Article 6 should not be applied in such a manner as to put disproportionate difficulties in the way of the police authorities in taking effective measures to counter terrorism or other serious crimes in discharge of their duty under Articles 2, 3 and 5 § 1 of the Convention to protect the right to life and the right to bodily security of members of the public (see, mutatis mutandis, Sher and Others v. the United Kingdom, no. 5201/11, § 149, ECHR 2015 (extracts)). However, public interest concerns cannot justify measures which extinguish the very essence of an applicant's defence rights (see Jalloh, cited above, § 97; Bykov v. Russia [GC], no. 4378/02, § 93, 10 March 2009; and Aleksandr Zaichenko v. Russia, no. 39660/02, § 39, 18 February 2010).

The primary purpose of Article 6 as far as criminal matters are concerned is to ensure a fair trial by a ‘tribunal’ competent to determine ‘any criminal charge’ (see Imbrioscia v. Switzerland, 24 November 1993, § 36, Series A no. 275; Brennan v. the United Kingdom, no. 39846/98, § 45, ECHR 2001-X; Shabelnik v. Ukraine, no. 16404/03, § 52, 19 February 2009; and Dvorski, cited above, § 76). However, as noted above, the guarantees of Article 6 are applicable from the moment that a ‘criminal charge’ exists within the meaning of this Court's case-law (see paragraph 249) and may therefore be relevant during pre-trial proceedings if and in so far as the fairness of the trial is likely to be seriously prejudiced by an initial failure to comply with them (see also Imbrioscia, cited above, § 36; and Dvorski, cited above, § 76). The investigation stage may be of particular importance for the preparation of the criminal proceedings: the evidence obtained during this stage often determines the framework in which the offence charged will be considered at the trial and national laws may attach consequences to the attitude of an accused at the initial stages of police interrogation which are decisive for the prospects of the defence in any subsequent criminal proceedings. An accused may therefore find himself in a particularly vulnerable position at that stage of the proceedings, the effect of which may be amplified by increasingly complex legislation on criminal procedure, notably with respect to the rules governing the gathering and use of evidence (see Salduz, cited above, §§ 52 and 54; see also Dvorski, cited above, § 77). The manner in which Article 6 §§ 1 and 3 are to be applied during the investigation stage depends on the special features of the proceedings involved and on the circumstances of the case (see Imbrioscia, cited above, § 38).

Complaints under Article 6 about the investigation stage tend to crystallise at the trial itself when an application is made by the prosecution to admit evidence obtained during the pre-trial proceedings and the defence opposes the application. As the Court has explained on numerous occasions, it is not the role of the Court to determine, as a matter of principle, whether particular types of evidence, including evidence obtained unlawfully in terms of domestic law, may be admissible. As explained above (see paragraph 250), the question which must be answered is whether the proceedings as a whole, including the way in which the evidence was obtained, were fair (see Jalloh, cited above, § 95; and Bykov, cited above, § 89). However, an exception to this approach applies in the case of confessions obtained as a result of torture or of other ill-treatment in breach of Article 3: the Court has explained that the admission of such statements as evidence to establish the relevant facts in criminal proceedings renders the proceedings as a whole unfair, irrespective of the probative value of the statements and irrespective of whether their use was decisive in securing the defendant's conviction (see, for example, Gäfgen, cited above, § 166).

The right not to incriminate oneself is primarily concerned with respecting the will of an accused person to remain silent and presupposes that the prosecution in a criminal case seek to prove their case without resort to evidence obtained through methods of coercion or oppression in defiance of the will of the accused (see Saunders v. the United Kingdom, 17 December 1996, §§ 68–69, Reports 1996-VI; Jalloh, cited above, §§ 100 and 102; and Bykov, cited above, § 92). The right to remain silent under police questioning and the privilege against self-incrimination are generally recognised international standards which lie at the heart of the notion of a fair procedure under Article 6. Their rationale lies, inter alia, in the protection of the accused against improper compulsion by the authorities, thereby contributing to the avoidance of miscarriages of justice and to the fulfilment of the aims of Article 6 (see John Murray, cited above, § 45; Jalloh, cited above, § 100; and Bykov, cited above, § 92).

It is important to recognise that the privilege against self-incrimination does not protect against the making of an incriminating statement per se but, as noted above, against the obtaining of evidence by coercion or oppression. It is the existence of compulsion that gives rise to concerns as to whether the privilege against self-incrimination has been respected. For this reason, the Court must first consider the nature and degree of compulsion used to obtain the evidence (see Heaney and McGuinness v. Ireland, no. 34720/97, §§ 54–55, ECHR 2000-XII; O'Halloran and Francis, cited above, § 55; and Bykov, cited above, § 92). The Court, through its case-law, has identified at least three kinds of situations which give rise to concerns as to improper compulsion in breach of Article 6. The first is where a suspect is obliged to testify under threat of sanctions and either testifies in consequence (see, for example, Saunders, cited above; and Brusco v. France, no. 1466/07, 14 October 2010) or is sanctioned for refusing to testify (see, for example, Heaney and McGuinness, cited above; and Weh v. Austria, no. 38544/97, 8 April 2004). The second is where physical or psychological pressure, often in the form of treatment which breaches Article 3 of the Convention, is applied to obtain real evidence or statements (see, for example, Jalloh, Magee and Gäfgen, all cited above). The third is where the authorities use subterfuge to elicit information that they were unable to obtain during questioning (see Allan v. the United Kingdom, no. 48539/99, ECHR 2002-IX).

Testimony obtained under compulsion which appears on its face to be of a non-incriminating nature, such as exculpatory remarks or mere information on questions of fact, may be deployed in criminal proceedings in support of the prosecution case, for example to contradict or cast doubt upon other statements of the accused or evidence given by him during the trial, or to otherwise undermine his credibility. The privilege against self-incrimination cannot therefore reasonably be confined to statements which are directly incriminating (see Saunders, cited above, § 69).

However, the right not to incriminate oneself is not absolute (see Heaney and McGuinness, cited above, § 47; Weh, cited above, § 46; and O'Halloran and Francis, cited above, § 53). The degree of compulsion applied will be incompatible with Article 6 where it destroys the very essence of the privilege against self-incrimination (see John Murray, cited above, § 49). But not all direct compulsion will destroy the very essence of the privilege against self-incrimination and thus lead to a violation of Article 6 (see O'Halloran and Francis, cited above, § 53). What is crucial in this context is the use to which evidence obtained under compulsion is put in the course of the criminal trial (see Saunders, cited above, § 71).

In Aleksandr Zaichenko, cited above, § 52, in the context of its examination of the applicant's complaint of a failure to respect his privilege against self-incrimination and right to silence, the Court explained that once there was a suspicion of theft against the applicant, it became incumbent on the police, in all the circumstances of the case, to inform him of these rights. In Schmid-Laffer v. Switzerland, no. 41269/08, §§ 29 and 39, 16 June 2015, the Court noted that when the applicant was first interviewed by the police there was nothing in the case-file to suggest that she should have been treated as a person accused of an offence and should have been informed of her right to remain silent. However, during her second interrogation, by which time she was subject to a ‘criminal charge’ for the purposes of Article 6, it had become incumbent on the police in the circumstances of the case to inform her of her right to silence and privilege against self-incrimination.

A right to information about defence rights is provided for under other international instruments. The UN Human Rights Committee has made it clear that the right to a fair trial under Article 14 ICCPR implies the right to be notified of procedural rights, including the right to legal assistance and the right to remain silent (see paragraphs 216–217 above). The Rules of Procedure and Evidence of the ICTY and the ICTR and Article 55 of the ICC Statute expressly provide that suspects are to be notified of their right to a lawyer and right to remain silent (see paragraphs 218–219 and 224 above). The importance of notifying suspects of their rights has also been recognised by the adoption of Directive 2012/13/EU on the right to information in criminal proceedings (see paragraphs 203–205 above). The Directive's preamble explains that the right to information about procedural rights, which is inferred from this Court's case-law, should be explicitly established. Article 3 of the Directive requires that suspects be notified of five procedural rights, including the right to a lawyer and the right to remain silent. Recital 21 of Directive 2013/48/EU on access to a lawyer also explains that where, in the course of police questioning, a witness becomes a suspect, questioning may only continue once he has been made aware that he is a suspect and is able to fully exercise his right to legal advice.

The Convention is intended to guarantee rights that are practical and effective and not theoretical and illusory (see, among many other authorities, Salduz, cited above, § 51; and Dvorski, cited above, § 82). In order to ensure that the protections afforded by the right to a lawyer and the right to silence and privilege against self-incrimination are practical and effective, it is crucial that suspects be aware of them. This is implicit from the Court's application of the ‘knowing and intelligent waiver’ standard to any purported waiver of the right to counsel (see Dvorski, cited above, § 101). The Court therefore finds that it is inherent in the privilege against self-incrimination, the right to silence and the right to legal assistance that a person ‘charged with a criminal offence’ for the purposes of Article 6 has the right to be notified of these rights.

In the light of the nature of the privilege against self-incrimination and the right to silence, the Court considers that in principle there can be no justification for a failure to notify a suspect of these rights. Where a suspect has not, however, been so notified, the Court must examine whether, notwithstanding this failure, the proceedings as a whole were fair (see, for example, the approach taken in Schmid-Laffer, cited above, §§ 36–40). Immediate access to a lawyer able to provide information about procedural rights is likely to prevent unfairness arising from the absence of any official notification of these rights. However, where access to a lawyer is delayed, the need for the investigative authorities to notify the suspect of his right to a lawyer and his right to silence and privilege against self-incrimination takes on a particular importance (see Brusco, cited above, § 54). In such cases, a failure to notify will make it even more difficult for the Government to rebut the presumption of unfairness that arises where there are no compelling reasons for delaying access to legal advice or to show, even where there are compelling reasons for the delay, that the proceedings as a whole were fair.

Having regard to the fact that a criminal trial generally involves a complex interplay of different aspects of criminal procedure, it is often artificial to try and categorise a case as one which should be viewed from the perspective of one particular Article 6 right or another. As noted above (see paragraph 254), complaints concerning a failure to respect the express or implied Article 6 rights at the investigation stage in criminal proceedings will often crystallise at trial, when the evidence obtained is admitted. When examining the proceedings as a whole in order to assess the impact of procedural failings at the pre-trial stage on the overall fairness of the criminal proceedings, the following non-exhaustive list of factors, drawn from the Court's case-law, should, where appropriate, be taken into account:

The first three applicants complain that they were interviewed without having had access to a lawyer and that the statements they made were admitted in evidence against them. There is no doubt that at the time of their safety interviews they were subject to a ‘criminal charge’ within the meaning of Article 6 of the Convention. As noted above, the Court is required to decide whether there were compelling reasons for the temporary restrictions on the applicants' access to legal advice before assessing whether the admission of the comments made during the safety interviews rendered the criminal proceedings as a whole unfair.

The fourth applicant complained that the self-incriminating statement he made as a witness, and therefore without having been notified of his privilege against self-incrimination or having been provided with access to a lawyer, was admitted at his trial.

The Court must first determine when the guarantees of Article 6 became applicable in the fourth applicant's case. Unlike the first three applicants, who were immediately arrested, he was approached by the police as a potential witness and invited to accompany them to the police station to assist with their investigation (see paragraph 139 above). The Court accepts that, at that stage, the police did not suspect him of involvement in a criminal offence and that he cannot claim to have been substantially affected by actions taken as a result of a suspicion against him (see paragraph 249 above). However, during the witness interview, the fourth applicant began to incriminate himself and the police officers conducting the interview suspended it to seek instructions from their superior. The Court is satisfied that at that point a suspicion that the fourth applicant had committed a criminal offence had crystallised, such that from that moment onwards his situation was substantially affected by the actions of the police and was accordingly subject to a ‘criminal charge’ within the autonomous meaning of Article 6 of the Convention.

The Court must therefore decide whether there were compelling reasons for the restriction of the fourth applicant's access to legal advice before assessing whether the admission of his witness statement rendered the criminal proceedings as a whole unfair.

We will examine these interrelated factors together.

Although, from the moment he was arrested at the close of his initial interview, the fourth applicant has had the opportunity to challenge the authenticity of what he said in his statement, including at his trial and before this Court, he has never done so. At no stage in the domestic proceedings did he seek to advance any other version of events than the one given to the police during his initial interview (see notably paragraphs 149–152 and 168 of the judgment). We take this to be a very important aspect of the case.

The fourth applicant waited until his trial before objecting to the use of his initial statement. Up until then, after having received legal advice, he had been positively relying on the statement as a means of showing his lack of criminal intent and criminal action (see the observations on this point in the chamber judgment, paragraphs 219–221). Following the initial interview, it was open to the fourth applicant to retract his statement made on that occasion on the grounds he subsequently raised at trial and before this Court. At no point has he explained why he felt unable to challenge it at an earlier stage.

The national courts at two levels of jurisdiction thoroughly examined his arguments regarding the inadmissibility of the statement, but rejected them. The trial judge gave careful directions to the jury regarding the conditions in which the initial statement had been obtained, drawing the jurors’ attention to the fourth applicant's arguments as to the flawed nature of that statement and telling them to ignore it if they felt that it had not been freely given or was unreliable. We confess to having some difficulty in understanding the criticism contained in paragraph 310 of the judgment to the effect that ‘the trial judge's directions left the jury with excessive discretion as to the manner in which the statement, and its probative value, were to be taken into account’. This criticism seems to be at odds with the role of the jury in common-law criminal-justice systems and to misconceive the sense of the directions themselves. On the first point, the Court's Article 6 case-law requires an assessment of whether sufficient safeguards were in place to avoid any risk of arbitrariness and to enable the accused to understand the reasons for his conviction. Such procedural safeguards may include, for example, directions or guidance provided by the presiding judge to the jurors on the legal issues arising or the evidence adduced, and precise, unequivocal questions put to the jury by the judge, forming a framework on which the verdict is based or sufficiently offsetting the fact that no reasons are given for the jury's answers.9. We find it difficult to contend that these requirements were not met in the instant case. More specifically, this Court has recognised ‘the jury's role [in English trial law] as the ultimate arbiter of fact’.10. It is not the Court's task to standardise the legal systems in Europe by imposing any given model of jury trial or given degree of involvement of citizens in the administration of justice.11. On the second point, the directions to the jury were, in ordinary language, telling the jurors that they should treat the fourth applicant's initial statement with caution and disregard it if they felt that, though true, it was unreliable or had been obtained unfairly (by ‘trickery’, as the fourth applicant had argued — paragraph 169 of the judgment). It is difficult to see the shortcoming in such directions.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Thereafter Mr Mohammed exercised his right to silence.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

In respect of those lies, the judge observed:

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

For the later interviews that took place after the applicants had seen their legal representatives and had received the new-style caution, the trial judge directed the jury that the applicants had failed to give an account of three matters that they relied on at trial, even though they had been asked questions about them in interview:

He explained that the failure to mention these matters during the interviews which took place after they had received legal advice could be held against them.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Government argued that the first three applicants had had a fair trial in accordance with Article 6. First, there had been compelling reasons in their cases — within the meaning of that term in Salduz v. Turkey [GC], no. 36391/02, ECHR 2008 — to justify the restrictions on their right of access to a solicitor. Second, their Article 6 rights had not been irretrievably prejudiced as a result of these restrictions.

Developing their submission on the existence of compelling reasons, the Government drew attention to the following:

The Government further submitted that the scope of the restrictions had been clearly circumscribed by the provisions of Schedule 8 to the Terrorism Act 2000. The restrictions contained in that Act were not systematic and could only be imposed on the basis of an assessment of the particular circumstances of the individual case. All decisions had to be based on reasonable grounds. In the applicants' cases, the restriction had pursued the legitimate aims of the protection of life and property and the prevention of crime. The Convention system recognised the particular need in the terrorism context to strike a proper balance between individual rights and the exigencies involved in dealing with terrorism. The purpose of questioning without access to a solicitor was not to obtain evidence against a suspect but urgently to obtain information that would protect life and property and prevent terrorist activity. Once the basis for the restriction ceased to subsist, the restriction was no longer possible. No inference from silence could be drawn in subsequent criminal proceedings.

The Government submitted that the applicants' rights were not unduly prejudiced. It was highly material that they had complained about the admission of lies told in their police interviews, rather than adverse inferences from silence or admission of self-incriminating statements. The Court's statement in Saunders v. the United Kingdom, 17 December 1996, § 71, Reports 1996-VI, that the right not to incriminate oneself could not be confined to statements which were directly incriminating but also extended to exculpatory remarks, had been made in the context of statements obtained under compulsion. This was not the case here and, in any event, the applicants' statements were not merely exculpatory but also false. In the Government's submission, the right against self-incrimination operated to protect those who incriminated themselves or remained silent. It did not protect those who had deliberately and freely attempted to mislead the authorities (citing, mutatis mutandis, Allen v. the United Kingdom (dec.), no. 76574/01, ECHR 2002-VIII).

The Government further argued that the applicants' false statements were only one part of the prosecution case against them and were not the primary evidence. There was the evidence of their extremist views and support for suicide bombings, their construction and deployment of the bombs, the suicide note, and their going into hiding after the failed attacks. Their defence — that it was all a hoax — had been described as ‘ludicrous’ by the Court of Appeal (see paragraph 89 above). This was not a case where, in the language of Salduz, incriminating statements made during police interrogation without access to a lawyer were used for a conviction.

It was further important that the applicants' rights had been properly protected by the adversarial nature of the domestic criminal proceedings. At trial, they had been given a proper opportunity to challenge the admission of their statements. Their present complaints were, in effect, an invitation to the Court to go behind the trial judge's ruling (confirmed by the Court of Appeal) allowing the statements to be admitted.

Finally, the administration of the incorrect caution to the applicants did not cause any unfairness. They had been warned that they did not have to say anything but that anything they said could be used in evidence. The caution used did not cause the applicants to incriminate themselves: they had told exculpatory lies. As the trial judge had found at trial, the errors in administering the cautions were straightforward and understandable oversights. He had concluded that the new-style cautions had not pressured the applicants into providing any element of their various defences. That reasoning had been upheld by the Court of Appeal.

The first three applicants submitted that it might have been justified to conduct the safety interviews before their lawyers arrived. However, the police should at least have tried to obtain the lawyers' attendance before proceeding with the safety interviews. They had not. There was, therefore, no compelling reason for the lack of legal representation. In this respect, the applicants underlined that they did not seek to disturb the trial judge's findings as to the hectic pace of the police enquiry, the facilities at the police station or the lack of malice in administering the wrong cautions. They did, however, point out that the police could have contacted lawyers as soon as they had requested legal assistance. Had the police done so, there was every prospect that the applicants would have been represented by solicitors by the time the police were ready to conduct the safety interviews. The applicants therefore argued that the decision to hold them incommunicado was a convenience to police officers acting under great pressure but not a necessity.

In any case, whether or not the denial of legal representation was justified by compelling reasons, the applicants contended that the subsequent admission at their trial of the answers they had given was in violation of Article 6. The right to legal advice was not merely a protection against coercion and ill-treatment: there was a clear link between the right to legal advice and the right against self-incrimination running through the case-law of the Court both before and after Salduz.

170. There was no relevance in the distinction drawn by the Government between telling lies and making incriminating admissions or staying silent (see the Government's submissions at paragraph 164 above). Any such distinction had no basis in domestic law or the Court's case-law. Saunders Saunders, cited above, § 71, made it clear that the right not to incriminate oneself could not reasonably be confined to admissions. Lies were often deployed as evidence of guilt because a proven lie was a self-incriminating statement. Furthermore, when choosing not to exercise their right to silence, the applicants had not had access to a lawyer and the Court could not know whether, if legally advised, they would have acted differently. Finally, the Government's distinction would have uncertain and unpredictable consequences: in an interview an arrested person could remain silent, tell lies, admit the offence or give answers that might later be argued to be lies or admissions. Unless there was a single rule for questioning, the police, trial courts and appellate courts could not know if the interview was compatible with the Convention.

The applicants maintained that the admission of the statements unduly and irretrievably prejudiced their defence. Although the Court of Appeal had cautioned against attaching disproportionate importance to the statements, the trial judge had described them as having ‘potentially high relevance’ and the Court of Appeal had also described the statements as ‘important evidence’ (paragraphs 62 and 92 above). The Court of Appeal had placed the issue of the safety of the convictions above the applicants' right to a fair trial. To the extent that the Government relied on the checks and balances in the domestic legal system, this argument had been considered and rejected over a decade ago in Magee, cited above, § 37.

Finally, the use of the incorrect caution was not determinative but did add to the seriousness of the violation. First, the answers that the applicants gave followed a caution which obliged them to put forward an account or face adverse consequences. Second, if solicitors had been present the error would have been noticed and corrected. Third, the Court should be wary of the trial judge's conclusion that it would have made no difference, since in John Murray, cited above, § 68, it had considered it to be highly speculative to seek to determine how a detained person might have behaved had he been afforded legal advice.

Mr Omar added in separate submissions that the Court of Appeal had not found that there was no breach of the applicable code of practice but had dismissed the appeals on the ground that any breach did not render the statements inadmissible (see paragraph 95 above). He argued that the denial of access to a lawyer could not be justified when the circumstances of the case did not fall within any of the exceptional and circumscribed circumstances for delaying access to a lawyer contained in Code C. The unlawful denial to him of his Article 6 rights was made worse because the denial of access to a lawyer was intentional. He did not dispute the justification for carrying out safety interviews per se, but that was different from the justification for carrying out safety interviews when an individual had been intentionally and unlawfully denied access to a lawyer.

The Government submitted that the failure to comply with the applicable code of practice obligation to caution a suspect and inform him of his entitlement to free legal assistance (see paragraph 134 above) did not necessarily violate Article 6, as that Article did not require that statements made in the absence of such procedural safeguards not be adduced in evidence.

The Government accepted that as, a matter of principle, statements made in the absence of a caution or legal advice should be treated with care, and that there should be a justification for the denial of safeguards. However, the entirety of the proceedings had to be considered. On a proper reading of the Court's case-law, particularly Aleksandr Zaichenko v. Russia, no. 39660/02, 18 February 2010, what was necessary was that, at trial, the accused should have an opportunity to challenge the use of the statement, its reliability should be assessed, the fairness of admitting it should be considered and the trial court should give reasons for its decisions.

In the fourth applicant's case there were compelling reasons for the actions of the police and, at trial, his rights had been respected. The justification for the police action was the need to obtain information on the three would-be suicide bombers who were still at large when he was questioned (Mr Ibrahim, Mr Mohammed and Mr Osman). The need to protect the public outweighed the need to comply with the code of practice. To have treated the fourth applicant as a suspect before he had confirmed the contents of his statement might have hindered the gathering of information critical to preventing a further terrorist attack. The actions of the police did not represent a systemic practice but were the consequence of particular necessity in the fourth applicant's case.

The Government also emphasised that there was no compulsion. The fourth applicant had attended the police station voluntarily. He had not been arrested and his freedom of action was not curtailed (in contrast to the applicants in both Aleksandr Zaichenko and Salduz).

It was also relevant that the pre-caution statement was not one made in isolation. After he had been cautioned and provided with legal assistance, the fourth applicant had decided not to remain silent and had instead confirmed that his witness statement was true (again in contrast to Aleksandr Zaichenko and Salduz, where the applicants had tried to retract their statements). Indeed, the fourth applicant had relied on his statement to show that he had given valuable assistance to the police. This was his position both at the later police interviews (where he had been cautioned and a lawyer was present) and at trial. Although this was not decisive in determining whether the trial was fair, in contrast to Amutgan v. Turkey, no. 5138/04, 3 February 2009 (where a violation was found in a case involving an illiterate defendant who had later confirmed the accuracy of a written statement made without the benefit of legal advice), here there was no detention or coercive treatment by the police and no systemic denial of legal assistance; there was justification for the denial of legal assistance; and the fourth applicant had not merely confirmed the accuracy of his statement but had relied on it to establish his defence.

The Government also pointed out that the fourth applicant had been given the opportunity to challenge the admission of the witness statement at trial and, again in contrast to Salduz and Aleksandr Zaichenko, the trial judge had properly addressed the question of admissibility. He had found the statement reliable and noted that it had been adopted under caution and after the benefit of legal advice. He had considered it important to his assessment of the reliability of the statement that the fourth applicant had adopted it after receiving legal advice and in the presence of his lawyer. Those reasons had been upheld by the Court of Appeal.

Finally, the statement was only one part of the prosecution case and it could not be said that the conviction was based on the statement. There was a vast amount of evidence that Mr Osman had stayed in the fourth applicant's flat and that the fourth applicant had run errands for Mr Osman in order to assist in Mr Osman's escape from the United Kingdom (see paragraph 121 above).

The fourth applicant submitted that it was not justifiable purposely to deny a person his rights on the basis of domestic security and then use the evidence obtained from that denial in order to convict him.

On the facts of his case, he submitted that, although he had not been legally arrested or detained when he gave his witness statement, he was effectively in police custody for a period of approximately eleven hours. He had not been cautioned, had not had access to legal advice and had not had proper rest for at least eight hours; and his interview had not been tape-recorded. He was continually in the presence of police officers, either in a room at the police station or on the drive to Mr Osman's address. The police officers had informed him that he would be free to leave once he had signed the witness statement. The corollary of this was that he had not been free to leave until he had done so. It also meant the incriminating answers given in his interviews had been extracted through a trick.

He contended that there were no compelling reasons for denying him legal advice or for denying him the right against self-incrimination. He advanced four arguments.

First, treating him as a witness rather than a suspect was not the only way for the police to obtain information as to the whereabouts of the three suspected bombers. They had already arrested Mr Omar in Birmingham (see paragraph 14 above). If they had arrested the fourth applicant, they would have had the power to seize his possessions including his mobile telephone. That phone would have been a valuable source of information. It was of note that Mr Osman was later traced to Rome as a result of telephone calls made by him in Rome to the fourth applicant's mobile phone. In addition, if they had arrested the fourth applicant, the police would have had the power to search his home, and carry out forensic examinations there, which in due course they did.

Second, if the police had made a tactical decision to breach the fourth applicant's rights in order to obtain information, then they could have treated the fourth applicant as an informant. It was a common practice for the police not to prosecute such people in exchange for the information they gave.

Third, it was extremely unlikely that the suicide bombers would have had a back-up plan if their original plan did not work. The threat to the public that was alleged to stem from the possibility of a back-up plan was not an excuse for the breach of the fourth applicant's rights. This was, in any event, inconsistent with the prosecution's case (both at the fourth applicant's trial and at the trial of the bombers themselves) that there was no such back-up plan.

Fourth, if the overwhelming priority of the police was to obtain information as to the three suspected bombers, then their interrogation of the fourth applicant should have focused solely on this issue. However, the interrogation went far beyond this and delved into the state of mind of the fourth applicant, his motivation and the details of any assistance he might have given Mr Osman.

The fourth applicant also submitted that the initial breach of the right not to incriminate himself irretrievably prejudiced his Article 6 rights. The post-caution interview was contaminated by the pre-caution interviews and, once arrested, the fourth applicant had immediately retracted parts of the witness statement. In any case, once the prosecution sought to use the statement at trial, it made no difference whether the fourth applicant relied on the police statement or not: the prejudice had already occurred. At trial, he had sought unsuccessfully to challenge the admission of the statement. When that application was refused, a further application to exclude certain parts of the statement on the basis of inaccuracy was made. That application was also refused. At this point, the fourth applicant was presented with a fait accompli; his only choice was to highlight certain aspects of the statement that could be regarded as favourable to his case, even though that statement remained evidence for the prosecution, not the defence.

The fourth applicant also disputed the Government's submission that there was a vast amount of evidence against him. He considered that the prosecution case was based substantially on his statement and without it there was insufficient evidence to support a conviction. When proper consideration was given to the entirety of the proceedings there was insufficient justification for the use of the statement at trial, rendering the trial unfair.

Finally, the distinctions drawn by the Government between his case and Amutgan, cited above, were flawed. First, he had effectively been detained and denied eight hours' sleep. Second, there was insufficient justification for the deliberate breach of his rights. Whether there was systemic basis for that breach could not be decisive of whether his right to a fair trial had been violated. There was no basis for stating that, in Aleksandr Zaichenko or Salduz, the main reasons for the findings of violations were the domestic courts' failures properly to address the question of admissibility or to give reasons for relying on the statements in question.

The Court's primary concern under Article 6 § 1 is to evaluate the overall fairness of the criminal proceedings (see Imbrioscia v. Switzerland, 24 November 1993, § 38, Series A no. 275; Taxquet v. Belgium [GC], no. 926/05, § 84, 16 November 2010; and Bandaletov v. Ukraine, no. 23180/06, § 54, 31 October 2013). The guarantees in paragraph 3 of Article 6 are specific aspects of the right to a fair hearing set forth in Article 6 § 1 which must be taken into account in that evaluation (see Imbrioscia, cited above, § 37; Gäfgen v. Germany [GC], no. 22978/05, § 169, ECHR 2010; Sakhnovskiy v. Russia [GC], no. 21272/03, § 94, 2 November 2010; and Bandaletov, cited above, § 54). Their intrinsic aim is to contribute to ensuring the fairness of the criminal proceedings as a whole (see Mayzit v. Russia, no. 63378/00, § 77, 20 January 2005; and Seleznev v. Russia, no. 15591/03, § 67, 26 June 2008). But they are not an end in themselves: compliance with the requirements of a fair trial must be examined in each case having regard to the development of the proceedings as a whole, and not on the basis of the isolated consideration of one particular aspect or incident (see Pishchalnikov v. Russia, no. 7025/04, § 64, 24 September 2009. See also Mayzit, cited above, § 77; and Seleznev, cited above, § 67).

The right to legal assistance contributes in particular to the protection of the accused against abusive coercion on the part of the authorities. It is a fundamental safeguard against ill-treatment (Salduz, cited above, §§ 53–54). Where an accused denied prompt legal assistance alleges improper conduct, notably coercion or ill-treatment, by the police during interrogation, the most careful scrutiny by the domestic tribunals and by this Court is required.

The Court explained in John Murray, cited above, § 63, that where access to a lawyer has been deliberately restricted at the initial stages of police interrogation, the question is whether the restriction, in the light of the entirety of the proceedings, has deprived the accused of a fair hearing (see also Pishchalnikov, cited above, § 67). It stated that since national laws may attach consequences to the attitude of an accused at the initial stages of police interrogation which are decisive for the prospects of the defence in any subsequent criminal proceedings, Article 6 will normally require that the accused be afforded a lawyer from these initial stages (see also Salduz, cited above, § 52). However, the Court had always recognised that the right to legal assistance could be subject to restrictions for good cause (see John Murray, cited above, § 63; Magee, cited above, § 41; Brennan v. the United Kingdom, no. 39846/98, § 45, ECHR 2001-X; and Pishchalnikov, cited above, § 67). At § 55 of its judgment in Salduz, cited above, the Grand Chamber set out the applicable principle as follows:

It can be seen from Salduz that in assessing the compatibility with Article 6 of instances of police interrogation without legal assistance, the Court considers two separate but linked matters. The first is whether there were ‘compelling reasons’ to delay access to legal assistance. A temporary restriction on access to legal advice will not, of itself, fall foul of Article 6 §§ 1 or 3 (c) where this test is satisfied.

However, applicants rarely complain of restrictions in respect of legal assistance in isolation. A witness or suspect interviewed by the police and released without charge has little interest in pursuing complaints about inadequate procedural guarantees. The alleged unfairness generally arises because statements made during police interrogation without legal advice are subsequently admitted as evidence in criminal proceedings. Thus, the second aspect of the Salduz principle holds that, even where a restriction on access to legal advice was justified for compelling reasons, and thus itself compatible with Article 6, it may nonetheless be necessary, in the interests of fairness, to exclude from any subsequent criminal proceedings any statement made during a police interview in the absence of a lawyer. The question, at this stage of the Court's assessment, is whether the admission of a statement made without access to legal assistance caused undue prejudice to the applicant in the criminal proceedings, taking into account the fairness of the proceedings as a whole.

In this respect, the general principles applied by the Court to questions of admissibility of evidence in criminal proceedings are relevant. As the Court has said on many occasions, admissibility of evidence is a matter for regulation by national law and the national courts and this Court's only concern is to examine whether the proceedings have been conducted fairly (see Panovits v. Cyprus, no. 4268/04, § 81, 11 December 2008; Gäfgen, cited above, § 162, and references therein). In making this evaluation the Court looks at the proceedings as a whole, having regard to whether the rights of the defence have been respected (see, for example, Bykov v. Russia [GC], no. 4378/02, § 90, 10 March 2009; Gäfgen, cited above, § 164; Lutsenko v. Ukraine, no. 30663/04, § 42, 18 December 2008; and Aleksandr Zaichenko, cited above, § 57). Pre-trial statements obtained in the absence of procedural guarantees should be treated with caution (see Lutsenko, cited above, § 51; and Zaichenko, cited above, § 56). When deciding whether the admission of a statement made without legal assistance was compatible with Article 6, the Court will examine, in so far as relevant to the case before it:

The facts regarding the availability of lawyers to represent or assist the first three applicant's following the latter's arrest have been set out in detail above. They clearly indicate

Thus it is apparent that although a lawyer was physically at the police station (albeit at the front desk and not at the custody suite) before the safety interview in respect of Mr Mohammed, this was not the case in respect of Mr Omar or Mr Ibrahim. As regards the availability of a lawyer to represent or assist the fourth applicant, the facts show that he did not request and was not offered the assistance of a lawyer during his initial police interview or while making his statement (see paragraphs 102–104 above), and that when he was subsequently arrested, cautioned and offered the services of a lawyer, he initially declined (see paragraph 110 above). He subsequently sought, and received, legal advice (see paragraph 111 above).

The first question to be examined is whether there were compelling reasons to restrict the applicants' access to legal advice in their early police interviews. The Court has no doubt that there were (compare and contrast Salduz, cited above, § 56; and, more generally, Panovits, cited above).

It is important to note, first, that the present case is different from the case of Salduz as the absence of a lawyer during the applicants' initial police questioning did not result from the systemic application of a legal provision (see Şedal v. Turkey (dec.), no. 38802/08, § 33, 13 May 2014; compare Dayanan v. Turkey, no. 7377/03, § 33, 13 October 2009; and Çimen v. Turkey, no. 19582/02, § 26, 3 February 2009). Under the law in force in England, all of the applicants had the right to legal assistance upon arrest and the legal framework required that individual decisions be taken in each case as to when an arrest was to be made and whether, having regard to all of the circumstances, legal assistance was, exceptionally, to be delayed in order to enable ‘safety’ interviews (see paragraph 17 above) to be carried out.

As the Government explained, the pressures and responsibilities of the police in the days after 21 July 2005 were substantial (see paragraph 162 above). Two weeks earlier, suicide bombers had detonated their bombs on the London transport system to devastating effect. The attacks had killed fifty-two people and injured countless more, and had temporarily disabled the entire London public transport system. When the first three applicants and Mr Osman detonated their devices two weeks later, the police had to work on the assumption that their conspiracy was an attempt to replicate the events of 7 July. At that stage, the police could not know why the bombs on 21 July had failed to explode and they had to assume that those responsible might attempt to detonate other bombs. The possibility of further loss of life on a large scale was no doubt foremost in their minds. The need to obtain, as a matter of critical urgency, information on any further planned attacks and the identities of those potentially involved in the plot, while ensuring that the integrity of the investigation was not compromised by leaks, was clearly of the most compelling nature.

As regards the first three applicants, the police were also operating under severe practical constraints. While there were extensive facilities at the police station for the detention of terrorist suspects and the investigation of terrorism offences, when the safety interviews were taking place the custody facilities were full. There were eighteen detainees arrested in connection with the attempted bombings, all of whom had to be detained separately to avoid communication and cross-contamination of forensic evidence (see the trial judge's ruling at paragraph 54 above). In spite of those pressures, save for the errors as to the wrong cautions (see paragraphs 15, 22–23, 25–26, 30, 36, 40, 45, 51, 55–58, 64, 67–68, 80, 93 and 134–138 above), the police adhered strictly to the legislative framework which regulated how they had to conduct their investigation (see paragraph 142 above). There is no doubt that the superintendents who authorised the restrictions on the applicants' access to legal advice had reasonable grounds for their beliefs that such restrictions were necessary in order to counter a reasonably perceived and serious threat to the safety of the public since those grounds were contemporaneously recorded by the police in the relevant custody records and they were full, compelling and convincing (see paragraphs 21, 33 and 42 above). That there did exist an underlying urgent purpose of such a compelling character is borne out by the fact that the police questioning of the first three applicants was focused and concentrated on the threat posed to the public, rather than being directed at establishing their criminality (as in the cases of John Murray and Magee, both cited above). It is further noteworthy that at the time that the restrictions were imposed, it was clear to the police that there were at least four men involved in the bombings, the last of whom, Mr Osman, was still at large. The applicants' submission that the police could have waited until their solicitors arrived before beginning the interrogation is misguided since it is evident that at least part of the reason for delaying access to legal advice was because the police were concerned that access to legal advice would lead to the alerting of other suspects (see paragraphs 21, 33 and 42 above).

The restriction on the fourth applicant's access to legal advice was of a different nature. He had voluntarily accompanied the police officers to the police station after agreeing to assist with the police investigation. As a witness, and not a suspect, there was no need for the police to consider whether the fourth applicant ought to be provided with legal advice. The fourth applicant asserts that he ought to have been placed under arrest and treated as a suspect, with all the procedural guarantees that status entailed. While the decision not to arrest and caution the fourth applicant at the point at which his answers began to suggest his involvement in a criminal offence was, as the Court of Appeal found, troubling (see paragraph 127 above) and in breach of Code C, the exceptional circumstances in which the police were operating must be borne in mind. Again as the Court of Appeal pointed out, the police dilemma at that stage was entirely understandable. The applicant was providing key information about the identity and whereabouts of the suspected fourth bomber, as well as details concerning the identity of the other bombers. At the time of the fourth applicant's first police interview on the evening of 27 July 2005, only Mr Omar had been arrested and he had provided no useful information on the nature of the plot or the identities of those involved. The remaining three bombers were still at large and their identification and arrest were imperative for public safety reasons. It was for the police to decide what course of action was most likely to lead to information on the extent of the risk to public safety and the whereabouts of the remaining bombers. The decision not to arrest the fourth applicant, apparently based on the fear that a formal arrest might lead him to stop disclosing information of the utmost relevance to the public safety issues facing the police, was not an unreasonable one in the circumstances. The imperative to obtain this information concerning the immediate safety of the public was of greater importance to the police at the time of the fourth applicant's questioning than any concern whether he had committed a criminal offence. Given the extreme conditions and time pressure under which they were then operating, this is not a decision that the Court can second-guess.

For the above reasons, the Court finds that it has been convincingly established that at the time of the impugned police interviews there was an exceptionally serious and imminent threat to public safety and that this threat provided compelling reasons which justified the temporary delay of all four applicants' access to lawyers.

It remains to be examined whether, even though the decision to delay the applicants' access to legal advice was justified in the circumstances of the case, the subsequent admission of statements that they made without legal advice unduly prejudiced their fair trial rights.